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Scrimminger v. Sherwin

Decided: May 22, 1972.

JOSEPH M. SCRIMMINGER, ET AL., PLAINTIFFS-RESPONDENTS,
v.
PAUL J. SHERWIN, SECRETARY OF STATE OF THE STATE OF NEW JERSEY, AND APPORTIONMENT COMMISSION OF THE STATE OF NEW JERSEY, DEFENDANTS-APPELLANTS



For modification -- Chief Justice Weintraub and Justices Jacobs, Francis, Proctor, Hall, Schettino and Mountain. Opposed -- None. The opinion of the Court was delivered by Weintraub, C.J.

Weintraub

[60 NJ Page 484] This is our eleventh opinion dealing with apportionment under the one-man one-vote doctrine. Two related to the Congress, Jones v. Falcey, 48 N.J. 25 (1966); Koziol v. Burkhardt, 51 N.J. 412 (1968), and the others, as does this one, to the State Legislature, Jackman

v. Bodine, 43 N.J. 453 (1964); 43 N.J. 491 (1964); 44 N.J. 312 (1965); 44 N.J. 414 (1965); 49 N.J. 406 (1967); 50 N.J. 127 (1967); 53 N.J. 585 (1969), cert. denied, 396 U.S. 822, 90 S. Ct. 63, 24 L. Ed. 2d 73 (1969); 55 N.J. 371 (1970), cert. denied, 400 U.S. 849, 91 S. Ct. 39, 27 L. Ed. 2d 87 (1970).

The apportionment here involved followed the 1970 census. The trial court found the deviations from mathematical equality were intolerable under the doctrine of Reynolds v. Sims, 377 U.S. 533, 84 S. Ct. 1362, 12 L. Ed. 2d 506 (1964). Because of practical considerations, see Jackman, 43 N.J. at 473-474, the trial court permitted the election scheduled for 1971 to proceed under the plan, but held that no further election may be had under it. We certified the ensuing appeals before argument in the Appellate Division. The decision to permit the 1971 election to proceed is not challenged.

I

Our State Constitution provides for a Senate of 40 members and a General Assembly of 80 members. Art. 4, § II, paras. 1 and 3. The election districts are to be established by an Apportionment Commission after every decennial census of the United States. Art. 4, § III, para. 1. The Constitution directs the Commission to proceed as follows:

1. The 40 Senators shall be apportioned among Senate districts "as nearly as may be according to the number of their inhabitants as reported in the last preceding decennial census of the United States and according to the method of equal proportions." Art. 4, § II, para. 1.

2. "Each Senate district shall be composed, wherever practicable, of one single county, and, if not so practicable, of two or more contiguous whole counties." Art. 4, § II, para. 1.

3. Each Senator shall be elected by the voters of the Senate district, but "if the Senate district is composed of two

or more counties and two senators are apportioned to the district, one senator shall be elected by the legally qualified voters of each Assembly district." Art. 4, § II, para. 2.

4. With respect to the election of Assemblymen, the Constitution provides that if only one Senator is to be elected from a Senate district, that district will also constitute an Assembly district, and if more than one Senator is to be elected from a Senate district, then that district shall be divided into as many Assembly districts as there are Senators apportioned to that Senate district. Art. 4, § II, para. 3. Two Assemblymen shall be elected from each Assembly district. Art. 4, § II, para. 4. Finally the Constitution directs in Art. 4, § II, para. 3 that:

We emphasize some aspects of the foregoing constitutional plan. A central concept is that the Senate districts shall consist of whole counties, and of only one whole county if practicable. The Senators are to be elected by the whole Senate district with this exception, that if two Senators are to be elected from a multi-county Senate district, each Senator shall be elected from a constituent Assembly district. As we have construed the Constitution, the theme of that exception also applies if more than two Senators are to be elected from a multi-county Senate district, so that the candidates must run in Assembly districts, rather than at large in the Senate district. Jackman, 49 N.J. at 416.

Hence there are diversities with respect to the representation of whole counties in the Senate. If a whole county constitutes a Senate district entitled to one Senator, the voters of that county of course will elect him. If a whole county constitutes a Senate district entitled to more than one Senator, all the voters of the county elect all of the Senators. But if any county, whether it would be entitled by population to one or to more than one Senator if it were a separate district, is joined with one or more counties to constitute a district, then the Senators will be severally elected within Assembly districts, which may consist of either a part of one county or parts of more than one county.

We add that although the plan contemplates that Assemblymen will be apportioned among the Senate districts on the basis of two Assemblymen for every Senator, we concluded that to do so would compound any population deviation involved in the apportionment of the 40 Senators among Senate districts, and we therefore held the 80 Assemblymen must be apportioned among the Senate districts on the equal proportions method. Jackman, 49 N.J. at 416-417. As a result, an odd number of Assemblymen may be allocated to the Senate districts notwithstanding the State Constitution's theme that the Assemblymen be apportioned to Senate districts on the basis of two for each Senator. Accordingly some Assemblymen have run at large within a Senate district.

The command for adherence to county lines generates the issue before us. The difficulty stems from the circumstance that there are but 21 counties with substantial differences in population. For that reason, the counties, under the present distribution of the State's population, cannot constitute separate districts. Nor are they suitable building blocks for the formation of meaningful districts. The 1970 census figures available to the Commission*fn1 attributed to New Jersey

a population of 7,170,634, so that the ideal population per Senator was 179,266. The task of the Commission was to apportion the 40 Senators among counties with the following populations:

Cape May 59,554 Burlington 323,132

Salem 60,346 Morris 383,454

Hunterdon 69,718 Camden 456,291

Warren 73,879 Passaic 460,782

Sussex 77,528 Monmouth 461,849

Cumberland 121,374 Union 543,116

Gloucester 172,681 Middlesex ...


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