For affirmance -- Chief Justice Hughes and Justices Jacobs, Hall, Mountain, Sullivan and Clifford. For reversal -- Justice Pashman. The opinion of the Court was delivered by Sullivan, J. Pashman, J. (dissenting).
[65 NJ Page 128] In our opinion in Davenport v. App. Comm., N.J., 63 N.J. 433 (1973) (hereinafter Davenport I) we had occasion to consider the same plan for apportionment of the State Legislature as is now before us. The plan was prepared by the Apportionment Commission following our decision in Scrimminger v. Sherwin, 60 N.J. 483 (1972) in which, inter alia, we held that Senate districts should be
created without regard to the county-line theme of the State Constitution.
The Scrimminger mandate to disregard county lines was bottomed on the United States Supreme Court decisions in Whitcomb v. Chavis, 403 U.S. 124, 91 S. Ct. 1858, 29 L. Ed. 2d 363 (1971); Abate v. Mundt, 403 U.S. 182, 91 S. Ct. 1904, 29 L. Ed. 2d 399 (1971) and Connor v. Williams, 404 U.S. 549, 92 S. Ct. 656, 30 L. Ed. 2d 704 (1972) holding that substantial equality of population among legislative districts was the overriding object of the one-man, one-vote principle.
The trial court approved the new plan with a slight modification not here involved. However, on appeal the Appellate Division held, 124 N.J. Super. 30 (1973), that the recent opinion of the United States Supreme Court in Mahan v. Howell, 410 U.S. 315, 93 S. Ct. 979, 35 L. Ed. 2d 320 (1973), handed down after our decision in Scrimminger, had given new dimensions to the one-man, one-vote principle by permitting some deviation from absolute equality of population among election districts where effectuation of a State policy of maintenance of the integrity of political subdivision lines was involved.
After noting that in this State the county had always been a traditional political subdivision and that its citizens had a community of interest in governmental matters, the Appellate Division concluded that the trend towards absolute population equality in creating legislative districts had been significantly modified by Mahan, and that this Court might not abide by Scrimminger insofar as it required the Commission to create districts without regard to county lines. The Appellate Division conceived that in the light of Mahan this Court might well hold that under our State Constitution county lines should be respected as far as possible.
In Davenport I we held that Mahan and subsequently decided cases, Gaffney v. Cummings, 412 U.S. 735, 93 S. Ct. 2321, 37 L. Ed. 2d 298 (1973); White v. Regester, 412 U.S. 755, 93 S. Ct. 2332, 37 L. Ed. 2d 314 (1973), and
White v. Weiser, 412 U.S. 783, 93 S. Ct. 2348, 37 L. Ed. 2d 335 (1973), did not undercut our holding in Scrimminger that under the demographic pattern of the 1970 census there must be 40 individual Senate districts drawn necessarily without regard to the "whole county" theme of the State Constitution. However, we emphasized that when we spoke of "adherence to county lines" in Scrimminger we used that expression as the equivalent of adhering to the whole county in setting up the Senate districts, and did not have in mind adherence to less than all of the lines of a whole county. The Appellate Division opinion had projected this latter question as possibly required under our State Constitution.
We noted two constitutional provisions, Art. IV, § 2, para. 1 and Art. IV, § 2, para. 3, which might arguably support the thesis that there shall be placed within whole counties as many of the 40 Senate districts as can be, i.e., adherence to less than all the lines of a county as distinct from adherence to a whole county. Decision was withheld on this issue with the following comment, 63 N.J. at 447-448:
In deciding whether the Constitution demands that result, it may be helpful to know how many districts can be placed within whole counties, at what deviations, and with what pluses and minuses as between the voters of Senate districts so placed and the voters of Senate districts not so placed.
The record is inadequate for a decision upon this issue. We assume that a series of plans could be prepared to indicate what results could be achieved and the deviations involved. The parties may file pertinent material within 30 days from the date this opinion is filed and briefs 30 days thereafter. Any party may move for additional directions. A date for further argument will be fixed. We of course do not disturb the Appellate Division's determination that the general election scheduled for this year may proceed under the plan prepared by the Commission.
Following our opinion, several of the litigants submitted supplemental material as an aid towards resolution of the problem. Counsel for the Commission presented a study made in an effort to demonstrate the effect of increasing the
number of districts placed within whole counties. This study compared the two plans previously submitted to the Court (the Commission plan and plaintiff Dorothea Hummel's plan) and reviewed the 650 Senate district maps prepared by the Commission prior to its certification of the Senate districts for use in the 1971 elections.
The comparison of the two plans in various aspects suggested that "the lower the population deviations, the fewer the number of districts lying wholly within a county will be." Review of the 650 Senate district maps revealed the same direct relationship between population deviation and the straddling of county lines.
However, the Commission did not understand that it was being asked to prepare any additional plan or plans. Consequently, when further argument in this matter was had, the only Commission plan before us was the same one we considered on June 4, 1973, the date of the Davenport I argument herein.
