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McNeil v. Legislative Apportionment Commission of the State New Jersey

July 31, 2003

ANNE M. MCNEIL, THOMAS E. WILLIAMS, ROSEANNA SIEBERT, PAUL DIGAETANO AND KEVIN O'TOOLE, PLAINTIFFS-RESPONDENTS,
v.
THE LEGISLATIVE APPORTIONMENT COMMISSION OF THE STATE OF NEW JERSEY, DEFENDANT-APPELLANT, AND REGENA L. THOMAS, SECRETARY OF STATE OF NEW JERSEY AND PETER C. HARVEY, ACTING ATTORNEY GENERAL OF NEW JERSEY, DEFENDANTS-RESPONDENTS.



On certification to the Superior Court, Appellate Division, whose opinion is reported at 357 N.J. Super. 74 (2003).

SYLLABUS BY THE COURT

In this appeal, the Court is asked whether the New Jersey Constitution's political boundary requirement, Article IV, Section 2, Paragraph 3, now can be validly enforced with respect to Newark and Jersey City, the State's two largest municipalities.

On April 11, 2001, the New Jersey Legislative Apportionment Commission (Commission) adopted the Bartels redistricting plan, after the appointment of an independent eleventh member, Dr. Larry Bartels, following an impasse on the plans initially submitted by the Republicans and Democrats. Like the initial plans, the Bartels plan divided Newark and Jersey City into three districts each. Two federal suits followed. In the first, Page v. Bartels, 144 F. Supp. 2d 346 (D.N.J. 2001), Republicans and others alleged that the plan violated Section 2 of the Voting Rights Act of 1965 (VRA) and plaintiffs' Due Process and Equal Protection rights under the Fourteenth and Fifteenth Amendments of the United States Constitution, and that the plan would dilute the minority vote. In the second suit, Robertson v. Bartels, The opinion of the court was delivered by: Coleman, J.

Argued April 28, 2003

No redistricting plan adopted in New Jersey since the inception of the "one person, one vote" doctrine in 1964 has conformed with our State Constitution's political boundary requirement for the State's two largest municipalities. Since that time, Newark and Jersey City have been divided into at least three districts each. The issue raised in this appeal is whether the New Jersey Constitution's political boundary requirement now can be validly enforced with respect to Newark and Jersey City. We conclude that it may not without violating the Supremacy Clause.

I.

After every decennial United States Census, a bipartisan New Jersey Legislative Apportionment Commission (Commission) is created to redraw the forty Senate and Assembly districts and to apportion Senators and Assemblypersons among those districts. N.J. Const. art. IV, § 2, ¶1. The Commission consists of ten members, five members appointed by each State Committee for the two major political parties. N.J. Const., art. IV, § 3, ¶1. On March 8, 2001, the Governor of New Jersey received the official report from the 2000 Census. The Commission has one month, following receipt of the census to certify by a majority of the Commission, a redistricting and reapportionment plan. Both the Republicans and the Democrats proposed separate plans containing three districts for Newark and Jersey City; neither plan received a majority vote.

Pursuant to Article IV, Section 3, Paragraph 2 of the New Jersey Constitution, when the Commission reached an impasse, Chief Justice Poritz appointed an independent eleventh member, Dr. Larry Bartels. Following that appointment, the Commission was allowed an additional month to redistrict and reapportion. N.J. Const. art. IV, § 3, ¶2. On April 11, 2001, the Commission adopted the Bartels plan, which was a modified version of the plan proposed by the Democrats. The vote was six to one; the only dissent came from the one Republican member present for the vote. The plan divided Newark and Jersey City into three districts each. That plan divided Newark among the 27th, 28th and 29th districts and divided Jersey City among the 31st, 32nd and 33rd districts.

On the same day that the plan was filed with the New Jersey Secretary of State, the Republicans and others subject to the ripple effect of that plan, filed suit in the United States District Court for the District of New Jersey to block implementation of the plan. Page v. Bartels, 144 F. Supp. 2d 346, 349 (D.N.J. 2001). The Page plaintiffs alleged that the Commission's actions violated Section 2 of the Voting Rights Act of 1965 and plaintiffs' Due Process and Equal Protection rights under the Fourteenth and Fifteenth Amendments of the United States Constitution. Id. at 349-50. The plaintiffs argued that the Bartels plan would dilute the minority vote. Id. at 353.

