Gonzalez v. State of New Jersey Apportionment Commission, A-0747-11T4; Appellate Division; opinion by Cuff, P.J.A.D.; decided and approved for publication September 10, 2012. Before Judges Cuff, Lihotz and Waugh. On appeal from the Law Division, Mercer County, L-1173-11. [Sat below: Judge Feinberg.] DDS No. 21-2-7632 [126 pp.]

These back-to-back appeals arise from an order dismissing a complaint filed by numerous individuals and groups challenging the legislative apportionment map approved by the State of New Jersey Apportionment Commission on April 3, 2011 (the approved map). The approved map established New Jersey State Senate and Assembly districts and the apportionment of state senators and members of the General Assembly among those districts.

The New Jersey Constitution established the commission pursuant to Article IV, § 3. Following the 2010 census, the Republican and Democratic Party chairmen each appointed five members to the commission. On or about March 4, 2011, with those 10 commission members at an impasse, the chief justice appointed Alan Rosenthal as the tiebreaking member; Rosenthal was the only person whose name appeared on both parties’ three-person nomination lists. At the commission’s March 10, 2011, public meeting, Rosenthal made a statement setting out the standards he would use to guide the redistricting process, making no mention of the state constitutional provision restricting divisions of counties in Article IV, § 2, ¶ 3.

On April 3, 2011, the commission adopted the map proposed by the Democratic members of the commission, by a vote of 6-5; all of the Democrats plus Rosenthal voted in favor and all of the Republicans voted against the map.

Plaintiffs and intervenor Richard McManus, Esq., filed a complaint asserting that the approved map must be declared invalid because it violates the Fourteenth Amendment of the federal Constitution and Article IV, § 2, ¶ 3 of the New Jersey Constitution. That is, the approved map does not construct districts “as nearly compact and equal in the number of their inhabitants as possible” and no, or as few as possible, county or municipal splits.

The trial court granted defendants’ motion to dismiss the complaint for failure to state a claim and upheld the validity of the approved map. Citing to Scrimminger v. Sherwin and Davenport v. Apportionment Commission of the State of New Jersey (Davenport I and Davenport II), the trial judge wrote that the prohibition on county splits in Article IV of the New Jersey Constitution was in violation of the federal Constitution under the “one person, one vote” principle. The court held the “whole county” concept was abandoned and that adherence to county lines to the extent possible is no longer constitutionally required.

Held: The legislative apportionment map approved by the State of New Jersey Apportionment Commission on April 3, 2011, is valid.

In light of the case law, particularly Scrimminger and Davenport II, which were decided after the 1970 census, the commission reasonably viewed its task as unconstrained by a need to create districts within the borders of county lines. Plaintiffs did not make a showing, either to the commission or before the court, that demographic data shifts had changed the facts from the 1970 census in a way that would now allow for effective redistricting using county lines. Plaintiffs’ own map submissions do not meet that standard. Once plaintiffs’ submissions showed that a redistricting plan could not honor county lines in view of the other important redistricting considerations, it was reasonable for the commission to abandon further consideration of that factor as the Davenport II court had permitted under the 1970 census.

Nor did the commission defendants violate the one-person, one-vote (OPOV) requirement or the Equal Protection Clause of the Fourteenth Amendment of the U.S. Constitution. The trial court appropriately found “presumptively constitutional” the deviations in the approved map, which it characterized as “nowhere near that needed to support a cognizable legal claim for voter dilution and violation of OPOV and/or the Equal Protection Clause.” Further, even if the approved map had deviations that were not “minor,” plaintiffs did not demonstrate that the claimed deviations were caused by impermissible redistricting considerations.

Plaintiffs’ arguments to the contrary notwithstanding, the commission process focused on valid redistricting factors that courts have upheld, and its resulting map met all of the required parameters. The commission’s process included more than the required numbers of public meetings, and plaintiffs’ submissions were encouraged and displayed. The judge correctly held that no standards require a precisely even split of overpopulated districts between the northern and southern parts of the state, and the ratio is not so overwhelming as to suggest that impermissible redistricting considerations were applied. Plaintiffs have not articulated any way in which the process or its results violated their rights under the federal Constitution.

The order dismissing the complaint challenging the legislative reapportionment map approved by the State of New Jersey Apportionment Commission on April 3, 2011, is affirmed.

For appellant in A-0747-11 — Richard J. McManus (Efros & Wopat; McManus and John W. Wopat III on the brief). For appellants in A-0869-11 — Michael E. Goldberg. For respondents: State of New Jersey Apportionment Commission et al. — Angelo J. Genova (Genova, Burns & Giantomasi, The Law Offices of William J. Castner, and Paul M. Smith (Jenner & Block) of the D.C. bar, admitted pro hac vice; Genova, Castner and Smith. Celia S. Bosco and Justin A. Jacobs on the briefs); Secretary of State Kim Guadagno et al. — George N. Cohen, Deputy Attorney General (Jeffrey S. Chiesa, Attorney General); Dr. Alan Rosenthal — Ronald K. Chen (Constitutional Litigation Clinic, Rutgers School of Law-Newark in A-0869-11; Chen and John J. Farmer Jr. on the brief).