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February 17, 1984

IRWIN I. KIMMELMAN, etc., et al., Defendants; EDWIN B. FORSYTHE, et al., Plaintiffs, v. THOMAS H. KEAN, etc., et al., Defendants; JAMES J. FLORIO, et al., Intervenors

The opinion of the court was delivered by: GIBBONS

 These consolidated cases are before us on remand from the Supreme Court, which on June 22, 1983 affirmed this court's holding that P.L. 1982, c.1 (codified at N.J. Stat. Ann. § 19:46-5 (West Supp. 1983-84) (hereinafter Feldman Plan)), creating districts for the election of Members of the House of Representatives from New Jersey, is unconstitutional, and enjoining the defendant state officers from conducting primary or general congressional elections under its terms. *fn1" This court's prior order fixed March 22, 1982 as the date for enactment by New Jersey of a new constitutional congressional redistricting plan, and provided that if no such plan was enacted by that date the court would convene to undertake further proceedings. Because the Supreme Court, on March 15, 1982, issued a stay of this court's injunction, *fn2" the 1982 congressional election took place under the Feldman Plan. The Supreme Court's affirmance of this court's order, however, restored the injunction. On December 19, 1983, this court fixed February 3, 1984 as the date by which New Jersey could enact a constitutional congressional redistricting plan, and February 7, 1984 as the date of a hearing on further proceedings if no such plan was enacted.

 At that hearing six separate redistricting proposals were advanced by various parties. No party urged that the next New Jersey congressional election be held on an at-large basis without districts. Instead, the parties unanimously urged that the court select the plan, among those admitted in evidence, which satisfied the constitutional standards for congressional districts, while most nearly satisfying non-constitutional criteria for fair districting. Thus the parties urged that the court should adopt a remedy similar to that adopted, following the 1970 decennial census, in David v. Cahill, 342 F. Supp. 463 (D.N.J. 1972). We note in passing that although the decree in David v. Cahill did not so require, the redistricting plan which it adopted was utilized for New Jersey congressional elections until the 1980 decennial census rendered it obsolete.

 The population of New Jersey in the 1980 decennial census, as most recently corrected by the Bureau of Census, is 7,365,011. New Jersey is entitled to representation in the House of Representatives by fourteen Representatives; one less than under the 1970 decennial census. Thus the ideal congressional district would have a population of 526,072.

 Article I, § 2, as interpreted by the Supreme Court, permits only such limited population variances from the standard of equal district population as "are unavoidable despite a good-faith effort to achieve absolute equality, or for which justification is shown." Karcher v. Daggett, U.S. at , 103 S. Ct. at 2658 (quoting Kirkpatrick v. Preisler, 394 U.S. 526, 531, 22 L. Ed. 2d 519, 89 S. Ct. 1225 (1969)). Moreover, a good-faith effort to achieve absolute equality is not established by producing a redistricting plan with a maximum population deviation "smaller than the predictable undercount in available census data." Karcher v. Daggett, U.S. at , 103 S. Ct. at 2658, 2662. Compare Daggett v. Kimmelman, 535 F. Supp. at 983, 985 (Gibbons, J., dissenting). Moreover, once it has been established that a redistricting plan "was not the product of a good-faith effort to achieve population equality," the burden shifts "to the State to prove that the population deviations in its plan were necessary to achieve some legitimate state objective." Karcher v. Daggett, U.S. at , 103 S. Ct. at 2663. Among the policies which may justify some variance are "making districts compact, respecting municipal boundaries, preserving the cores of prior districts, and avoiding contests between incumbent Representatives." Id. In the prior decision of this court we found that the State had failed to carry its burden of justification with respect to the Feldman Plan, and the Supreme Court affirmed that finding as not clearly erroneous. Id. at , 103 S. Ct. at 2665. Finally, the opinion of the court in Karcher v. Daggett, while declining to rely, as a constitutional violation, on the obviously partisan purposes behind the Feldman Plan, recognizes that "[a] federal principle of population equality does not prevent any State from taking steps to inhibit gerrymandering, so long as a good-faith effort is made to achieve population equality as well." Id. at n.6, 103 S. Ct. at 2660 n.6 (emphasis supplied).