The Commission urged that the plan divided Newark and Jersey City into three districts, as had been the case for nearly four decades, to spread out black and Hispanic voters into a number of districts, id. at 353-54, a process commonly referred to as "unpacking." See Robertson v. Bartels, 148 F. Supp. 2d 443, 459 (D.N.J. 2001). The three-judge panel established pursuant to 28 U.S.C.A. § 2284*fn1 ruled in favor of the Commission. Page, supra, 144 F. Supp. 2d at 369.

Fifteen days after Page had been filed and was still pending, the Republicans brought a new challenge in federal court. Robertson, supra, 148 F. Supp. at 446. In that case, plaintiffs alleged that the 2001 plan resulted in unconstitutional racial gerrymandering in violation of the Fourteenth Amendment. Ibid. The Page court upheld the plan under the Voting Rights Act as well as the Fourteenth and Fifteenth Amendments on May 7, 2001. Page, supra, 144 F. Supp. 2d at 369. Similarly, the Robertson court concluded on June 18, 2001, that the Bartels plan satisfied all applicable federal and state criteria for redistricting. Robertson, supra, 148 F. Supp. 2d at 458. The Supreme Court summarily affirmed that determination on January 22, 2002. 534 U.S. 1110, 122 S. Ct. 914, 151 L. Ed. 2d 881. The general election in 2001 and the primary election in 2003 were conducted under the Bartels plan.

The complaint in the present case was filed on May 9, 2001, alleging that because the Bartels plan carves Newark and Jersey City each into three legislative districts, it violates the plain language of Article IV, Section 2, Paragraph 3 of the New Jersey Constitution. That provision establishes the political boundary requirement for districts by providing that "[u]nless necessary to meet the [contiguity, compactness or equal population] 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...." Ibid. Of the 566 municipalities in this State, Newark and Jersey City, the two largest, are the only ones whose political boundaries have been breached by the Bartels plan.

On cross-motions for summary judgment, the trial court ruled, among other things, that the Commission was not bound by the restrictions set forth in Article IV, Section 2, Paragraph 3. More particularly, the court held that the abrogation of the county-line mandate, announced first in Scrimminger v. Sherwin, 60 N.J. 483 (1972), and subsequently reexamined and reaffirmed in Davenport v. Apportionment Commission, 65 N.J. 125 (1974), released the Commission from the necessity of adhering to the whole-municipality concept in cases of large municipalities such as Newark and Jersey City. The court, therefore, granted summary judgment to the Commission.

The Appellate Division reversed, declaring that the language of Article IV, Section 2, Paragraph 3 that requires dividing Newark and Jersey City into two districts never was invalidated under our prior case law but remains the starting point for legislative apportionment. The court, in effect, granted summary judgment in favor of plaintiffs, remanding the case to the Commission for creation of a redistricting plan that conforms with our Constitution. We granted the Commission's petition for certification, 176 N.J. 71 (2003), and stayed the

Appellate Division judgment. We now reverse.

II.

A.

The analysis must begin with a historical review of Article IV, Section 2, Paragraph 3 of the New Jersey Constitution because, as Justice Oliver Wendell Holmes said, "a page of history is worth a volume of logic." New York Trust Co. v. Eisner, 256 U.S. 345, 349, 41 S. Ct. 506, 507, 65 L. Ed. 2d 963, ___ (1921). Another famous jurist, Judge Learned Hand, teaches that literalism must be avoided because "[t]here is no surer way to misread any document than to read it literally." Guiseppi v. Walling, 144 F.2d 608, 624 (2d Cir. 1944) (Hand, J., concurring), aff'd sub nom., Gemsco, Inc. v. Walling, 324 U.S. 244, 65 S. Ct. 605, 89 L. Ed. 921 (1945). See LaFage v. Jani, 166 N.J. 412, 431 (2001) (citing Jersey City Chapter Prop. Owner's Protective Ass'n v. City Council, 55 N.J. 86, 100 (1969)). The history and evolution of our state constitutional provision pertinent to legislative reapportionment and redistricting are informative of our disposition of this case.

