Jackman v. Bodine

• Decision Date: 02 March 1970
• Parties: Christopher JACKMAN et al., Plaintiffs-Appellants, v. John M. BODINE et al., Defendants-Respondents. The ELIZABETH DAILY JOURNAL et al., Plaintiffs-Appellants, v. Robert J. BURKHARDT et al., Defendants-Respondents.
• Court: New Jersey Supreme Court

Page 371

55 N.J. 371

262 A.2d 389

Christopher JACKMAN et al., Plaintiffs-Appellants, v. John M. BODINE et al., Defendants-Respondents.

The ELIZABETH DAILY JOURNAL et al., Plaintiffs-Appellants, v. Robert J. BURKHARDT et al., Defendants-Respondents.

Supreme Court of New Jersey.

Argued Sept. 23, 1969.

Decided March 2, 1970.

Stephen Skillman, Asst. Atty. Gen., for Arthur J. Sills, Atty. gen.

William Miller, Special Counsel designated by the Attorney General, for Apportionment Commission.

Hugo M. Pfaltz, Jr., Summit, for the Speaker of the General Assembly (Bourne & Noll, Summit, on the brief).

Myron H. Gottlieb, Bordentown for appellants Tutek and Soltesz.

James P. Dugan, Bayonne, for appellant Lavin.

Lawrence I. Lerner, Newark, for intervenors Scrimmager and Sharper (Harris David and Nadine Taub, Newark, of counsel).

The opinion of the court was delivered by

WEINTRAUB, C.J.

This is another in a series of opinions relating to apportionment of the State Legislature. Jackman v. Bodine, 43 N.J. 453, 205 A.2d 713 (1964); 43 N.J. 491, 205 A.2d 735 (1964); 49 N.J. 406, 231 A.2d 193 (1967); 50 N.J. 127, 232 A.2d 419 (1967); 53 N.J. 585, 252 A.2d 209 (1969), cert. den. 396 U.S. 822, 90 S.Ct. 63, 24 L.Ed.2d 73 (1969).

In the last Jackman opinion we expressed doubts as to whether the basic plan of apportionment in our State Constitution is compatible with federal constitutional requirements and directed further argument 'to the end that the matter may be settled, if possible, well in advance of' the next election which will be held in 1971. 53 N.J. at 588--589, 252 A.2d at 211. We have since had that further argument.

We should point out that the 1967 and 1969 Jackman opinions just cited involved the validity of apportionments made under the 'Schedule' of the State Constitution which, for the purpose of electing Senators and Assemblymen in 1967 and 'until the 1970 decennial census of the United States shall have been received by the Governor,' created 15 Senate districts consisting of one or more counties and directed the creation of Assembly districts on the basis of those Senate districts. Art. XI, § V, pars. 1--4. We are here concerned with the permanent plan in the State Constitution for subsequent elections. Art. IV, § II, pars. 1--3. Of course no apportionment has been made under the permanent plan for the 1971 election and hence we can consider only the face of the plan and what its terms might permit.

I.

Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964), found that the equal protection clause of the Fourteenth Amendment embodied the principle that every man's vote shall equal every other man's vote. In the words of Reynolds, 377 U.S. at 565--566, 84 S.Ct. at 1383, 12 L.Ed.2d at 529--530:

And the concept of equal protection has been traditionally viewed as requiring the uniform treatment of persons standing in the same relation to the governmental action questioned or challenged. With respect to the allocation of legislative representation, all voters, as citizens of a State, stand in the same relation regardless of where they live. Any suggested criteria for the differentiation of citizens are insufficient to justify any discrimination, as to the weight of their votes, unless relevant to the permissible purposes of legislative apportionment. Since the achieving of fair and effective representation for all citizens is concededly the basic aim of legislative apportionment, we conclude that the Equal Protection Clause guarantees the opportunity for equal participation by all voters in the election of state legislators. Diluting the weight of votes because of place of residence impairs basic constitutional rights under the Fourteenth Amendment just as much as invidious discriminations based upon factors such as race, Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873, 38 A.L.R.2d 1180, or economic status, Griffin v. People of State of Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891, 55 A.L.R.2d 1055, Douglas v. People of State of California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811.