 While Karcher v. Daggett considers what interests may be taken into account by state legislatures in justifying deviations from the ideal of district population equality based on the decennial census, it also provides useful instruction to district courts faced, as we are, with selecting a districting plan because of a failure in the legislative process. We may take into account at least those factors which the Court has recognized as legitimate, namely: making districts compact, preserving municipal boundaries, preserving cores of prior districts, avoiding contests between incumbents, and inhibiting gerrymandering. With those factors in mind we turn to the several plans which have been proposed.

 A. The Haverly Plan

 Taxpayers Political Action Committee, an intervenor, proposed Exhibit IM-1(a), a plan, and exhibit IM-1(b), a district map, produced at its request by C.A. Haverly, an expert in applied mathematics and computer science. Haverly's plan, according to his report, was designed with the objective of keeping the maximum population deviation of any district at less than +- 1%, preserving municipal boundaries, maximizing compactness and contiguity, avoiding county fragmentation, and preserving population stability from old to new districts. The Haverly plan, while reasonably attractive in other respects, proposes a population variation between the largest and smallest districts of 1.82%. An alternative version proposes a population variation of.85%. This variation between the largest and smallest districts is larger than any which would occur in the plans proposed by other parties. Since we must make a good-faith effort to maximize population equality, we decline to adopt Exhibit IM-1(a) as a remedy.

 B. Senate Bill 3564

 The Democratic Congressmen, intervenors, urge that the court adopt as a remedy the plan embodied in Senate Bill 3564 which passed the New Jersey Legislature, but was vetoed by Governor Kean. That plan, Exhibit IF-2(c), is reflected in the map, Exhibit D-6. A comparison of Exhibit D-6 with the map of the New Jersey congressional districts resulting from the Feldman Plan reveals that the districts are virtually identical. Some slight changes have been made, by moving municipalities among districts, so as to achieve a low district population of 526,020, and a high of 526,087, or a maximum variation of 67 persons and an absolute mean deviation of 11.50 persons. This plan produces a relative overall range of.01273%, and a relative mean deviation of.00218%.

 We need not consider how Exhibit IF-2(c) would have fared had it been validly enacted by the State of New Jersey. Compare Karcher v. Daggett, U.S. , 103 S. Ct. at 2667-78 (Stevens, J. concurring) with id. U.S. at , 103 S. Ct. at 2687-90 (Powell, J., dissenting). Senate Bill 3564 is proposed to us as a remedy. As such it does not meet the criteria which we consider relevant to the exercise of our discretion in devising a remedy. First, it does not achieve as small an overall or mean deviation as other plans which are in evidence. While it does succeed in preserving municipal boundaries, the population variances it would maintain are not maintained for that purpose, but rather for the purpose of preserving, as nearly as possible, the districts erected in the Feldman Plan. While Exhibit IF-2(c) preserves the cores of the districts established in the Feldman Plan, those districts are unconstitutional. The plan in Exhibit IF-2(c) has little if any relationship to the cores of districts established under David v. Cahill, and even less relationship to the cores of the last valid New Jersey congressional reapportionment enactment. Exhibit IF-2(c) avoids contests between incumbents. These contests are avoided, however, only because some incumbents moved in 1982 or ran outside their home district, thereby managing to win elections from unconstitutional districts. The most glaring defects in the Feldman Plan, however, are carried forward in Exhibit IF-2(c). These are an obvious absence of compactness, and an intentional gerrymander in favor of certain Democratic representatives.

 The proponents of the plan in Exhibit IF-2(c) urge that in fact the Feldman Plan was not a partisan gerrymander, but only a neutral effort by the legislature and the former Governor to provide for congressional representation roughly equivalent to the voting strength of the Democratic and Republican parties in the state. In support of that contention, they have produced computer generated analyses of the results, in each of the districts proposed in Exhibit IF-2(c), of several statewide elections. The ...

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