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March 3, 1982

George T. DAGGETT, Plaintiff,
Irwin I. KIMMELMAN, etc., et al., Defendants. Edwin B. FORSYTHE, et al., Plaintiffs, v. Thomas H. KEAN, etc., et al., Defendants

The opinion of the court was delivered by: FISHER

These consolidated cases bring under attack the constitutionality of P.L. 1982, c. 1, which creates districts for the election of United States representatives from New Jersey. Plaintiffs are concerned citizens, representatives of interested groups, incumbent Republican members of Congress, and other individuals with various interests. The defendants are the Governor, Attorney General and Secretary of State of New Jersey.

 We have permitted the incumbent Democratic members of Congress and other concerned persons to intervene as defendants. We have reserved decision on the motions to intervene of still others. Because of the decision here, their status will remain unchanged.

 This three-judge court was convened pursuant to 28 U.S.C. § 2284(a). The relief sought includes a declaration that P.L. 1982, c. 1 is unconstitutional and an injunction against the state officers to prevent them from implementing the Act by proceeding with the primary election insofar as it relates to candidates for the House of Representatives.

 At a hearing on February 19, 1982, the court directed the parties to take depositions, summarize the testimony, file affidavits and submit exhibits for final hearing on February 26, 1982. Between these dates, all parties moved for summary judgment pursuant to rule 56 of the Federal Rules of Civil Procedure.

 At final hearing, the parties agreed that if the motions for summary judgment were denied, they would have no further proofs to advance other than what then comprised the record. Because we prefer to decide the matter on the application for injunctive relief on the entire record, rather than by summary judgment, those motions are denied. The application for a preliminary injunction is consolidated with plaintiff's demand for a permanent injunction into a final hearing pursuant to Fed.R.Civ.P. 65(a). Counterclaims advanced on behalf of some of the parties are dismissed, either because this disposition of the case renders them moot, or because they do not constitute a cause of action.

 The 1980 decennial census recorded a population of 7,364,826 for the State of New Jersey. Heretofore, New Jersey had 15 congressional districts constituted by this court in David v. Cahill, 342 F. Supp. 463 (D.N.J.1972). Pursuant to the requirements of 2 U.S.C. § 2a(b), the Clerk of the United States House of Representatives has notified the Governor of the State of New Jersey that, on the basis of the 1980 decennial census, the number of representatives to which the state is entitled has been decreased from fifteen to fourteen. This notification has rendered the present apportionment of congressional districts unconstitutional.

 After this notification, it became the duty of the New Jersey legislature to reapportion the fourteen congressional districts in conformity with the mandate of art. I, § 2 of the United States Constitution and the standards of Kirkpatrick v. Preisler, 394 U.S. 526, 89 S. Ct. 1225, 22 L. Ed. 2d 519 (1969), and the cases that followed. On the day he left office, former Governor Brendan T. Byrne signed a bill sponsored jointly by Senator Matthew Feldman and Assemblyman Byron M. Baer which then became P.L.1982, c. 1. See Appendix A for Senate Bill 711, which became P.L.1982, c. 1, and a map of the districts as drawn by the Act. This litigation followed.

 The facts are clear and, in a general sense, not really disputed. They emerge from the exhibits, the affidavits, and especially from the testimony of Assemblyman Christopher Jackman, Speaker of the 199th Assembly and Speaker pro tem of the 200th; Senator Matthew Feldman, President pro tem of the Senate; Assemblyman Alan J. Karcher, Speaker of the 200th Assembly; and Assemblyman Richard Zimmer.

 The story really begins on August 7, 1981, when Ernest C. Reock, Jr., sent a "model" redistricting proposal to the leadership of the legislature and the Governor. On August 11, 1981, Reock sent the plan to all the members of the legislature. Mr. Reock was, and is, a research professor at Rutgers University since 1950 and Director of the Bureau of Government Research at Rutgers University since 1960. The Bureau of Government Research has three principal functions: to conduct research on problems of state and local government in New Jersey, to develop and to conduct training programs for local government officials in New Jersey, and to provide technical assistance to state agencies and officers, as well as to those members of the public interested in the problems of government.

