Daggett v. Kimmelman | Cases | Westlaw

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.¹ 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,² 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.

*1261 On January 5, 1984 the New Jersey Legislature adopted Senate Bill 3564, but that bill was vetoed by Governor Thomas H. Kean, and had insufficient support for reenactment over his veto. Since no legislation was adopted in the time permitted by this court's December 19, 1983 order, we convened on February 7, 1984 and held a hearing on further relief.

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, 462 U.S. at ––––, 103 S.Ct. at 2658 (quoting Kirkpatrick v. Preisler, 394 U.S. 526, 531, 89 S.Ct. 1225, 1229, 22 L.Ed.2d 519 (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, 462 U.S. at ––––, 103 S.Ct. at 2658, 2662. Compare Daggett v. Kimmelman, 535 F.Supp. at 983, 985 (Gibbons, J., dissenting). 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, 462 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, *1262 and inhibiting gerrymandering. With those factors in mind we turn to the several plans which have been proposed.

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.

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, 462 U.S. at ––––, 103 S.Ct. at 2667–78 (Stevens, J., concurring) with id. 462 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 Democratic Congressmen intervenors urge that we must, as a matter of law, adopt Exhibit IF–2(c) as a remedy. Their legal position in this regard is predicated on certain language in White v. Weiser, 412 U.S. 783, 93 S.Ct. 2348, 37 L.Ed.2d 335 (1973), which is said to require that result. In that case the Supreme Court held that a district court should, in choosing among remedial plans, choose the plan which most closely approximates that selected by a state legislature. Id. at 795, 93 S.Ct. at 2354. The policy dispute in White v. Weiser *1263 among the competing plans was over the district court's rejection of a state policy of avoiding contests among incumbents. The Feldman Plan did not implement such a policy; quite the opposite. It was designed to produce contests among certain Republican incumbents. Moreover, White v. Weiser teaches that “the District Court should defer to state policy in fashioning relief only where that policy is consistent with constitutional norms and is not itself vulnerable to legal challenge.” 412 U.S. at 797, 93 S.Ct. at 2355. The State policy embodied in the Feldman Plan was to deviate from the norm of population equality for the patently discernible purpose of partisan advantage. That policy was not merely vulnerable to legal challenge; the challenge succeeded. We owe no deference to an unconstitutional state statute.

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 inference they would have us draw from these analyses is that the districts established by the Feldman Plan were in fact non-partisan.

For several reasons we decline the invitation to endorse as a remedy the basic districts set forth in the Feldman Plan. First, the present effort to justify those districts as non-partisan is a thinly veiled effort to relitigate the liability stage of this lawsuit after an affirmance by the Supreme Court of the holding that the Feldman Plan is unconstitutional. We have grave doubt whether, consistent with the Supreme Court's judgment, this court is free to permit such relitigation. Assuming we were free to consider the evidence of hypothetical results, in each district, of elections other than those for Congress, we would not find that evidence of any real relevance. While it is true that congressional elections are frequently affected by the same issues that influence the outcome of presidential and senatorial contests, the patent reality is that they are strongly influenced by the more direct relationship of a Representative with the voters in his own district. Thus the fact that a district may have voted in favor of a senatorial or presidential candidate of one party is hardly a strong predictor of the outcome of a congressional race. The case of a gubernatorial election, which may turn on statewide rather than national or district issues, is even less relevant.

A final contention advanced in favor of Exhibit IF–2(c) is that in the election held under the Feldman Plan all Republican incumbents save one survived the election. With the benefit of such hindsight we are asked to adhere as closely as possible to the districts established in the 1982 legislation. The Supreme Court, however, had the benefit of the same hindsight when, on June 22, 1983, it decided Karcher v. Daggett. The Court undoubtedly was as aware as we are of the unique set of circumstances surrounding that election, such as Representative Fenwick's race for the Senate, which permitted Congressman Courter to run unopposed in the district to which he moved, and Congressman Rinaldo's decision to run outside his home district, which produced results unexpected by those responsible for enacting the Feldman Plan. That statute's unconstitutionality cannot be disregarded merely because its intended partisan results were not fully realized.

