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Yates v. Kelly

Decided: February 25, 1971.

CHARLES B. YATES, CRAIG YATES, ALBERT CARNIVALE, HARRY M. DANLEY AND THOMAS J. LEJAMBRE, PLAINTIFFS-APPELLANTS,
v.
EDWARD A. KELLY, JR., COUNTY CLERK OF BURLINGTON COUNTY, NANCY MAY, DOROTHY P. MAIN, EDWARD G. SNOW AND GLENN C. BAKER, MEMBERS OF THE BOARD OF ELECTIONS OF BURLINGTON COUNTY, DEFENDANTS-RESPONDENTS



Goldmann, Leonard and Mountain. The opinion of the court was delivered by Goldmann, P.J.A.D.

Goldmann

[113 NJSuper Page 534] The issue to be determined on this appeal is whether Assembly District 4B created by the Apportionment Commission in 1967, or Assembly District 4B as reconstituted by the Apportionment Commission in 1969, should be used in the forthcoming election to fill the vacancy created by the resignation of Burlington County

Senator Edwin B. Forsythe, who was elected to Congress at the November 1970 general election.

Jackman v. Bodine , 43 N.J. 453 (1964), declared invalid the Legislative Article of the New Jersey Constitution (1947) insofar as it dealt with the apportionment of members of the Legislature under Art. IV, § II, par. 1 (Senate) and § III, par 1 (General Assembly), and this on equal protection grounds. Reynolds v. Sims , 377 U.S. 533, 84 S. Ct. 1362, 12 L. Ed. 2d 506 (1964).

In order to comply with the requirements of the one man-one vote principle as delineated by the United States Supreme Court, the voters of New Jersey, at the general election held November 6, 1966, adopted amendments to Art. IV, §§ II and III, and Art. XI, § V of our Constitution, as proposed by the Constitutional Convention of 1966. Those amendments, as well as the work product of the Apportionment Commission created by Art. IV, § III for the purpose of establishing Senate Districts and Assembly Districts and for apportioning Senators and Assemblymen, came under attack in Jackman v. Bodine , 49 N.J. 406 (1967), and were rejected in part. Senate Districts were ordered reallocated where that would substantially reduce deviation with respect to particular districts and reduce state-wide deviation. The problem which faced the court was whether it should remand the matter to the Apportionment Commission for reconsideration in light of the views expressed in the opinion. Because the November 1967 election was imminent and since a reconsideration could entail Assembly districting throughout the State, the court deemed it unwise to direct the Commission to undertake and complete that task before the election. It was imperative that government continue, and for that reason, said the court, deviations which might otherwise be fatal would be tolerated for the time being. The work of the Apportionment Commission would be accepted for the purposes of the 1967 November election, leaving ample time for a full exploration of the challenged deviations and the reasons

therefor in preparation for the November 1969 election. To that end the Commission was to continue in office and make a reasonable recertification of Assembly Districts for that election. (At 419-420)

Among the Senate Districts created by the Apportionment Commission in 1967 was the Fourth, composed of Burlington and Ocean Counties and from which two Senators were to be elected. The Fourth Senate District was divided into two Assembly Districts. Assembly District 4A included Ocean County and the following municipalities located in Burlington County: Pemberton, Wrightstown, and the townships of Bass River, Eastampton, New Hanover, North Hanover, Pemberton, Shamong, Tabernacle, Washington and Woodland. Assembly District 4B included that portion of Burlington County not included in District 4A. A Senator was to be elected from each Assembly District.

On November 7, 1967 the voters in Assembly District 4B elected Edwin B. Forsythe to a four-year Senate term commencing January 9, 1968. He was sworn into office and continued to serve as State Senator until elected Congressman on November 3, 1970, whereupon he resigned.

In accordance with the decision in Jackman v. Bodine , above, 49 N.J. 406, and Art. XI, § V of our Constitution, the Apportionment Commission met and, after study and discussion, eventually on April 7, 1969 certified the establishment of Assembly Districts throughout the State. Assembly Districts 4A and 4B, constituting the Fourth Senate District, were reapportioned so that each had a population of 166,370. To accomplish this result the two districts were recast. The following municipalities, part of Assembly District 4B as set up in the 1967 apportionment, were now placed in 4A: Bordentown City, Bordentown Township, Burlington City, Burlington Township, Chesterfield Township, Edgewater Park Township, Borough of Fieldsboro, Florence Township, Mansfield Township and Westampton Township. On the other hand, the following

municipalities, formerly part of 4A, were placed in 4B: Pemberton and the Townships of Bass River, New Hanover, Pemberton, Shamong, Tabernacle and Washington.

The 1969 recertification of Assembly Districts by the Apportionment Commission came under attack in Jackman v. Bodine , 55 N.J. 371 (1970), because of deviations from mathematical equality between districts. The court held that a 1.5-1 ratio between the most and least populous districts was not inherently intolerable and, subject to certain qualifications and observations in the opinion, adjudged ...


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