 This plan or proposal, as amended, set forth fourteen congressional districts with an overall absolute range of deviation of 1,556 people and the overall relative range of 0.296%. By contrast, P.L.1982, c. 1, the present law, has an overall absolute range of deviation of 3,674 people and an overall relative range of deviation of 0.6984%.

 The Reock proposal prompted a remarkable reply from then Speaker of the Assembly Jackman. The letter is set forth in its entirety as Appendix B. This letter informed Professor Reock that redistricting was the business of the legislature and that the partisan majority had an interest in redistricting and would not subjugate its concerns. He added that Professor Reock's plan had no chance of adoption.

 There ensued thereafter a series of meetings between Democratic legislators, congressmen, and other interested persons to discuss the form and content of a redistricting bill. There were also contacts made with some Republican office-holders. Obviously, staff people were at work to develop a plan.

 When the 200th legislature convened, a number of redistricting bills were introduced until at last P.L.1982, c. 1 was passed and signed by the Governor.

 The deposition testimony indicates that the Democratic leadership was concerned with certain criteria. Assembly Speaker Karcher was interested in minimum deviations. In fact, he stated he was not interested in any bill with a deviation in excess of one percent. His further aims were to protect minority interests, the preservation of cores of pre-existing districts and the preservation of municipal boundary lines. He further indicated that he was interested in preserving the influence in Congress of certain senior Democratic incumbents.

 Senator Feldman, who sponsored the bill, indicated that he desired numerical equality as near to zero as possible. As additional priorities, he emphasized the importance of protection of black voters and a desire to keep counties, especially Bergen County, intact as far as possible.

 Every congressional redistricting plan must be measured against the requirement of art. I, § 2: "The House of Representatives shall be composed of Members chosen ... by the People of the several States ...." In Wesberry v. Sanders, 376 U.S. 1, 84 S. Ct. 526, 11 L. Ed. 2d 481 (1964), the Court held that "the command of Art. I, § 2 ... means that as nearly as is practicable one man's vote in a congressional election is to be worth as much as another's." 376 U.S. at 7-8, 84 S. Ct. at 529-530 (footnote omitted).

 The "as nearly as is practicable" standard was discussed in Kirkpatrick v. Preisler, 394 U.S. 526, 89 S. Ct. 1225, 22 L. Ed. 2d 519. In that case, the Court struck down a Missouri redistricting plan which contained a 5.97% total deviation. Missouri's primary argument was that the population variances were so small that they should be considered de minimus. The Court, however, ruled otherwise.


We reject ... (the) argument that there is a fixed numerical or percentage population variance small enough to be considered de minimus and to satisfy without question the "as nearly as practicable" standard .... (Rather), the ... standard requires that the State make a good faith effort to achieve precise mathematical equality.... Unless population variances among congressional districts are shown to have resulted despite such effort, the State must justify each variance, no matter how small.

 394 U.S. at 530-31, 89 S. Ct. at 1228-29 (citation omitted). See also Wells v. Rockefeller, 394 U.S. 542, 89 S. Ct. 1234, 22 L. Ed. 2d 535 (1969).

  In White v. Weiser, 412 U.S. 783, 93 S. Ct. 2348, 37 L. Ed. 2d 335 (1973), the Court declared a Texas plan with a total deviation of 4.13% unconstitutional. After failing to demonstrate that the population variances were unavoidable or justified, the State argued that Kirkpatrick and Wells should be modified to permit small population variances among congressional districts without requiring the State to justify them. However, the Court ruled that it was "not inclined to disturb Kirkpatrick and Wells." 412 U.S. at 793, 93 S. Ct. at 2353.

 Finally, in Chapman v. Meier, 420 U.S. 1, 95 S. Ct. 751, 42 L. Ed. 2d 766 (1975), the Court held that minor population deviations in state legislative districts do not establish a prima facie constitutional violation, "as contrasted with congressional districting, where population equality appears now to be the pre-eminent, if not the sole, criterion on which to adjudge the constitutionality, ...." 420 U.S. at 23 (citations omitted).

