New Jersey enjoys a long and checkered history of Democratic partisan gerrymanders. As I recollect, on his last day in office, Governor Byrne signed a viciously partisan Congressional gerrymander, attempting to draw districts specifically to elect two Democrats: Adam Levin and Joe Merlino. (They failed) The districts were such naked partisan creations that the SCOTUS felt compelled to strike them down. (As I recollect, our House representatives ran in different districts in 1982, 1984, and 1986.)
In 2001, with the complicity of the truly incomprehensible Chief Justice Poritz, the Democrats imposed upon the Commission tiebreaker to create truly nasty legislative districts, making it essentially impossible for the GOP to prevail. They did so by simply ignoring an inconvenient portion of the New Jersey Constitution.
Art. IV, Sec II, ¶ 3, of the New Jersey Constitution provides as follows:
"The Assembly districts shall be composed of contiguous territory, as nearly compact and equal in the number of their inhabitants as possible, and in no event shall each such district contain less than eighty per cent nor more than one hundred twenty per cent of one-fortieth of the total number of inhabitants of the State as reported in the last preceeding decennial census of the United States. Unless necessary to meet the foregoing 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, and no county or municipality shall be divided among a number of Assembly districts larger than one plus the whole number obtained by dividing the number of inhabitants in the county or municipality by one-fortieth of the total number of inhabitants of the State."
In practical terms, that means that only two municipalities in the State can be divided into different legislative districts – Jersey City and Newark – and each of those can be divided into no more than two such districts.
Although nominally bound by the NJ Constitution, our New Jersey Supreme Court rarely permits anything as trivial as the clear and unambiguous language of that document to stand between it and arriving at its preferred policy goals. Hence, in McNeil v. Legislative Reapportionment Commission, 177 N.J. 364 (2003), our august tribunal decided that the Voting Rights Act trumped the above section of our Constitution and, hence, the constitutional prohibition on dividing municipalities into more than two districts must fall by the wayside. Of course, it never occurred to the Justices that this constituted a boon to the Democratic Party; the esteemed jurists would, or course, never permit anything as crass as mere partisanship to cloud their judgment. Perish the thought.
In effect, the Court concluded that the Constitution was unconstitutional because the limitation on dividing municipalities stood between the Democrats and their desire to "unpack" minorities. That is, given that minorities tend to be overwhelming Democrats (for reasons which completely baffle any logical observer), the Democrats wanted them spread out into numerous districts, the idea being that a whole bunch of 60% Democratic districts is better than a few 100% Democratic districts. The Court concluded that spreading out minorities so that they "influence" many districts rather than dominate a few is compelled by the Voting Rights Act and, hence, under the Supremacy Clause of the United States Constitution, a provision of the New Jersey Constitution which contravenes that law must fall.
Problem: there had never been a US Supreme Court decision holding that the Voting Rights Act compelled such a result. As of last week, such a decision issued, 180 degrees opposite to what our NJ Supreme Court predicted the law would be. In brief, the SCOTUS held that only majority-minority districts qualify for VRA protection; "unpacking" might (or might not) be a good idea, but it cannot be used to trump an otherwise applicable state constitutional prohibition against dividing political subdivisions. This completely eviscerates our Supremes’ opinion that the VRA compelled us to ignore our Constitution. And, in the absence of such a compulsion, simple math prevails: one plus one equals two, and our districting scheme violates the unambiguous language of our Constitution.
Not that our Court will (necessarily) admit its error. In the absence of a Federal override, the only possible rationale for ignoring the provisions of the New Jersey Constitution rests upon the simple dislike by the Justices for the outcome at which abiding by the Constitutional language requires. The opinion in that case reads less like a legal exegesis than a partisan temper tantrum. Indeed, the first rule of jurisprudence runs that anytime a opinion leads with Judge Learned Hand’s quote – "there is no surer way to misread any document than to read it literally" – the Court intends to deliberately misread (or blatantly ignore) the clear and unequivocal provisions of the document under consideration.
Let’s start with a few basic principles: the provisions of the Constitution cannot be waived. They bind everyone in government, including – one would think especially – the judiciary. Winks and nods do not amount to constitutional precedent. When confronted with the straightforward language of the Constitution, the first impulse of a judge ought to be to snap a salute, not look around for a loophole or an escape hatch.
Not to be too crass, but it’s also clear that, alas, the Constitution seems to change as the personnel on the Court changes. Would that such were not the case, but the simple fact is that Justice Coleman, who authored the screed, Judge Pressler – temporarily promoted when Chief Justice Poritz recused herself – and Justice Zazzali, are gone. So, too, is one of the dissenters: Justice Verniero. That leaves only one member of the majority: Justice Long. Justices Albin and LaVecchia dissented, and remain on the Court. Both of their dissents noted that in the absence of clear evidence of the necessity, under the VRA, to depart from the NJ Constitution, departure cannot be tolerated. It seems evident, now, that such a case cannot be made consistent with federal law, and, under the logic of their previous dissent, the districts must fall.
Assuming that their opinions haven’t changed, and that Justice Long cannot be persuaded by logic or by the repudiation from the SCOTUS, that leaves the issue in the hands of the four newcomers. Rabner, Wallace, Rivera-Soto, and Hoens.
Because, put simply, our legislative districts are unconstitutional TODAY. They should be reformed TODAY. That means taking such action as is necessary to draw new districts, compliant with the Constitution, IMMEDIATELY.