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Davenport v. Apportionment Commission

Decided: May 3, 1973.

FRANK DAVENPORT, ET AL., PLAINTIFFS-APPELLANTS,
v.
APPORTIONMENT COMMISSION OF THE STATE OF NEW JERSEY AND ROBERT M. FALCEY, ACTING SECRETARY OF THE STATE OF NEW JERSEY, DEFENDANTS-RESPONDENTS



Carton, Mintz and Seidman. The opinion of the court was delivered by Carton, P.J.A.D.

Carton

[124 NJSuper Page 34] This is the latest in a decade-long series of legislative apportionment cases considered by the courts of this State. Plaintiffs, residents of various municipalities in Union, Morris and Passaic Counties, challenge the districting plan certified on March 15, 1973 by the Apportionment Commission pursuant to N.J. Const. (1947), Article IV, § III, for state legislative elections this year and the remaining odd-numbered years of this decade. The gist of their respective complaints is that the Commission placed the municipalities in which they reside in districts consisting substantially of municipalities in another county or counties and that their ability as residents of their respective counties to maintain a strong voice in the State Legislature concerning matters of county interest has thereby been greatly diminished. The court below consolidated the various actions, conducted a hearing on them and dismissed

the complaints, refusing to stay the approaching primary election. However, the trial judge did order the separation of the Borough of Tuckerton from District 9 with which it was not contiguous and directed its inclusion in District 2. That determination was not appealed. Our Supreme Court denied certification.

At the outset we should say that we agree that district lines as approved by the court below should not be disturbed for this year's elections. The overriding objective in reapportionment must still be substantial equality of population among the various districts so that the vote of any citizen is approximately equal to that of any other citizen in the State. See Mahan v. Howell , 410 U.S. 315 at 322, and 325, 93 S. Ct. 979 at 984 and 985, 35 L. Ed. 2d 320, at 329 and 331 (1973). The present plan with its maximum populations deviations from the ideal "one-man, one-vote" district of .854% and -1.389% satisfies that objective. Furthermore, in awarding or withholding immediate relief in a reapportionment case, the court should consider the proximity of the forthcoming election and the mechanics and complexities of state election laws. 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 the requirement of the court's decrees. Reynolds v. Sims , 377 U.S. 533, 585, 84 S. Ct. 1362, 12 L. Ed. 2d 506 (1964); Mahan v. Howell, supra , 410 U.S. at 330, 93 S. Ct. at 988, 35 L. Ed. 2d at 334. With somewhat less severe time restrictions that this court now faces, our Supreme Court has declined to award immediately relief even where the complaint has had merit. See Jackman v. Bodine , 53 N.J. 585 (1969); Jackman v. Bodine , 49 N.J. 406 (1967); Jackman v. Bodine , 44 N.J. 312 (1965).

Our decision not to disrupt this year's election process does not mean that we approve the Apportionment Commission's districting plan now before us. As we point out later, on the basis of the record before us we have grave doubts as

to whether the plan complies completely as it should with state constitutional requirements.

A brief history of the reapportionment controversy will serve to provide a background for considering the specific respects in which the plan may be defective. In Baker v. Carr , 369 U.S. 186, 82 S. Ct. 691, 7 L. Ed. 2d 663 (1962), the United States Supreme Court held that the apportionment of seats in a state legislature may be a justiciable question. In the wake of that decision, an attack was launched on this State's system of legislative representation under the 1947 (and 1844) Constitution -- one senator allotted to each county and 60 assemblymen apportioned among the counties on the basis of population, but with each county receiving at least one. The trial court in Jackman v. Bodine , 78 N.J. Super. 414 (Ch. Div. 1963), ruled that Baker v. Carr, supra , permitted apportionment on other than a "one-man, one-vote" basis when that basis was a rational one. It concluded that a system of equal representation for counties of unequal population was rational. The ensuing appeal was certified by our Supreme Court and the decision withheld until the publication of the landmark opinion of Reynolds v. Sims, supra.

Reynolds held that both houses of a bicameral state legislature must be apportioned on a population basis. 377 U.S. at 568, 84 S. Ct. 1362. Consequently, our Supreme Court declared the allocation of one state senator per county to be unconstitutional. The court enjoined further elections under the 1947 Constitution and suggested that the Legislature adopt an interim plan consonant with the opinion and call a Constitutional Convention. Jackman v. Bodine , 43 N.J. 453 (1964).

Subsequently a legislative resolution attempting to retain the structure of the Senate but providing for weighted voting was declared a nullity, Jackman v. Bodine , 43 N.J. 491 (1964), and an application for one more election under the then existing structure was denied, Jackman v. Bodine , 44 N.J. 312 (1965).

In 1965 the Legislature adopted L. 1965, c. 19 (N.J.S.A. 52:10B-1 et seq.) which retained the method of apportioning members of the Assembly but enlarged the Senate to 29 members and created new senatorial districts. Each of these 14 new districts was composed of one or more whole counties and each was entitled to from one to four senators, depending on relative population. N.J.S.A. 52:10B-4. Our Supreme Court approved this interim plan in Jackman v. Bodine , 44 N.J. 414 (1965).

