In the Matter of Establishment of Congressional Districts by the New Jersey Redistricting Commission (086587) ( 2022 )

SUPREME COURT OF NEW JERSEY
R-3 September Term 2021
086587
In the Matter of Establishment
of Congressional Districts by
the New Jersey Redistricting
Commission,
Douglas Steinhardt, in his official
capacity as Delegation Chair and Member of
the New Jersey Redistricting Commission,
Michele Albano, in her official capacity
as Member of the New Jersey Redistricting
Commission, Jeanne Ashmore, in her
official capacity as Member of the New Jersey
Redistricting Commission, Mark
Duffy, in his official capacity as Member of
the New Jersey Redistricting Commission,
Mark LoGrippo, in his official capacity
as Member of the New Jersey Redistricting
Commission, and Lynda Pagliughi, in
her official capacity as Member of the New
Jersey Redistricting Commission,
Plaintiffs,
v.
New Jersey Redistricting
Commission, John E. Wallace, Jr., in
his official capacity as Chair and Member of
the New Jersey Redistricting Commission,
Janice Fuller, in her official capacity as
Delegation Chairwoman and Member of the
New Jersey Redistricting Commission, Iris
Delgado, in her official capacity as
Member of the New Jersey Redistricting
Commission, Vin Gopal, in his official
capacity as Member of the New Jersey
Redistricting Commission, Stephanie
Lagos, in her official capacity as Member
of the New Jersey Redistricting Commission,
Jeff Nash, in his official capacity as
Member of the New Jersey Redistricting
Commission, Dana Redd, in her official
capacity as Member of the New Jersey
Redistricting Commission, and Tahesha
Way, in her official capacity as New Jersey
Secretary of State,
Defendants.
1. This matter involves a legal challenge to the congressional
redistricting map selected by the New Jersey Congressional Redistricting
Commission (Commission).
Selection of Commission members and redistricting process
2. The State’s political leaders appoint the members of the Commission.
Under the State Constitution, the following individuals each appoint two
members: the President of the Senate and Speaker of the Assembly; the
minority leaders of the Senate and Assembly; and the chairs of the State
committees of the political parties whose candidates received the largest or
next largest number of votes in the most recent election for Governor. N.J.
Const. art. II, § 2, ¶ 1(b). As a result, the Commission is initially comprised of
six individuals affiliated with the Democratic Party and six who are affiliated
with the Republican Party.
3. The Constitution also provides for an independent thirteenth member.
Id. ¶ 1(c). Because the original twelve members were unable to agree on a
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proposed tiebreaker by a majority vote, each delegation submitted one name to
the Court. From those names, the Court had to select the thirteenth member, in
accordance with the Constitution. Ibid.
4. The Constitution sets forth two qualifications for the independent
member: the individual must have been a New Jersey resident for the past five
years and, during that period, “shall not . . . have held public or party office in
this State.” Ibid. The Constitution also provides a standard for the selection
of the independent member. It calls upon the Court to select, by a majority
vote, the person “more qualified by education and occupational experience, by
prior public service in government or otherwise, and by demonstrated ability to
represent the best interest of the people of this State.” Ibid. From the two
names presented, the Court selected the Honorable John E. Wallace, Jr. (ret.),
to serve as the independent member. Neither party objected to his selection.
The independent member serves as Chair of the Commission. Id. ¶ 2.
5. The Commission must hold at least three public hearings. Id. ¶ 4. In
this case, it held ten hearings, virtually and in-person, at which it heard
testimony from the public. The Commission also received written submissions
and draft maps from the public.
6. The process that follows is intensely political, not legal, which
reflects the makeup of the Commission and the nature of its work. The
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Commission is essentially a political body, comprised mostly of partisan
appointees, that fixes boundaries for election districts. See Gaffney v.
Cummings, 412 U.S. 735, 753 (1973) (“Politics and political considerations
are inseparable from districting and apportionment.”).
7. Historically, after meeting in private with the respective partisan
delegations to discuss their proposals, the independent member serves as the
tiebreaker and selects one party’s preferred map. The outcome commonly
garners praise from one party and criticism from the other. This redistricting
cycle was no different.
