On petition for an exercise of original jurisdiction (Brady v. The New Jersey Redistricting Commission).
Clifford, Handler, Stein, Skillman, O'Hern
The opinion of the court was delivered by
Plaintiffs in these two proceedings mounted challenges to the Congressional-reapportionment plan that the New Jersey Redistricting Commission (hereinafter "Redistricting Commission" or "Commission") designed in March 1992. Following argument of their appeals in this Court on April 6, 1992, we issued an order on the following day, in view of the need for expeditious resolution of the issues. That order announced our decision upholding the plan and set forth our Conclusions that (1) the Legislature had the power to delegate to the Redistricting Commission the duty to develop a redistricting plan, and (2) plaintiffs had failed to demonstrate that the Commission's plan did not satisfy the applicable statutory criteria. This opinion sets forth the reasoning that supports those Conclusions.
As a result of population shifts revealed by the 1990 census New Jersey lost one Congressional seat, reducing the State's contingent in the United States House of Representatives from fourteen to thirteen until the year 2000. That circumstance required that New Jersey redraw district lines to redistribute the state's population into thirteen Congressional districts.
The State Legislature's two previous attempts to fashion Congressional-redistricting plans following the 1970 and the 1980 censuses had resulted in federal-court rulings on the validity of the redistricting plans for those decades. See Karcher v. Daggett, 535 F. Supp. 978 (D.N.J.), aff'd, 462 U.S. 725, 103 S. Ct. 2653, 77 L. Ed. 2d 1335 (1983), remanded, 580 F. Supp. 1259 (D.N.J.), aff'd, 467 U.S. 1222, 104 S. Ct. 2672, 81 L. Ed. 2d 869 (1984); David v. Cahill, 342 F. Supp. 463 (D.N.J. 1972). The likelihood of a bitter battle, confusion, and partisan discord regarding the plan for the current decade appeared almost certain, given the reversal of fortunes of the two major political parties in the November 1991 election.
Although the Democrats had controlled both houses in the State Legislature, the Republican party won veto-proof majorities in both houses in the 1991 elections. In January 1992 the composition of the State Legislature would change drastically. Conceivably, the Democratic majority could have passed, during the "lame-duck" period, a plan favorable to the Democratic interests -- a plan that certainly would have been replaced by a plan more favorable to Republican interests when the new Republican majorities assumed their seats at the outset of the next legislative session. The two parties, aware of the controversies surrounding the two previous redistricting plans and wishing to contain, if not avoid altogether, the discord that had surfaced in those earlier efforts, agreed on a new approach to devising the next redistricting plan: they would create a commission composed of an equal number of representatives from each party and one "independent" member chosen by the partisan participants.
In keeping with that arrangement the Legislature passed a law (the Act) creating the Redistricting Commission. See L. 1991, c. 510; N.J.S.A. 19:46-6 to -14. The Act allows each party to appoint six commissioners. N.J.S.A. 19:46-7(b). Those twelve partisan commissioners then select one independent member to serve as chairman of the Commission, N.J.S.A. 19:46-7(c), and to vote only if the vote of the other commissioners produces a tie, N.J.S.A. 19:46-9. To ensure that the plan receives public input, the Act contains the following requirements:
Meetings of the New Jersey Redistricting Commission shall be held at convenient times and locations. The Commission shall hold at least three public hearings in different parts of the State. The Commission shall, subject to the constraints of time and convenience, review written plans for the establishment of Congressional districts submitted by members of the general public.
However, the Act exempts the Commission from the requirements of the Open Public Meetings Act. Ibid.
The Act provides guidelines to enable the Commission to craft a plan that satisfies federal- and state-constitutional and statutory guidelines. N.J.S.A. 19:46-10 contains the substantive requirements of the plan. First, "each Congressional district shall be as nearly equal as practicable, and the difference in population between the most populous and least populous districts as small as practicable, as required by the Constitution of the United States and all applicable decisions of the Supreme Court of the United States." N.J.S.A. 19:46-10(b)(1).
no Congressional district shall be established [that] fragments an ethnic or racial minority community [that], if left intact, would constitute a majority or significant number of voters or potential voters within a single district with an ability to elect the candidate of their choice. For purposes of this paragraph, a minority community means any group enjoying special protection under the civil rights provisions of the Constitution of the United States and the federal "Voting Rights Act of 1965," as amended and supplemented (42 U.S.C., section 1973 et seq.).
Third, the Act requires the drawing of contiguous districts. N.J.S.A. 19:46-10(c). Finally, the Act provides that "to the fullest extent reasonable and when not in conflict with the foregoing standards, Congressional districts shall be drawn to preserve continuity from decade to decade." N.J.S.A. 19:46-10(d).