A Constitutional Convention met in 1966 and rewrote those sections of Article IV of the 1947 Constitution concerning the composition of the Legislature. The voters of the State ratified the proposed amendments in the general election of that year. The new Senate consisted of 40 members, the General Assembly of 80. The amendments provided for apportionment of the 40 members among Senate districts "as nearly as may be according to the number of their inhabitants," but each Senate district was required to be composed, "wherever practicable, of one single county, and, if not so practicable, of two or more contiguous whole counties." N.J. Const. (1947) Art. IV, § II, par. 1. In the case of a Senate district composed of two or more counties with two senators apportioned to the district, the senators were required to run singly in Assembly districts N.J. Const. (1947), Art. IV, § II, par. 2.

The amendments directed that each Senate district be divided into Assembly districts equal in number to the number of Senators apportioned to the Senate district, with two assemblymen to be elected from each Assembly district. The amendments detailed guidelines for the drawing of Assembly district lines:

The new constitutional provisions provided that the legislative district lines be drawn by an Apportionment Commission consisting of ten members, five of whom were to be appointed by each of the major party state chairmen. N.J. Const. (1947), Art. IV, § III, par. 1. They provided for appointment of an eleventh member by the Chief Justice if a deadlock ensued. Id. , Art. IV, § III, par. 2. The Commission was directed to perform its work regularly after the publication of each decennial census. Id. , Art. IV, § III, par. 3.

New district lines were drawn for the 1967 elections. However, our Supreme Court, in Jackman v. Bodine , 49 N.J. 406 (1967), invalidated the new provision that assemblymen always be allotted to each Senate district at a ratio of two per senator, at least as it applied to Passaic and Union Counties. The court also disapproved of the entire senatorial districting scheme in the most southerly portion of the State and ruled that the constitutional provision for election of senators singly by Assembly districts when the senatorial district consisted of more than one whole county applied to all such multi-member districts, not just those allotted only two senators, as specified in Art. IV, § II, par. 2 of the Constitution. The court took these actions to reduce population deviation among districts to the minimum indicated in continuing United States Supreme Court reapportionment decisions. See Swann v. Adams , 385 U.S. 440, 87 S. Ct. 569, 17 L. Ed. 2d 501 (1967). The court further ordered the Apportionment Commission to draw new lines for the 1969 Assembly elections consistent with its decision.

The next three reapportionment decisions emanated from this 1967 Jackman decision. In Jackman v. Bodine , 50 N.J. 127 (1967), the court approved the Commission's redrawing of district lines in the southern counties and ordered the odd assemblymen allotted to Passaic and Union Counties to run at large in the county rather than by Assembly district for that year's election. In Jackman v. Bodine , 53 N.J. 585 (1969), the court accepted the Commission's work for the 1969 Assembly elections, and in Jackman v. Bodine , 55 N.J. 371 (1970), the court approved the state constitutional scheme for the 1971 election of both houses.

Last year our Supreme Court once again considered the entire system of legislative representation in this State, however, and concluded that sweeping changes were necessary to insure that the legislative districts would conform to the increasingly rigid one-man, one vote principle as further developed by the federal Supreme Court. The court ordered that after 1973 all senators represent single-member districts and that two assemblymen be allotted to each of these districts. It further ordered the Apportionment Commission to draw these district lines without regard to county boundaries, paying attention only to substantial equality of population, municipal boundaries, contiguity and, to a limited extent, the constitutional requirement of compactness. See Scrimminger v. Sherwin , 60 N.J. 483 (1972).

In so ruling the Scrimminger court referred particularly to the federal Supreme Court decisions in Connor v. Williams , 404 U.S. 549, 92 S. Ct. 656, 30 L. Ed. 2d 704 (1972); Whitcomb v. Chavis , 403 U.S. 124, 91 S. Ct. 1858, 29 L. Ed. 2d 363 (1971), and Abate v. Mundt , 403 U.S. 182, 91 S. Ct. 1904, 29 L. Ed. 2d 399 (1971). In Connor the court disapproved of a Mississippi legislative districting plan which contained a total variance of 18.9% between the largest and smallest Senate districts and 19.7% between the largest and smallest House districts. The court did not upset the plan, however, because the election had already been held.

In Whitcomb the Supreme Court affirmed a lower court's determination that an Indiana apportionment plan, although it followed a policy of adhering to county lines, was invalid because the total variance among Senate districts was 28.20% and among House districts, 24.78%. Our Supreme Court commented:

We read Whitcomb to mean that such deviations are invalid notwithstanding the stated purpose of the apportionment (i.e. , to adhere to county lines), and even though that purpose could not be satisfied by another arrangement involving lesser deviations. * * * [ Scrimminger v. Sherwin, supra , at 493 of 60 N.J. ]

Abate involved county government. The court held that the need for flexibility, the desire to preserve the integrity of political subdivisions, and the limited number of representatives involved "lend support to the argument that slightly greater percentage deviations may be tolerable for local government apportionment schemes" than in the case of their state or national counterparts. 403 U.S. , at ...


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