8. On December 22, 2021, a majority of the Commission’s members
that included the Chair voted in favor of the map the Democratic delegation
presented. Plaintiffs, the Republican delegation to the Commission, filed an
amended complaint on January 5, 2022 to challenge that map. Plaintiffs filed
their complaint directly with this Court, pursuant to Article II, Section 2,
Paragraph 7 of the Constitution.
Plaintiffs’ challenge
9. Plaintiffs ask the Court to vacate the Commission’s decision and
remand the matter to the Commission for further proceedings, with the Chair,
Justice Wallace, recused. Defendants, the Democratic delegation to the
Commission, filed a motion to dismiss the amended complaint. Among other
4
arguments, defendants assert that the amended complaint fails to state a claim
upon which relief can be granted.
10. Plaintiffs’ arguments rest to a large extent on the rationale offered
by the Chair to explain his vote in support of the Democratic delegation’s map.
The Chair provided reasons for his vote at the Commission’s final meeting on
December 22, 2021. He also amplified his reasoning in writing, on January
11, 2022, in response to a request from the Court.
11. This Court has no role in the outcome of the redistricting process
unless the map is “unlawful.” N.J. Const. art. II, § 2, ¶¶ 7, 9. If it is, the
Commission must reassemble and adopt another redistricting plan. Id. ¶ 9.
Legal standard
12. In 1974, before the current constitutional process was adopted, the
Court noted that reapportionment plans “must be accorded a presumption of
legality with judicial intervention warranted only if some positive showing of
invidious discrimination or other constitutional deficiency is made. The
judiciary is not justified in striking down a plan, otherwise valid, because a
‘better’ one, in its opinion, could be drawn.” Davenport v. Apportionment
Comm’n, 65 N.J. 125, 135 (1974) (citing Gaffney).
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13. That stringent standard still applies. It is not the Court’s task to
decide whether one map is fairer or better than another.1 We review
redistricting plans only to determine if the map selected is “unlawful.” N.J.
Const. art. II, § 2, ¶ 9. So long as the final map is constitutional, the Court
cannot grant any relief.
14. Plaintiffs claim the actions of the Chair were “arbitrary, capricious,
and unreasonable,” presented violations of “federal and state constitutional
equal protection and due process protections,” and posed a “common law
conflict of interest.” Am. Compl. ¶¶ 7, 8, 101. The complaint also asserts
there were “significant differences between the maps” and sets forth ways in
which the Republican delegation’s map better met the standards the Chair had
applied. Id. ¶¶ 49-56. Plaintiffs’ complaint, however, does not assert that the
map the Commission adopted -- which the Democratic delegation and the
Chair voted for -- was itself “unlawful.”
1
Only if neither map receives seven votes from the members of the
Commission does the Supreme Court choose between two competing maps.
N.J. Const. art. II, § 2, ¶ 3. In that case, the Court must select the map that
“conforms most closely to the requirements of the Constitution and laws of the
United States.” Ibid.
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Threshold arguments
15. Defendants contend that plaintiffs -- the Republican members of the
Commission who brought suit in their official capacity -- lack standing
because they have no “personal stake” and have not alleged a “personal
injury.” Instead, defendants contend plaintiffs have only an institutional
interest that does not afford them standing any more than it would the minority
side of a legislative body that lost a vote on an ordinance or bill.
16. Our jurisprudence takes a more liberal approach to standing than
federal law. See In re Camden County, 170 N.J. 439, 448 (2002); see also Jen
Elec., Inc. v. County of Essex, 197 N.J. 627, 645 (2009). The State
Constitution does not limit “our judicial power to actual cases and
controversies.” Camden County, 170 N.J. at 448 (quoting Crescent Park
Tenants Ass’n v. Realty Equities Corp. of N.Y., 58 N.J. 98, 107-08 (1971)).
At the same time, courts do not render advisory opinions or “entertain . . .
plaintiffs who are ‘mere intermeddlers,’ or are merely interlopers or strangers
to the dispute.” Id. at 449 (omission in original) (quoting Crescent Park, 58
N.J. at 107).
17. To possess standing in state court, a party must have “a sufficient
stake in the outcome of the litigation” and “real adverseness,” and there must
be “a substantial likelihood that the party will suffer harm in the event of an
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unfavorable decision.” Camden County, 170 N.J. at 449; Jen Elec., Inc., 197
N.J. at 645. We also give weight to the public’s interest in the resolution of a
matter and favor a just ruling on the merits over “procedural frustrations.” 2
Crescent Park, 58 N.J. at 107-08; see also Pressler & Verniero, Current N.J.