In 1962, Baker v. Carr, 369 U.S. 186, 200, 82 S. Ct. 691,701, 7 L. Ed. 2d 663, __, held that federal courts have jurisdiction to decide whether a state apportionment plan for election to its legislature violates the Fourteenth Amendment. At the time Baker was decided, the 1947 New Jersey Constitution, Article IV, Section 2, Paragraphs 3 and 4, allocated at least one Senator and one Assemblyperson from each county regardless of population. Jackman v. Bodine, 78 N.J. Super. 414, 434 (Ch. Div. 1963). That prompted Christopher Jackman, a resident of West New York in Hudson County, and Winfield Chasmar, a resident of Verona in Essex County, to file a case in the Chancery Division claiming that the New Jersey Constitution violated the Equal Protection Clause of the Fourteenth Amendment. Id. at 417. Then-Judge Pashman sitting in the Chancery Division rejected plaintiffs' claims. Id. at 434.

On direct appeal, this Court, after withholding its decision until a group of cases had been decided by the United States Supreme Court, including Reynolds v. Sims, 377 U.S. 533, 568, 84 S. Ct. 1362, 1385, 12 L. Ed. 2d 506, __ (1964) (establishing the "one person, one vote" principle), declared that the legislative article of our State Constitution was invalid. Jackman v. Bodine, 43 N.J. 453, 473 (1964) (Bodine I).

The Court concluded that based on Reynolds, the Equal Protection Clause demands that in a bicameral state legislature, such as New Jersey's, the seats of both houses must be apportioned substantially based on population. Id. at 458 (citing Reynolds, supra, 377 U.S. at 568, 84 S. Ct. at 1385, 12 L. Ed. 2d at 531). The Court made it clear that apportionment and districting should be accomplished through the legislative branch rather than the judicial branch because "the prescription of a [new legislative] plan of apportionment is laden with political controversy from which the judiciary cannot be too distant."

Id. at 473.

Jackman v. Bodine, 43 N.J. 491, 493 (1964) (Bodine II), held that a resolution adopted by the Senate on November 16, 1964, following arguments in Bodine I, but nine days before the decision was rendered, providing for "weighted voting" was invalid. The Court reasoned that a single chamber of a bicameral legislature could not establish the procedure creating a new apportionment-districting plan. Ibid.

In Jackman v. Bodine, 44 N.J. 312, 315 (1965) (Bodine III), the President of the Senate sought permission of the Court to permit the November 1965 election to proceed under the legislative plan that had been invalidated in Bodine I. The

Court rejected the request and required a statutory remedy pending a constitutional convention. Id. at 316. Thereafter, the Legislature adopted a plan for the temporary reapportionment of the Legislature, L. 1965, c. 19, codified as N.J.S.A. 52:10B-1 et seq., repealed by L. 1979 c. 431, § 1, eff. Feb. 14, 1980, that "continued the present apportionment of the General Assembly and established an interim plan for the Senate." Jackman v. Bodine, 44 N.J. 414, 416 (1965) (Bodine IV). An application to invalidate that statutory plan was rejected because "[t]he pressing immediate need is to obtain a legislative body substantially close to the demands of Reynolds v. Sims." Id. at 420-21. Therefore, the November 1965 election was conducted under a temporary statutory scheme rather than a constitutional provision.

At the general election held November 8, 1966, the voters of New Jersey adopted amendments to the New Jersey Constitution, including Article IV, Section 2, to correct the malapportioned Legislature condemned in Reynolds and Bodine I. Article IV,

Section 2, Paragraph 1 provides that the Senate shall consist of forty members who would be apportioned among districts constructed based on proportionality of population. In addition, Article IV, Section 2, Paragraph 3 provides that the General Assembly shall consist of eighty members, two Assemblypersons for each Senator. The 1966 amendments were attacked in Jackman v. Bodine, 49 N.J. 406 (1967) (Bodine V).

