Gonzalez v. State of New Jersey Apportionment Comm’n, ___ N.J. Super. ___ (App. Div. 2012). The Tea Party has had little electoral success in New Jersey. Its efforts to achieve its ends by litigation have also not met with success. Previously, the Tea Party failed in an effort to force a recall of Senator Menendez. In the attached decision, issued yesterday, the Tea Party failed in a challenge to the New Jersey legislative district map adopted by the State of New Jersey Apportionment Commission. Judge Cuff, soon to be elevated to the Supreme Court, wrote the panel’s opinion.
Plaintiffs’ case was dismissed for failure to state a claim on which relief could be granted. As a result, the standard of review of the Law Division’s dismissal decision was plenary, with no deference being accorded to that ruling. Nonetheless, the panel affirmed the Law Division’s decision. That result came about, in part, because of the deferential standard of review of apportionment actions that the Supreme Court previously articulated. Apportionment plans receive 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.”
As Judge Cuff described, the caselaw as to federal districting requires “greater precision in mathematical equality” than does state redistricting. There was sufficient mathematical precision in the plan that was adopted here. No improper factors contributed to the map either, unlike in a case involving redistricting in a southern state, on which plaintiffs relied heavily. Accordingly, the panel rejected plaintiffs’ argument that the map violated their right to equal protection under the United States Constitution.
Plaintiffs also contended, however, that the plan violated Article IV, section 2 of the New Jersey Constitution, which requires districts to be composed of one or more whole counties. The plan breaks up counties in creating districts. Judge Cuff carefully recounted a series of Supreme Court of the United States redistricting decisions whose import was, as the Supreme Court of New Jersey later found, to void the “county lines” requirement. After those decisions, “the county concept ceased to have any viability in the creation of Senate districts.” In fact, even maps submitted to the Commission by plaintiffs themselves broke up counties. “[O]nce 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 Supreme Court of New Jersey had previously permitted.
Finally, plaintiffs asserted that the map violated Article I, paragraph 2(a) of the New Jersey Constitution. That paragraph declares that “[a]ll political power is inherent in the people,” and recognizes that the people “have the right at all times to alter or reform the same.” Judge Cuff ruled, however, that the paragraph did not create a right of action in plaintiffs. Quoting a prior Appellate Division decision, she concluded that “[a]rticle I, paragraph 2 is purely an affirmation of the basic democratic principle that the people retain the right to change their form of government by constitutional amendment. It was not intended to confer any constitutional rights upon individuals.”