And Reynolds v. Sims concluded that this demand for equality required that both houses of a bicameral legislature be apportioned upon the basis of one vote per man, notwithstanding that the Federal Constitution itself apportions the Senate upon the basis of equal representation for each State without regard to population. In rejecting this 'federal analogy,' the Court explained that the federal plan was 'conceived out of compromise and concession indispensable to the establishment of our federal republic.' 377 U.S. at 574, 84 S.Ct. [262 A.2d 392] at 1388, 12 L.Ed.2d at 534. ¹ This is not to say that a majority of the people, being also of the minority in many things, cannot rationally agree their total security is better served if the will of a house apportioned solely upon population is subject to the 'veto' of a second house apportioned upon another basis. Indeed, Reynolds v. Sims did not denounce such a political plan as 'irrational.' Rather the Court held the equal protection clause struck it down, 377 U.S. at 575, 84 S.Ct. at 1389, 12 L.Ed.2d at 535:

This does not necessarily mean that such a plan is irrational or involves something other than a 'republican form of government.' We conclude simply that such a plan is inpermissible for the States under the Equal Protection Clause, since perforce resulting, in virtually every case, in submergence of the equal-population principle in at least one house of a state legislature.

In short, the Fourteenth Amendment was found to have silently superseded the provision of Art. IV, § 4, of the United States Constitution that 'The United States shall guarantee to every State in this Union a Republican Form of Government.'

In thus rejecting the 'federal analogy,' Reynolds v. Sims held the equal protection clause affirmatively assured the majority that its will may not be 'frustrated,' saying, 377 U.S. at 576, 84 S.Ct. at 1389, 12 L.Ed.2d at 535--536:

If such a scheme were permissible, an individual citizen's ability to exercise an effective voice in the only instrument of state government directly representative of the people might be almost as effectively thwarted as if neither house were apportioned on a population basis. Deadlock between the two bodies might result in compromise and concession on some issues. But in all too many cases the more probable result would be frustration of the majority will through minority veto in the house not apportioned on a population basis stemming directly from the failure to accord adequate overall legislative representation to all of the State's citizens on a nondiscriminatory basis.

Thus, oddly in a way, the Fourteenth Amendment, which was intended to restrain the will of the majority, was found to insulate the majority will from the restraint of a State Constitution. We need not speculate upon the conceivable reach of the proposition. We refer to it only to highlight the emphasis in Reynolds v. Sims upon the broad right of a majority, on a one-man one-vote basis, to have its way.

But it would seem that this concept of majority will could be realized only if all candidates ran at large within the political area directly involved, here, the State. This is so because the election of state legislators by districts necessarily means that the value of a man's vote depends upon the voting complexion of the district in which he lives rather than the voting complexion of the whole electorate. As Mr. Justice Stewart pointed out in WMCA, Inc. v. Lomenzo, 377 U.S. 633, 750, 84 S.Ct. 1418, 12 L.Ed.2d 568, 585 (1964), n. 12, districting conceivably permits a majority in the legislature to be elected by 50% of the voters in districts which have 50% of the population, so that a little over 25% Of the total voters may obtain control. Thus a man's vote may indeed be negated 'because of place of residence.'

Nonetheless, in an election at large the prevailing party may take all. Besides, if many are to be chosen, the voter may not know all the candidates. Further there are diverse interests which are better represented by candidates elected locally. Doubtless for such reasons, Reynolds v. Sims recognized the constitutionality of districting despite its inherent contradiction of the principle that no man's vote may be weighted or diluted by reason of the place where he lives.

It is against this backdrop that the subject of methematical precision in districting should be considered. We should start with the premise that the very decision to accept districting necessarily departed from the ideal of one-man one-vote, and did so to the substantial extent just mentioned. The question, then, is whether it is not tolerable to accept some further, and perhaps countervailing, imbalance in the drawing of district lines if to do so will tend to advance the purpose of districting.

II.

Reynolds v. Sims said there may be departures from mathematical equality in drawing district lines in order to maintain the integrity of political subdivisions because (1) adherence to such political lines may deter gerrymandering ² and (2) local governmental entities are frequently charged with various responsibilities incident to the operation of state government, and hence it is appropriate to provide a voice for that political community. ³ After we held in Jackman, Supra, 43 N.J. 453, 205 A.2d 713, that the Senate was malapportioned under Reynolds v. Sims, the State Constitution was amended. The plan thereby adopted calls for adherence to county and municipal lines in the formation of districts. Art. IV, § II, pars. 1--3. ⁴

In Jackman, Supra, 53 N.J. 585, 252 A.2d 209, we concluded that Reynolds v. Sims was not undercut in this respect by 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). Those cases did raise doubt as to...