The Bodine V Court required some district lines to be altered in order to reduce population deviation. Id. at 415. The Court also held that, although population discrepancies between Assembly districts within each Senate district had to be corrected, the Commission need not recertify the Assembly districts until prior to the 1969 election. Id. at 419-20.

Following Bodine V, the Commission reconvened and prepared a new redistricting plan with respect to four counties. Jackman v. Bodine, 50 N.J. 127, 128 (1967) (Bodine VI). As a result of that modified redistricting plan, this Court was asked to intervene. Ibid. After the trial court upheld the Commission plan, this Court examined that redistricting plan and concluded that the adopted plan contained the smallest possible population deviation and that the districts sufficiently were compact to survive the challenge. Id. at 128-29. This Court concluded that because there was insufficient time to remand to the Commission for additional consideration, the election should be conducted under the existing plan as had occurred in Bodine V. Id. at 129-30.

The Commission did not recertify a new legislative plan under the Bodine V and VI guidelines until April 1969. Jackman v. Bodine, 53 N.J. 585, 587 (1969), cert. denied, 396 U.S. 822, 90 S. Ct. 63, 24 L. Ed. 2d 73 (1969) (Bodine VII). The primary objection to the Commission plan was that recent United States Supreme Court cases, such as Kirkpatrick v. Preisler, 394 U.S. 526, 89 S. Ct. 1225, 22 L. Ed. 2d 519 (1969), and Wells v. Rockefeller, 394 U.S. 542, 89 S. Ct. 1234, 22 L. Ed. 2d 535 (1969), did not permit any population deviation to occur in order to comply with county or municipal boundaries. Bodine VII, supra, 53 N.J. at 587. This Court noted that Reynolds held that population deviations may occur when dealing with political subdivisions, and that Kirkpatrick and Wells, which dealt with congressional districting and not the apportionment of a state legislature, did not abandon that notion. Id. at 587-88 (citing Reynolds, supra, 377 U.S. at 580, 84 S. Ct. at 1391, 12 L. Ed. 2d at 538) (emphasis added). Significantly, Bodine VII recognized that "[i]t may, therefore, be necessary to depart from the State Constitution's insistence that county and municipal lines be respected." Id. at 588.

Subsequent to the November 1969 elections, the Court heard argument in respect of whether the apportionment plan could have adhered to the county, municipal, and ward lines in the State's two largest cities, Newark and Jersey City. Bodine VII, supra 53 N.J. 589. The Court held that because the Commission's recertified plan made "modest" improvements and given the time constraints, the results were satisfactory for the 1969 elections. Ibid.

This Court decided the final Jackman v. Bodine case in 1970 and examined whether the redistricting plan under the New Jersey Constitution is compatible with federal requirements. 55 N.J. 371, 374 (Bodine VIII), cert. denied, 400 U.S. 849, 91 S. Ct. 39, 27 L. Ed. 2d 87. In examining precedents, the Court concluded that Reynolds, supra, 377 U.S. at 577, 84 S. Ct. at 1390, 12 L. Ed. 2d at ___, accepted districts as constitutional even though those districts may have departed from a strict numerical calculation of the one-person, one-vote principle. Bodine VIII, supra, 55 N.J. at 377-78. Therefore, Bodine VIII addressed departures from mathematical equality among districts and held that tolerances were still permissible under Reynolds because apportionment of a state legislature is different from redistricting for congressional elections. Id. at 378-79. In addressing the problem of gerrymandering and adherence to political subdivisions, the Court stated that "the use of existing county and municipal lines does not foreclose partisan selection of district lines, but it does limit that opportunity and does tend to make the political party responsible for the district plan more readily accountable at the polls." Id. at 379.