Court Rules, cmt. 2.1 on R. 4:26-1 (2022).
18. Plaintiffs have a strong stake in the outcome of the redistricting
process and are plainly adverse to the map adopted. Their assertion of
personal harm as members of the delegation is less strong, but the overriding
public interest in this case is compelling. Resolving the map for congressional
districts for the next decade is of the utmost importance. Doing so
expeditiously, in time for candidates and election officials to plan for the
upcoming primary and general elections, is also significant to the public. We
therefore consider the merits.
2
Here, for example, the complaint could be amended, or possibly refiled, with
plaintiffs or others listed as residents of New Jersey and not just in an official
capacity. See R. 4:9-1 (noting that pleadings may be amended as a matter of
right and “by leave of court which shall be freely given in the interest of
justice”); cf. Brady v. N.J. Redistricting Comm’n, 131 N.J. 594, 605 (1992)
(addressing congressional redistricting challenges brought by residents and
taxpayers). If the complaint were amended in that way, there would be no
prejudice to defendants. See Notte v. Merchs. Mut. Ins. Co., 185 N.J. 490, 501
(2006).
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19. Defendants raise an additional threshold argument that the
complaint must be dismissed because it presents a nonjusticiable political
question. That issue “is primarily a function of the separation of powers.”
Gilbert v. Gladden, 87 N.J. 275, 281 (1981) (quoting Baker v. Carr, 369 U.S.
186, 210 (1962)). To determine whether an issue poses a nonjusticiable
political question, courts consider, among other factors, if there is “a textually
demonstrable constitutional commitment of the issue to a coordinate political
department.” Id. at 282 (quoting Baker, 369 U.S. at 217). Here, the
Constitution grants the Supreme Court “jurisdiction over any judicial
proceeding challenging . . . any action, including the establishment of
Congressional districts, by the commission.” N.J. Const. art. II, § 2, ¶ 7. The
Court’s narrow role in that regard -- limited to challenges over whether a map
is unlawful -- avoids political questions that could be raised by a review of the
Commission’s decisions.
20. Plaintiffs raise a threshold argument as well and contend that the
Chair’s amplified statement of reasons cannot be considered because it violates
the State Constitution’s public meeting requirement and analogous principles
in the Open Public Meetings Act (OPMA), N.J.S.A. 10:4-6 to -21. To repeat,
on January 4, 2022, the Court requested an amplified statement of reasons to
assist in its review of this matter. By analogy to Rule 2:5-1(b), which allows a
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trial judge or agency head to submit “an amplification of a prior statement ,
opinion or memorandum” when an appeal is taken, the Court asked the Chair
to amplify the grounds for his oral decision on December 22, 2021. The Chair
presented a written statement to the Court and the parties on January 11, 2022,
and it was posted on the Judiciary’s website the same day. Response to Order
of Jan. 4, 2022, https://www.njcourts.gov/courts/assets/supreme/
ResponseCongressional1-21.pdf?c=avq.
21. In light of the challenges plaintiffs assert and the limited nature of
our review of the Commission’s work, we do not rely on the Chair’s amplified
statement. Plaintiffs’ argument is therefore moot. 3
3
We note that the Constitution’s meeting requirement does not apply to the
Chair’s supplemental statement. The Constitution directs that the Commission
“certify the establishment of [congressional] districts pursuant to a majority
vote of the full authorized membership of the commission convened in open
public meeting, of which meeting there shall be at least 24 hours’ public
notice.” N.J. Const. art. II, § 2, ¶ 3 (emphasis added). As noted earlier, the
Constitution also requires the Commission to “hold at least three public
hearings in different parts of the State.” Id. ¶ 4. Except for those two types of
proceedings -- the requisite public hearings and the meeting to certify the
establishment of districts -- meetings of the Commission “may be closed to the
public.” Id. ¶ 5.
The meeting to certify congressional districts took place on December
22, 2021, when the full Commission voted on and adopted a map, at an open
public meeting. The Chair’s supplemental statement did not certify a
congressional map, which no single member could have accomplished.
Furthermore, OPMA does not apply to the work of the Commission.
Nor does the statute apply to the State’s legislative redistricting process.
