For affirmance as modified -- Chief Justice Weintraub, and Justices Jacobs, Proctor, Hall, Mountain and Sullivan. For reversal -- None. The opinion of the Court was delivered by Weintraub, C.J.
In Scrimminger v. Sherwin, 60 N.J. 483 (1972), we held invalid the plan for apportionment of the State Legislature adopted after the 1970 census. We remanded the subject to the Apportionment Commission for the preparation of another plan. The Commission then adopted the plan now before us. The trial court upheld the plan, with a slight modification not here involved. The Appellate Division held the primary and general elections scheduled for this year may proceed under that plan but expressed doubts as to the plan's validity. 124 N.J. Super. 30 (1973). A petition for certification was filed with us. We directed oral argument with respect to it. Certification is granted.
The Appellate Division conceived that we might not abide by Scrimminger in the light of the later case of Mahan v. Howell, 410 U.S. 315, 93 S. Ct. 979, 35 L. Ed. 2d 320 (1973). Mahan does not affect the holding of Scrimminger, as we will point out in Part I below. But the Appellate Division opinion in the present case projects another question not considered in Scrimminger, and this we will develop in Part II below.
To judge the impact of Mahan, it is necessary to discuss Scrimminger at some length.
Our Constitution provides for a bicameral Legislature, the Senate to have 40 members and the General Assembly twice that number. A central concept of the Constitution is that the Senate districts shall consist of one or more whole counties, whereas the Assembly districts shall be portions of a Senate district except where only one Senator is to be elected in the Senate district, in which event the Senate district and the Assembly district are coterminous. We held in Scrimminger that under the demographic pattern revealed by the 1970 census, it was impossible to execute the design of our State Constitution that Senate districts shall consist of one or more whole counties, and this because the range of population
deviation among the districts would exceed the deviation tolerable under the one-man one-vote concept developed by the United States Supreme Court. We concluded the Apportionment Commission had to draw 40 Senate districts, of equal population, and this in disregard of our State Constitution's mandate that Senate districts consist of one or more whole counties.
The pertinent provisions of our State Constitution are in Article IV, Section 2. Paragraph 1 reads:
"The Senate shall be composed of forty senators 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. Each Senate district shall be composed, wherever practicable, of one single county, and, if not so practicable, of two or more contiguous whole counties."
Paragraph 2 provides in part:
"Each senator shall be elected by the legally qualified voters of the Senate district, except that 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. * * *"
"The General Assembly shall be composed of eighty members. Each Senate district to which only one senator is apportioned shall constitute an Assembly district. Each of the remaining Senate districts shall be divided into Assembly districts equal in number to the number of senators apportioned to the Senate district. The Assembly districts shall be composed of contiguous territory, as nearly compact and equal in the number of their inhabitants as possible, and in no event shall each such district contain less than eighty per cent nor more than one hundred twenty per cent of one-fortieth of the total number of inhabitants of the State as reported in the last preceding decennial census of the United States. Unless necessary to meet the foregoing requirements, no county or municipality shall be divided among Assembly districts unless it shall contain more than one-fortieth of the total number of inhabitants of the state, and no county or municipality shall be divided among a number of Assembly districts
larger than one plus the whole number obtained by dividing the number of inhabitants in the county or municipality by one-fortieth of the total number of inhabitants of the State."
We call attention to the last sentence in paragraph 3; it is a key provision with respect to the issue discussed in Part II of this opinion.
The whole county concept led to diverse treatment of voters, depending upon whether the voter's county itself constituted a Senate district to which only one Senator was apportioned, was grouped with one or more whole counties to create a district, or was itself a multi-member district. To repeat from Scrimminger, 60 N.J. at 486-487:
"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 [ Bodine ], 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 ...