Two years after the final Bodine case was decided in 1970, this Court decided another case that addressed reapportionment of the State Legislature based on the one-person, one-vote doctrine. In Scrimminger v. Sherwin, supra, 60 N.J. at 495, the redistricting plan based on the 1970 census was found to be invalid. The issue presented was the constitutionality of dividing counties into two or more districts under N.J. Const. Article IV, Section 2, Paragraph 3. Id. at 486-87. New Jersey's twenty-one counties contained substantial variations in population. Id. at 487. This Court held that the counties under the 1970 Census "cannot constitute separate districts. Nor are they suitable building blocks for the formation of meaningful districts." Ibid. It became clear that New Jersey's constitutional requirement mandating apportionment of the forty Senators among districts without exceeding permissible tolerances from mathematical equality conflicted with the mandate that each district "'shall be composed, wherever practicable, of one single county, and, if not so practicable, of two or more contiguous whole counties.'" Id. at 488 (quoting N.J. Const. art. IV, §2, ¶1). The Court stated that, "[t]hus election by districts necessarily departs from the ideal of equality among voters." Id. at 490. The state constitutional requirement of adherence to county lines when redistricting was found to be unenforceable because when some counties elect one Senator and others elect multiple Senators, there is an inequality. Id. at 495-96. The Court further stated that although "[m]unicipalities are... appropriate building blocks for the creation of districts[,] [t]he boundaries of the larger municipalities will of course have to be breached, and in this regard, the Commission may have to depart from the direction in [Art. IV], §[ 2], ¶ 3, concerning the division of a municipality." Id. at 498.

Scrimminger also addressed the question "whether deviations from population equality among districts should be tolerated." Id. at 490. After examining the Supreme Court cases of Connor v. Williams, 404 U.S. 549, 92 S. Ct. 656, 30 L. Ed. 2d 704 (1972); Whitcomb v. Chavis, 403 U.S. 124, 91 S. Ct. 1858, 29 L. Ed. 2d 363 (1971); and Abate v. Mundt, 403 U.S. 182, 91 S. Ct. 1904, 29 L. Ed. 2d 399 (1971), the Court held that the apportionment plan under consideration was invalid because it violated the permissible population deviation required to satisfy Reynolds. Scrimminger, supra, 60 N.J. at 492-95.

Consequently, the matter was remanded to the Commission to prepare another plan. Id. at 498.

The new plan certified by the Commission formed the basis for challenges in Davenport v. Apportionment Commission, 63 N.J. 433 (1973) (Davenport I). The Court examined a number of recent federal cases and reaffirmed its holdings in Scrimminger. Id. at 446. The Court reserved on the issue whether "the Constitution commands that there shall be placed within whole counties as many of the 40 Senate districts as can be." Id. at 447-48.

The last time this Court addressed an apportionment issue was in Davenport v. Apportionment Commission, 65 N.J. 125 (1974) (Davenport II). Justice Sullivan began his opinion for the Court by stating that Scrimminger "held that Senate districts should be created without regard to the county-line theme of the State Constitution." Id. at 128-29. He stated that the holding was "bottomed on the United States Supreme Court decisions in Whitcomb v. Chavis, Abate v. Mundt, and Connor v. Williams, holding that substantial equality of population among legislative districts was the overriding object of the one-man, one-vote principle." Id. at 129 (citations omitted).

The Court also observed that the language of the last sentence in Article IV, Section 2, Paragraph 3 contemplates that when "dividing a multi-member Senate district into Assembly districts, the requirement of population equality may compel some division of larger counties and municipalities." Davenport, supra, 65 N.J. at 132. Davenport II also states that based on the 1970 census, Scrimminger declared our "State constitutional mandate with respect to using counties" to determine the districting structure violated "the Federal Constitution under the one-man, one-vote principle." Id. at 132 (footnote omitted). Davenport II reaffirmed that principle and stated that "the county concept ceased to have any viability in the creation of Senate districts." Id. at 133. The Davenport II Court reemphasized "that population equality is distinctly paramount to [compactness] and that where districts are created on the basis of existing political subdivisions, compactness becomes a much reduced factor." Id. at 133-34 (citing Bodine V, supra, 49 N.J. at 419).

Finally, Davenport II acknowledged that the role of the judiciary in reviewing a redistricting plan is limited in that "[t]he judiciary is not justified in striking down a plan, otherwise valid, because a 'better' one, in its opinion, could be drawn." Id. at 135 (citing Gaffney v. Cummings, 412 U.S. 735, 753, 93 S. Ct. 2321, 2331, 37 L. Ed. 2d 298, 312 (1973)). The Court also concluded that Senate districts do not have to be placed in whole counties under any constitutional mandate. Id. at 132-33. "[W]e think it clear that attempting to preserve some semblance of county voting strength would create a plethora of constitutional problems." Id. at 133.