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Statements and findings by the Chair
22. Here, the Chair concluded that both maps were constitutional. On
December 22, 2021, he first orally outlined certain factors that guided his
determination: that “congressional districts . . . shall be geographically
contiguous” and account for each district’s total population; that “[m]apmakers
shall comply with the Voting Rights Act” and other relevant authority, and
“should include sufficient numbers of minority/majority districts”; that maps
“shall not split political subdivision boundaries and communities of interest
unless necessary” to comply with the above standards; that “[c]ompetitive
districts are favored”; that “[n]o district may be formed solely to favor or
disfavor any political party or the election of any person” (which the Chair
described as “partisan fairness”); that “districts may include the cores of
existing districts” “[to] assist voters in assessing incumbents and minimizing
voter confusion”; and that “[a]ll districts shall be as compact and regularly
shaped as possible unless deviation is required to comply with any of the
N.J.S.A. 10:4-8(a). The public meeting requirements for the Commission are
spelled out in the Constitution. Under the Commission’s by-laws, notice for
required public meetings shall be given in accordance with the Constitution
and OPMA, “notwithstanding the OPMA’s inapplicability to the Commission.”
See Redistricting Commission By-Laws art. IV, ¶ 6. The Chair’s submission
of a supplemental statement was not a required public hearing or a meeting to
certify the establishment of districts under the Constitution.
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above standards.” Plaintiffs’ complaint does not challenge the map for any of
those reasons.
23. The Chair then found that both maps satisfied the above standards
with one exception: “The only area where one map pulled ahead of the other
is in partisan fairness.” As the Chair explained,
Both maps were evaluated by my team using
various statewide tests for partisan fairness. Without
getting into the details of the tests, I simply state that
the results showed that the partisan fairness would
favor the Democratic[] map. However, because neither
delegation used these tests, I have decided not to give
any weight to them in making my decision.
The Chair next added,
In summary, both delegations aptly applied our
standards to their map. In the end, I decided to vote for
the Democratic map, simply because in the last
redistricting map it was drawn by the Republicans.
Thus, I conclude that fairness dictates that the
Democrats have the opportunity to have their map used
for this next redistricting cycle. Thank you. That
concludes my comments.
We do not rely on the above statement to resolve plaintiff’s claims, which do
not challenge the constitutionality of the map.
24. In an amplified statement of reasons on January 11, 2022, the Chair
reiterated his belief that both maps were constitutional and met the standards
he had previously outlined. Although we do not rely on the amplified
12
statement, we include a part of it for completeness. The Chair stated “that the
Democrats’ map better satisfied the standard for Partisan Fairness.” In his
words,
Many tests for Partisan Fairness are accepted by
the social science community. They fall into two broad
categories, a category based on partisan symmetry and
a category based on geography.
Tests of partisan symmetry have their roots in a
simple and intuitive concept of fairness: what would
happen if the tables were turned? Social scientists have
overwhelmingly endorsed such a concept. For
example, in the ideal case, given the same statewide
electoral totals, each side should win the same number
of seats. Using such mathematical tests, my team
determined that the Democratic plan shows superior
partisan symmetry to the Republican plan.
The second category of test is to use the natural
geography of the state. Modern technology allows
hundreds of thousands of alternative plans to be drawn
automatically, providing a way to determine what a
“natural” outcome would be if plans were drawn in a
party-blind manner generally following the required
redistricting standards. Such an approach is called the
ensemble comparison method, and is used by state
courts to evaluate partisan gerrymandering claims. My
team found that the Democratic plan is closer to the
average of the ensemble than the Republican plan, and
therefore is more “party-blind.”
25. In addition, the Chair explained that had his team informed the
delegations that it would use the above tests to evaluate their maps, “I would
have stated that Standard 5 for Partisan Fairness tipped the scales in favor of
13
the Democrats’ map.” The Chair added that, “[u]pon reflection, I realize I
mistakenly failed to consider . . . Partisan Fairness of the maps” and “should
have stated that the Democrats’ map better satisfied the standard. . . . I do that
at this time.”
Substantive challenges
26. Reasonable people may differ with a tiebreaker’s evaluation of, and
support for, a particular plan, but that decision is not subject to review by the
Court unless the plan is unlawful or reflects invidious discrimination. N.J.