The present constitutional provisions of our legislative structure, ratified and adopted in 1966, provide in Art. IV, § 2, para. 1 that the Senate shall be composed of 40 Senators and that Senate districts shall be composed whenever practicable of one single county, and, if not so practicable, of two or more contiguous counties. Article IV, § 2, para. 3 provides that the General Assembly shall be composed of 80 members and that each Senate district to which only one Senator is appointed shall constitute an Assembly district, and that multi-Senator districts shall be divided into Assembly districts equal in number to the number of Senators apportioned to that Senate district.*fn1 The last sentence of paragraph 3 reads as follows:
* * * 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.
It is apparent that the foregoing contemplates the use of whole counties, either singly or in combination with other counties, as the building blocks of the legislative structure. This concept applies to both Senate and Assembly districts, although, as to the latter it is recognized that in dividing a multi-member Senate district into Assembly districts, the requirement of population equality may compel some division of larger counties and municipalities.
In Scrimminger, we decided that the foregoing State constitutional mandate with respect to using counties as building blocks could not be enforced under the demographic pattern revealed by the 1970 census. As a result, the districting structure called for by present Article IV has been declared to be in violation of the Federal Constitution under the one-man, one-vote principle.*fn2
The question now presented is whether, although the whole-county concept must be abandoned, Article IV of the Constitution requires adherence to county lines to the extent possible, i.e., placing as many Senate districts as possible within whole counties.
It is argued that since the county unit has always been considered a political entity in this State, with its citizens sharing a community of interest in governmental matters, as many Senate districts as possible should be placed within whole counties so as to preserve to the voters in the Senate districts so placed this community of interest. It is urged that such is mandated by our present constitutional language.
We find no such meaning in Article IV, nor do we think valid apportionment policy requires such result. On the contrary, we think it clear that attempting to preserve some semblance of county voting strength would create a plethora of constitutional problems. Were dilution of county voting strength a required consideration in applying one-man, one-vote, the degree of dilution would have to be considered and equalized along with population, a difficult if not impossible task to perform.
We are satisfied that once the use of counties as building blocks was declared unenforceable, as it had to be under the demographic pattern shown by the 1970 census, the county concept ceased to have any viability in the creation of Senate districts.
Aside from the county line issue which necessarily includes the contention that there has been an inordinate fragmentation of particular counties, plaintiffs argue that several of the districts established under the present plan are of the "shoestring" or "horseshoe" type and lack the element of compactness*fn3 which we held in Scrimminger still obtained as a requirement. It is charged that these odd-shaped districts were created solely for the purpose of protecting incumbent legislators.
Compactness is an elusive concept. We noted in Scrimminger v. Sherwin, supra, 60 N.J. at 498, that it may be of limited utility in creating legislative districts in the light of the odd configurations of our State and its municipalities. It has never been held to constitute an independent federal constitutional requirement for State legislative districts. Gaffney v. Cummings, supra, 412 U.S. at 752, 93 S. Ct. at 2331, 37 L. Ed. 2d at 312, footnote 18. This Court has suggested that population equality is distinctly paramount to it and that where districts are created
on the basis of existing political subdivisions, compactness becomes a much reduced factor. Jackman v. Bodine, 49 N.J. 406, 419 (1967).
Political considerations are inherent in districting. In Gaffney v. Cummings, supra, 412 U.S., at 753, 93 S. Ct., at 2331, 37 L. Ed. 2d, at 312, the United States Supreme Court said:
The very essence of districting is to produce a different -- a more "politically fair" -- result than would be reached with elections at large in which the winning party would take 100% of the legislative seats. Politics and political considerations are inseparable from districting and apportionment.
While the carving out of bizarrely-shaped districts for partisan advantage will not be tolerated, the creation of balanced political districts serves a valid apportionment purpose.
The Commission concedes that there is incorporated in its plan the concept of political balance. It states that this concept necessarily flows from the bipartisan and geographically diverse nature of the Commission and the resultant need to compromise in order to agree on a plan. Accordingly, its plan strikes a balance of "Republican" and "Democratic" districts, with minimization of contests between present incumbents being employed as part of the balancing process.
This concept of "political fairness" has been approved as a relevant factor which may be taken into consideration in state legislative districting. Gaffney v. Cummings, supra. While the Supreme Court in Gaffney was concerned with the scope of federal review of a state legislative district plan, it recognized that the apportionment task is primarily a political and legislative process and that districting inevitably has and is intended to have substantial political consequences.
No contention is made that the Commission plan does not strike a fair political balance. No issue of racial or minority representation is presented. It is conceded that population-wise
the rate of deviation is extremely low. Aside from the alleged dilution of county voting strength, the only other attack made on it is the alleged lack of compactness of a few of the districts alleged to result from efforts to protect incumbents. It would appear that a plan with more compact districts could be prepared. However, that is not the only test to be applied here. Providing protection of incumbents serves a valid purpose and is a relevant factor to be taken into account in creating a legislative districting plan. White v. Weiser, supra, 412 U.S. at 797, 93 S. Ct. at 2355, 37 L. Ed. 2d at 347.
The judicial role in reviewing the validity of such a plan is limited. Reapportionment is essentially a political and legislative process. The plan must be accorded a presumption of legality with judicial intervention warranted only if some positive showing of invidious discrimination or other constitutional deficiency is made. The judiciary is not justified in striking down a plan, ...