All of our state laws regarding apportionment for election to our State Legislature are subject to federal laws. Based on the Supremacy Clause, U.S. Const. art. VI, cl. 2, Article IV, Section 2, Paragraph 3 of the New Jersey Constitution dealing with legislative apportionment and redistricting, may not violate the federal Voting Rights Act, 42 U.S.C.A. § 1973, (VRA), that became effective August 6, 1965. Section 2 of the VRA provides:

§1973. Denial or abridgement of right to vote on account of race or color through voting qualifications or prerequisites; establishment of violation

(a) No voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgment of the right of any citizen of the United States to vote on account of race or color, or in contravention of the guarantees set forth in section 1973b(f)(2) of this title, as provided in subsection (b) of this section.

(b) A violation of subsection (a) of this section is established if, based on the totality of circumstances, it is shown that the political processes leading to nomination or election in the State or political subdivision are not equally open to participation by members of a class of citizens protected by subsection (a) of this section in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice. The extent to which members of a protected class have been elected to office in the State or political subdivision is one circumstance which may be considered: Provided, That nothing in this section establishes a right to have members of a protected class elected in numbers equal to their proportion in the population.

[42 U.S.C.A. § 1973.]

We therefore reaffirm this Court's pronouncements in Bodine VII, Scrimminger, and Davenport II that the literal language in our State Constitution with respect to political boundaries for counties and the two largest municipalities has to be breached based on the Supremacy Clause in order to comply with the federal law. That has been the position of this Court since Bodine VII was decided in 1969, only three years after the 1966 constitutional amendments at issue here, and that position was reaffirmed in 1970 in Scrimminger. Consequently, the Law

Division correctly concluded that the New Jersey Constitution's municipal boundary requirement, as interpreted by this Court for more than a quarter of a century, is not enforceable against Newark and Jersey City.

B.

We acknowledge that in Bodine VII, Scrimminger, and Davenport II the Court did not directly address the enforceability of the two-district limitation of our State Constitution. This is the first time since 1966 that that issue has been raised. We have concluded that the two-district limitation is unenforceable not only because of the principles we articulated in those opinions. There is yet another significant dimension of the Supremacy Clause compelling our conclusion that the Commission was justified in dividing Newark and Jersey City into more than two districts each despite the language of the New Jersey Constitution. The source of federal preemption lies not only in the federal constitutional mandate of one-person one-vote, but also in the VRA, which is designed to protect and advance the opportunity of minorities for full participation in the electoral process and their opportunity to elect representatives of their choosing. That principle has been made clearer recently by Justice O'Connor in Georgia v. Ashcroft, 539 U.S. ___, ___ S. Ct. ___, ___ L. Ed. 2d ___ (2003) (No. 02-182, 2003 WL 21467204, at *13 (U.S. June. 26, 2003)) in dealing with Section 5 of the VRA:

The ability of minority voters to elect a candidate of their choice is important but often complex in practice to determine. In order to maximize the electoral success of a minority group, a State may choose to create a certain number of "safe" districts, in which it is highly likely that minority voters will be able to elect the candidate of their choice. [See Thornburg v. Gingles, 478 U.S. 30, 48-49, 87-89, 106 S. Ct. 2752, 2765, 2785, 92 L. Ed. 2d 25, __, __ (1986) (O'Connor, J., concurring in judgment).]

Alternatively, a State may choose to create a greater number of districts in which it is likely -- although perhaps not quite as likely as under the benchmark plan -- that minority voters will be able to elect candidates of their choice. [See id. at 88-89, 106 S. Ct. at 2786-87, 92 L. Ed. 2d at ___ (O'Connor, J., concurring in judgment)]; cf. Pildes, Is Voting-Rights Law Now at War with Itself? Social Science and Voting Rights in the 2000s, 80 N.C.L. Rev. 1517 (2002).

Section 5 does not dictate that a State must pick one of these methods of redistricting over another. Either option "will present the minority group with its own array of electoral risks and benefits," and presents "hard choices about what would truly 'maximize' minority electoral success." ...


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