Const. art. II, § 2, ¶ 9; Davenport, 65 N.J. at 135. No count in the complaint,
however, asserts that the final map itself is unlawful or that it is the result of
invidious discrimination.
27. Plaintiffs’ arguments instead center on the tiebreaker’s reasons in
support of his vote. In their complaint, plaintiffs assert the Commission’s
“adoption of the Democratic map . . . must be set aside . . . because its
adoption was based upon an arbitrary, capricious, and unreasonable vote and
reasoning by Chair Wallace.” Am. Compl. ¶ 77. Plaintiffs’ brief similarly
“challenges Chair Wallace’s arbitrary, capricious, and unreasonable decision
to select the Democratic map out of ‘fairness’ because the Republicans ‘won’
in the last redistricting cycle.” According to plaintiffs, the adoption of a map
based on the Chair’s manner of decision and his vote violated their federal and
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state procedural due process rights and constitutional due process protections.
We briefly address each claim in turn, starting with procedural due process.
28. The due process clause of the Fourteenth Amendment states that no
“State [shall] deprive any person of life, liberty, or property, without due
process of law.” U.S. Const. amend. XIV, §1. Although the New Jersey
Constitution does not articulate a “right to due process,” Article I, Paragraph 1
has been interpreted to “protect[] ‘values like those encompassed by the
principle[] of due process.’” Doe v. Poritz, 142 N.J. 1, 99 (1995) (second
alteration in original) (quoting Greenberg v. Kimmelman, 99 N.J. 552, 568
(1985)). “To examine a procedural due process claim, courts ‘first assess
whether a liberty or property interest has been interfered with by the State, and
second, whether the procedures attendant upon that deprivation are
constitutionally sufficient.’” State v. Robinson, 229 N.J. 44, 75 (2017)
(quoting Doe, 142 N.J. at 99).
29. Plaintiffs’ argument appears to rest on the use of the amplified
statement. They claim they lacked notice and an opportunity to be heard, and
that they were deprived of an opportunity to respond to the Chair’s “ultimate
reasons.” Because we do not rely on either statement, that argument is moot.
To the extent plaintiffs assert a broader claim, it does not allege how the plan
is unlawful. See N.J. Const. art. II, § 2, ¶ 9; Davenport, 65 N.J. at 135. For
15
that reason alone, their argument fails. We note as well that, although
plaintiffs cite generally to the fundamental right to vote, they do not offer
persuasive authority that the State interfered with a liberty or property interest
through the manner in which the Chair explained his decision.
30. Plaintiffs advance a related due process argument based on the
doctrine of fundamental fairness. The doctrine protects against “unjust and
arbitrary governmental action,” in particular, government procedures that
operate arbitrarily. State v. Njango, 247 N.J. 533, 548 (2021) (quoting Doe,
142 N.J. at 108). Courts apply the doctrine sparingly -- “in those rare cases
where not to do so will subject the defendant to oppression, harassment, or
egregious deprivation.” Doe, 142 N.J. at 108 (quoting State v. Yoskowitz, 116
N.J. 679, 712 (1989) (Garibaldi, J., concurring and dissenting)).
31. That argument, as well, does not purport to establish that the map is
unlawful. Plaintiffs’ claim therefore cannot prevail. See N.J. Const. art. II,
§ 2, ¶ 9; Davenport, 65 N.J. at 135. In addition, the Constitution does not
afford either partisan delegation a right to dispute or counter the independent
member’s decision. The vote marks the end of a political process. It follows
days of private meetings and discussions in a hotel, with one side and then the
other meeting with the Chair. Those discussions and their resolution are not
16
subject to procedural rules or judicial review in precisely the manner that an
agency decision or a trial judge’s ruling would be.
32. Plaintiffs also assert that the Court should apply the standard for
agency review to redistricting decisions, and that the Chair’s conclusion was
arbitrary, capricious, and unreasonable.
(a) The traditional standard of review for actions of a public
agency is whether the action was “arbitrary, capricious, or unreasonable.”
Allstars Auto Grp., Inc. v. N.J. Motor Vehicle Comm’n, 234 N.J. 150, 157
(2018). Under that standard, reviewing courts consider
(1) whether the agency’s action violates express or
implied legislative policies, that is, did the agency
follow the law;
(2) whether the record contains substantial evidence to
support the findings on which the agency based its
action; and
(3) whether in applying the legislative policies to the
facts, the agency clearly erred in reaching a conclusion
that could not reasonably have been made on a showing
of the relevant factors.