 P.L. 1982, c.1 can withstand constitutional attack only if the population variances "are unavoidable despite a good-faith effort to achieve absolute equality, or ... (if) justification is shown." Kirkpatrick, 394 U.S. at 531, 89 S. Ct. at 1229. It is clear that the .6984% population deviation of P.L. 1982, c.1 is not unavoidable. The legislature had the option of choosing from several other plans with a lower total deviation than .6984%. For example, the Reock plan contained a total deviation of .3250%, and only .2960% after it was amended. The DiFrancesco plan, S-3547, introduced on January 4, 1982, had a total deviation of .1253%. The Hardwick plan, A-3817, introduced on January 12, 1982, contained a total deviation of .4515%. The Bennett plan, A-614, and the Kavanaugh plan, A-615, although introduced one day after P.L. 1982, c.1 was signed into law, contain total deviations of .1369% and .0293%, respectively.

 In devising a redistricting plan, the Assembly leadership was concerned with drawing districts of equal population. However, this constitutional requirement was viewed as merely aspirational, with appropriate recognition to be given to such factors as the preservation of cores of pre-existing districts, the preservation of municipal boundary lines, and the preservation of the districts of incumbent Democratic Congressmen. Likewise, the Reock plan was rejected because it did not reflect the leadership's partisan concerns. Furthermore, the sponsor of P.L. 1982, c.1 stated on the floor of the Assembly that there cannot be a plan of precise population equality and that it was necessary to balance that factor against other criteria.

 The Senate leadership viewed the issue in similar terms. While acknowledging that plans with lower total deviations than P.L. 1982, c.1 existed, the leadership believed that population equality was not the only standard.

 Defendant-intervenors contend nevertheless that the population deviations in P.L. 1982, c.1 are justified by the legislature's goal of avoiding the dilution of minority voting strength. The plan makes a conscious effort, defendants argue, to preserve the Tenth District with a configuration and racial composition that makes it probable that a person chosen by black voters will be elected in that district. We need not decide whether this interest is sufficient to justify a deviation from population equality. First, defendant-intervenors have not attempted to demonstrate, nor can they demonstrate, any causal relationship between the goal of preserving minority voting strength in the Tenth District and the population variances in the other districts. The Fourth District contains the greatest variance in excess of the "ideal" district: 1,413 people, or .2666%. The Sixth District contains the greatest variance below the ideal district: 2261 people, or .4298%. We find that the goal of preserving minority voting strength in the Tenth District is not related in any way to the population deviations in the Fourth and Sixth Districts.

 Secondly, it is difficult to reconcile the goal of preserving minority voting strength with P.L. 1982, c.1's treatment of the City of Orange. Orange, a city with a high concentration of minority groups, is placed not in the Tenth District, but in the Eleventh. Defendant-intervenors argue that Orange was left out of the Tenth District so that Irvington and Hillside, towns with an alleged substantial immigration of black residents, could be included. However, projected population shifts may be considered in drawing a redistricting plan only when "these shifts can be predicted with a high degree of accuracy, ...." Kirkpatrick, 394 U.S. at 535, 89 S. Ct. at 1231. Furthermore, "findings as to population trends must be thoroughly documented and applied throughout the State in a systematic, not an ad hoc, manner." Id. Defendant-intervenors, having failed to document these expected population shifts, fall far short of this standard.

 Defendant-intervenors argue that the "as nearly as practicable" standard is satisfied when the population variation is less than the statistical imprecision of the census. Under this reasoning, defendant-intervenors conclude that the .6984% total deviation of P.L. 1982, c.1 is insignificant and should be considered the functional equivalent of mathematical equality. We reject such an approach. Whatever margin of error was present in the 1980 decennial census, there were similar limitations in the 1960 and 1970 decennial censuses when Kirkpatrick and White were decided. Despite this factor, the Court could not have spoken more clearly. "We reject ... (the) argument that there is a fixed numerical or percentage population variance small enough to be considered de minimus and to satisfy without question the "as nearly as practicable' standard." Kirkpatrick, 394 U.S. at 530, 89 S. Ct. at 1228.

 We conclude that P.L. 1982, c.1 does not comply with the mandate of art. I, § 2 and the standards of Kirkpatrick and White. Judgment will be entered declaring P.L. 1982, c.1 unconstitutional and enjoining the defendant state officers from conducting primary or general congressional elections under its terms. The legislature will have until March 22, 1982 to enact a new constitutional plan for reapportionment. If one is not forthcoming, this court will convene on March 26, 1982 to undertake further proceedings.

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