Thus we conclude that Exhibit IF–2(c), embodying the provisions of Senate Bill 3564, is not an appropriate remedy for the unconstitutionality of the Feldman Plan. For the same reasons, we conclude that a modification of that plan, which would shift one census block from the proposed eleventh to the proposed tenth district, thereby reducing the variation from 67 to 42 persons, is also an inappropriate remedy.

The executive branch defendants propose for our consideration two redistricting *1264 plans which were introduced, but not enacted, in the New Jersey Legislature. The first, introduced by Senator Hagedorn as Senate Bill 1111, is reflected in the district map Exhibit D 7. The second, introduced by Assemblyman Zimmer, as Assembly Bill 839, is reflected in the district map Exhibit D 9. The Hagedorn map produces a high population district of 526,115 and a low population district of 526,055, or a maximum variation of 60 persons, and an absolute mean deviation of 11.50 persons. The relative overall range is .01140% and the relative mean deviation is .00218%. The Zimmer map produces a district with a high population of 526,087 and a district with a low population of 526,020, or a maximum variation of 67 persons, and an absolute mean deviation of 10.92 persons. The Zimmer plan's relative overall range is .01273% and its relative mean deviation is .00207%. A comparison of these deviation figures with those that would result from the adoption of Senate Bill 3564 shows that the numerical differences are so slight as to be irrelevant.

Since neither the Hagedorn nor the Zimmer plans were enacted, the executive branch defendants do not suggest that they come clothed with any mantle of state policy. The districts reflected in Exhibits D 7 and D 9 are considerably more compact than those in the Feldman Plan, and thus also more compact than those in Senate Bill 3564. Neither splits municipal boundaries, and neither places incumbent representatives in the same district. If the choice were between Senate Bill 3564 and either the Hagedorn or the Zimmer plan, either of the latter two would in our view embody preferable remedial features. And, as between Hagedorn and Zimmer, the slightly lower absolute mean deviation in the Zimmer plan, 10.92 persons, probably would tip the scale in its favor. The Zimmer plan must, however, be compared with one remaining proposal.

The original plaintiffs in one of these consolidated cases, No. 82–388, were Republican candidates in the 1982 primary congressional elections. All but one of them³ have proposed a redistricting plan. That plan is embodied in Exhibit P–1(a) and (b), and the map depicting the proposed districts is Exhibit P–1(c). The plan shown on Exhibit P–1(c) produces a high population district of 526,087 and a low population district of 526,062, or a maximum variation of only 25 persons, and an absolute mean deviation of 5.9 persons. The relative overall range is .00475% and the relative mean deviation is .00112%. Thus the plan reflected in Exhibit P–1(c) achieves the lowest population deviation of any plan which has been presented. Moreover it goes much further than the Hagedorn or Zimmer plans in achieving compact districts. Like all the plans considered, it avoids placing incumbents in the same district. Unlike any of the others, however, it achieves the extremely low population deviation in part by splitting off certain census tracts from the Essex County municipality of Belleville, and the Hudson County community of Kearny. The plan, in what it proposes as the 10th Congressional District, preserves a congressional district in which a majority of the population is black. No evidence has been offered from which we could find that it is designed to achieve partisan advantage.

The two great advantages of the Exhibit P–1(c) plan, over any of the others, are the achievement of smaller population deviations, and the creation of more compact districts. The only disadvantage which the plan presents is the splitting of two North Jersey municipalities in order to achieve those advantages. We hold that this disadvantage is outweighed by the advantages of compactness and population near uniformity. Thus, among those in evidence, the plan which in our view most nearly fits the appropriate criteria for a *1265 court considering a congressional reapportionment plan as a remedy for an unconstitutional reapportionment statute, is that set forth in Exhibits P–1(a)(b) and (c).

Ordered, adjudged and decreed that the primary elections and elections for members of the House of Representatives shall be conducted, in New Jersey, until the further order of this court, or until the next decennial census, whichever is earlier, from the single Member districts set forth in the Opinion filed herewith.