[Ibid. (quoting In re Stallworth, 208 N.J. 182, 194
(2011)); see also In re Request to Modify Prison
Sentences, 242 N.J. 357, 390 (2020).]
Courts also assess whether the agency’s action offends the Federal or State
Constitutions. In re Eastwick Coll. LPN-to-RN Bridge Program, 225 N.J. 533,
541 (2016).
17
(b) This challenge likewise fails because it, too, does not allege
how the redistricting plan is unlawful. See N.J. Const. art. II, § 2, ¶ 9;
Davenport, 65 N.J. at 135. The argument is therefore beyond the limited scope
of our review. We also note that the standard of review for an agency’s action
is not an ideal fit. There are no express or implied constitutional or legislative
policies to guide the Commission’s work. There is also no traditional record
to measure any findings against because the key work of the Commission takes
place behind closed doors with no record of its discussions.
33. In addition, plaintiffs submit the adoption of a map based upon the
Chair’s reasons violated their substantive due process protections. Relying on
Winters v. Illinois State Board of Elections, 197 F. Supp. 2d 1110 (N.D. Ill.
2001), plaintiffs argue that the Chair’s vote and the adoption of the map did
not satisfy rational basis review. 4 Under that standard, a statute, typically,
must bear a “rational relationship to a legitimate government goal.” State in
Interest of C.K., 233 N.J. 44, 73 (2018). The claim thus falls outside the
4
In Winters, the district court assessed Illinois’ practice of having the
Secretary of State select the tiebreaker for congressional redistricting by
randomly drawing one of two names, of people from different political parties,
submitted by the State Supreme Court. 197 F. Supp. 2d at 1112. The district
court upheld the practice because it was rationally related to a legitimate
government interest -- giving the parties an incentive to compromise to avoid
losing a random drawing. Id. at 1114-16.
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limited nature of our review of redistricting decisions. Plaintiffs’ argument
focuses on the Chair’s thought process but does not allege how the map suffers
from invidious discrimination or is otherwise unlawful. See N.J. Const. art. II,
§ 2, ¶ 9; Davenport, 65 N.J. at 135.5
34. Plaintiffs submitted a second amended complaint on February 2,
2022. The newly amended complaint adds the Princeton Gerrymandering
Project (PGP) as a defendant. Second Am. Compl. ¶ 27. According to
plaintiffs, the group advised and provided independent analysis of the parties’
proposed redistricting maps to the Chair during the redistricting process and
breached an alleged promise of confidentiality by providing valuable feedback
to the Democratic delegation. Id. ¶¶ 119-21. At the same time, however,
plaintiffs acknowledge that during four days of discussions at a hotel in Cherry
Hill, “Chair Wallace provided feedback to the Republican delegation (and
presumably to the Democratic delegation as well), and the Republican
delegation made changes to its proposed map based upon the comments from
Chair Wallace.” Id. ¶ 39. Plaintiffs also allege that PGP is supported by
private donors who have contributed to Democratic officials and causes. Id. ¶¶
5
Plaintiffs have not submitted argument in support of strict scrutiny review or
their equal protection claim, so we do not consider either issue further.
19
115-18. Without citing a particular legal theory, plaintiffs assert judicial
intervention is required to respond to a “tainted” process.
35. Like the allegations discussed above, plaintiffs’ additional claim
does not assert that the redistricting plan is unlawful or is the result of
invidious discrimination. See N.J. Const. art. II, § 2, ¶ 9; Davenport, 65 N.J. at
135. The new argument, as well, falls outside the Court’s limited scope of
review in redistricting matters and therefore cannot prevail.
Common law conflict of interest claim
36. For the first time, plaintiffs now contend the Chair had a conflict of
interest under the common law and should have recused himself because his
wife made a political contribution to a member of Congress from New Jersey
in 2021. Am. Compl. ¶ 102. That information is readily available to the
public; it appears on the Federal Election Commission’s (FEC’s) public
database of contributions to candidates and committees in federal elections.