As applied to the 1992 Congressional elections the Act required submission of the plan on the later of two dates: March 20, 1992, or within three months after receipt by the Governor of the official statement by the Clerk of the House of Representatives regarding the number of Representatives to which the State was entitled. N.J.S.A. 19:46-9. Governor Florio signed the Act into law on January 21, 1992, leaving the Commission with approximately two months to formulate a plan. On February 13th the commissioners selected Dr. Alan Rosenthal, Director of the Eagleton Institute of Politics and Professor of Political Science at Rutgers University, to serve as the independent member.
Not surprisingly, deliberations concerning the reapportionment scheme continued until almost the last moment. With the March 20th deadline fast approaching and the possibility of a bipartisan plan diminishing, the partisan members decided that each party would present a plan to Rosenthal, who would cast the tiebreaking vote. Each party prepared a preliminary plan that the other party had an opportunity to critique, and the original plans were thereafter amended in some respects to deal with criticisms resulting from the exchange.
On March 17, 1992, three days before the deadline for submission of the plan, each side made its presentation to Rosenthal. Given the short time period remaining, those plans admittedly contained less detail than had been included in earlier submissions. The Republican and Democratic members each submitted an overall map of the state that showed the general outlines of the new districts under their respective plans. As well, each side submitted general descriptions of the proposed new districts, detailing the overall population distribution and ethnic composition, and demonstrating how the plans changed existing district boundaries. Rosenthal familiarized himself with the two competing proposals and ultimately endorsed the Republican plan, finding that it more closely followed the Act's guidelines. Further, Rosenthal found the Republican plan "politically fairer" and a more accurate reflection of the State's political tendencies.
The final vote on the redistricting plan occurred at a meeting on the afternoon of March 20th. Republican staffers used the time between the March 17th meeting and that vote to prepare a typewritten summary of the plan that Rosenthal had endorsed on March 17th.
We pause to distinguish between two items, each of which might be called "the plan": (1) the information on computer assigning voters to various districts, according to statutory mandate, which we refer to hereafter as the "master plan"; and (2) the typewritten summary that purported to reflect the content of the master plan, which we will refer to as the "data compilation." At the time of the March 20th vote, the data for the master plan were "locked into" a computer. At the meeting the Commissioners were furnished with the data compilation, which was intended to reduce the plan into a form usable by the Secretary of State and local election districts. The Commission approved the Republican plan by a vote of seven to six, and the data compilation was thereafter forwarded to the Secretary of State.
Several days later Dr. Stephen Salmore, a consultant to the Commission's Republican contingent, noted a number of errors in transcription that caused the data compilation not to reflect the plan approved by the Commission. Salmore communicated with John Sheridan, Esq., counsel to the Republican members, who then told Rosenthal that the data compilation contained errors and omissions that caused it to deviate from the master plan for which Rosenthal had voted on March 20th. Sheridan then explained how the errors had occurred and what changes were necessary to remedy them. Rosenthal agreed that the corrections did not change the plan but rather conformed it to the plan that he had approved, and therefore he approved their submission to the Secretary of State's office on March 24th. A day later, an error in the March 24th corrections was discovered and a final correction sent.
At the outset we seek to make clear the basis for this Court's jurisdiction. This appeal involves two cases: Save Our Shore District v. New Jersey Redistricting Commission, and Brady v. New Jersey Redistricting Commission. In Save Our Shore District, plaintiffs, a group of residents of what was then the third Congressional district, sought from the Chancery Division an injunction barring the implementation of the redistricting plan. They contended that the Legislature had impermissibly delegated to the Commission the duty of creating a new redistricting plan. Plaintiffs also challenged certain aspects of the Act and the Commission's actions as violative of equal-protection guarantees. The trial court refused to issue the injunction and granted defendants' cross-motion to dismiss for failure to state a claim. Plaintiffs appealed that determination to the Appellate Division. Because of the importance of the question involved, we certified the cause on our own motion. See Rule 2:12-1.
Brady, on the other hand, comes to us by a different route. Plaintiff, Jane Brady, a New Jersey resident and taxpayer, relied on the following provision in the Act:
Notwithstanding any statute, rule or regulation to the contrary and except as otherwise required by the Constitution of the United States or by any federal law, no court of this State shall have jurisdiction over any judicial proceeding challenging the actions of the New Jersey Redistricting Commission, including its establishment of Congressional districts under this act, except that the Supreme Court of this State shall have original and exclusive jurisdiction to consider any cause brought upon the petition of a legally qualified voter ...