Fed. Election Comm’n, Individual Contributions, https://www.fec.gov/data/
receipts/individual-contributions/?two_year_transaction_period=
2022&min_date=01%2F01%2F2021&max_date=12%2F31%2F2022. Because
plaintiffs either knew or reasonably should have known of the contribution,
they could have raised the argument earlier. Instead, they did not object to the
Chair’s participation until after he selected the other side’s map. On those
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facts, a strong argument can be made that plaintiffs waived their conflict
claim.
37. As noted earlier, the Constitution sets forth specific qualifications
for the independent member: the individual must have been a New Jersey
resident for the last five years and cannot “have held public or party office” in
New Jersey during that time. N.J. Const. art. II, § 2, ¶ 1(c). Because the
Constitution specifies requirements for the tiebreaker, we do not look to the
common law, as plaintiffs request, to insert additional qualifications. Cf.
DCPP v. J.R.-R., 248 N.J. 353, 373 (2021) (noting the Court has no authority
to import a doctrine from the common law into the Legislature’s statutory
scheme); Coleman v. Martinez, 247 N.J. 319, 365 (2021) (Albin, J., dissenting)
(“The common law persists in any field until occupied by the Legislature.”).
38. The Constitution does not bar the selection of a person who has
contributed to a political campaign or a partisan political group, or whose
spouse has done so, as the independent member. See N.J. Const. art. II, § 2,
¶ 2. We therefore find no disqualifying conflict.
39. Defendants also submitted FEC records about political contributions
that members of both partisan delegations made in the past two years. Nothing
about the current system prevents that either.
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40. The Commission fixes the boundaries for our State’s congressional
districts, which remain in place for a decade. It is vital that the public have
confidence in the Commission’s important work. Questions of partisanship or
the appearance of partisanship can affect the public’s confidence, yet our
current system is designed to be overseen by twelve partisan members and a
thirteenth member whom the party delegations propose. Two highly respected
individuals were recommended for that role. But there are other ways to
conduct the redistricting process.
41. A number of states, including California, Arizona, Michigan, and
Colorado, have created independent redistricting commissions that include
citizens with no party affiliation, in order to “increase the degree of separation
between map-drawers and partisan politics.” League of Women Voters of
Ohio, ___ N.E.3d ___, ___ (2022) (slip op. 2022-Ohio-65, ¶ 143) (O’Connor,
J., concurring) (citing Emily Rong Zhang, Bolstering Faith with Facts:
Supporting Independent Redistricting Commissions with Redistricting
Algorithms, 109 Calif. L. Rev. 987, 990, 1000 (2021)). Chief Justice
O’Connor’s concurring opinion in League of Women Voters succinctly
outlines those models. Id. at ___ (slip op. ¶¶ 144-46). In general, partisan
actors and officials have a more limited role in selecting members of
independent redistricting commissions. See Bruce E. Cain, Redistricting
22
Commissions: A Better Political Buffer?, 121 Yale L.J. 1808, 1818-19 (2012).
Some models also require that individuals who are unaffiliated with a political
party be part of redistricting commissions. Cal. Const. art. XXI, § 2, ¶ (c)(2)
(four out of fourteen members); Colo. Const. art. V, § 44.1, ¶¶ 8-10 (four out
of twelve members); Mich. Const. art. IV, § 6, ¶ 2 (five out of thirteen
members).
42. The current redistricting process in New Jersey stems from an
amendment to the Constitution in 1995, N.J. Const. art. II, § 2, which followed
a statute enacted in 1992, L. 1991, c. 510 (expired 2001). To change the
system and distance it from partisan politics would require a proposed
constitutional amendment and voter approval. See N.J. Const. art. IX, ¶¶ 1, 4.
Those decisions can begin with grassroots efforts, see Zhang, 109 Calif. L.
Rev. at 1001, or the political branches of government. In the end, the choice is
left to the people of our State.
Conclusion
43. Because plaintiffs’ allegations are insufficient to support a claim
upon which relief can be granted, see R. 4:6-2(e), defendants’ motion to
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dismiss the complaint with prejudice is granted.
For the Court
Stuart Rabner
Chief Justice
February 3, 2022
CHIEF JUSTICE RABNER; JUSTICES ALBIN, PATTERSON, and
SOLOMON; and JUDGE FUENTES (temporarily assigned), join in the
Order. JUSTICES FERNANDEZ-VINA and PIERRE-LOUIS did not
participate.
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