BARBARA GONZALEZ V. STATE OF NEW JERSEY APPORTIONMENT COMMISSION

Annotate this Case

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0747-11T4

A-0869-11T4

APPROVED FOR PUBLICATION

September 10, 2012

APPELLATE DIVISION

ARBARA GONZALEZ, individually and as Founder of the Bayshore Tea Party Group; ROBERT A. GORDON, individually and as Chairman of the Bayshore Tea Party Group; CONNIE J. SHERWOOD, CLARK SHERWOOD, NANCY PETERSON and TED PETERSON, individually and as leaders of the Ocean County Citizens for Freedom; DARYL BROOKS, JOSEPH ABBRUSCATO, ANTOINETTE DELGUIDICE, FRANK GONZALEZ, LYNN GORDON, BRIAN HEGARTY, HELENE HENKEL, SHELLY KENNEDY, CHARLES DRAKE MEASLEY, WILLIAM HANEY, DEBBIE SUTTON, PETER MICHAEL CARROLL, JIM LESKOWITZ, KELLY ANN HART, ADRIANNE S. KNOBLOCH, VINCENT AVANTAGIATO, PAUL ALBANESE, AL FRENCH, LINDA SHUTE, MICHAEL PIERONE, DANIEL BIRINGER, CATHERINE V. GIANCOLA, EDWARD J. SIMONSON, FRANK COTTONE, MICHELE TALAMO, CAROL J. GALLENTINE, DOUGLAS SALTERS, MARY LOGAN, EDWARD AUWARTER, SUSAN LORD, JOHN ANDREW YOUNG and BRENDA ROAMES,

Plaintiffs-Respondents,

and

RICHARD J. McMANUS, ESQUIRE,

Plaintiff/Intervenor-

Appellant,

vs.

STATE OF NEW JERSEY APPORTIONMENT COMMISSION; NILSA CRUZ-PEREZ, JOSEPH CRYAN, SHEILA OLIVER, ALAN ROSENTHAL, PAUL SARLO, JOHN WISNIEWSKI, in their official Capacity as Members of the State of New Jersey Apportionment Commission; KIM GUADAGNO, in her official capacity as Secretary of State of the State of New Jersey; JEFFREY S. CHIESA [successor to PAULA DOW],1 in his official capacity as Attorney General of the State of New Jersey; and ROBERT F. GILES, in his official capacity as Director, Division of Elections of the State of New Jersey,

Defendants-Respondents.

BARBARA GONZALEZ, individually and as Founder of the Bayshore Tea Party Group; ROBERT A. GORDON, individually and as Chairman of the Bayshore Tea Party Group; CONNIE J. SHERWOOD, CLARK SHERWOOD, NANCY PETERSON and TED PETERSON, individually and as leaders of the Ocean County Citizens for Freedom; DARYL BROOKS, JOSEPH ABBRUSCATO, ANTOINETTE DELGUIDICE, FRANK GONZALEZ, LYNN GORDON, BRIAN HEGARTY, HELENE HENKEL, SHELLY KENNEDY, CHARLES DRAKE MEASLEY, WILLIAM HANEY, DEBBIE SUTTON, PETER MICHAEL CARROLL, JIM LESKOWITZ, KELLY ANN HART, ADRIANNE S. KNOBLOCH, VINCENT AVANTAGIATO, PAUL ALBANESE, AL FRENCH, LINDA SHUTE, MICHAEL PIERONE, DANIEL BIRINGER, CATHERINE V. GIANCOLA, EDWARD J. SIMONSON, FRANK COTTONE, MICHELE TALAMO, CAROL J. GALLENTINE, DOUGLAS SALTERS, MARY LOGAN, EDWARD AUWARTER, SUSAN LORD, JOHN ANDREW YOUNG and BRENDA ROAMES,

Plaintiffs-Appellants,

and

RICHARD J. McMANUS, ESQUIRE,

Plaintiff/Intervenor-

Respondent,

vs.

STATE OF NEW JERSEY APPORTIONMENT COMMISSION; NILSA CRUZ-PEREZ, JOSEPH CRYAN, SHEILA OLIVER, ALAN ROSENTHAL, PAUL SARLO, JOHN WISNIEWSKI, in their official Capacity as Members of the State of New Jersey Apportionment Commission; KIM GUADAGNO, in her official capacity as Secretary of State of the State of New Jersey; JEFFREY S. CHIESA [successor to PAULA DOW], in his official capacity as Attorney General of the State of New Jersey; and ROBERT F. GILES, in his official capacity as Director, Division of Elections of the State of New Jersey,

Defendants-Respondents.

September 10, 2012

Argued: June 6, 2012 - Decided:

Before Judges Cuff, Lihotz, and Waugh.

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-1173-11.

Richard J. McManus argued the cause for appellant in A-0747-11 (Efros & Wopat, attorneys; John W. Wopat, III, and Mr. McManus, on the brief).

Michael E. Goldberg argued the cause for appellants in A-0869-11.

Angelo J. Genova argued the cause for respondents the State of New Jersey Apportionment Commission, Nilsa Cruz-Perez, Joseph Cryan, Sheila Oliver, Paul Sarlo and John Wisniewski in both appeals (Genova, Burns & Giantomasi, The Law Offices of William J. Castner, and Paul M. Smith (Jenner & Block, L.L.P.) of the Washington, D.C. bar, admitted pro hac vice, attorneys; Mr. Genova, Mr. Castner and Mr. Smith, of counsel and on the briefs; Celia S. Bosco and Justin A. Jacobs, on the briefs).

George N. Cohen, Deputy Attorney General, argued the cause for respondents Secretary of State Kim Guadagno, Attorney General Jeffrey S. Chiesa, and Robert F. Giles, Director of the New Jersey Division of Elections in both appeals (Jeffrey S. Chiesa, Attorney General, attorney; Mr. Cohen, on the statements in lieu of brief).

Ronald K. Chen argued the cause for respondent Dr. Alan Rosenthal (Constitutional Litigation Clinic, Rutgers School of Law-Newark, attorney in A-0869-11; John J. Farmer, Jr., and Mr. Chen, on the brief).

The opinion of the court was delivered by

CUFF, P.J.A.D.

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 (Commission) on April 3, 2011 (the approved map).2 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. Plaintiffs and intervenor Richard J. McManus, Esquire, assert the approved map violates the Federal and New Jersey Constitutions. We affirm.

Pursuant to the process set forth in Article IV, Section 3, of the New Jersey Constitution, the Commission was constituted and on April 3, 2011, adopted and certified to the Secretary of State the approved map.

On May 11, 2011, the following plaintiffs, Barbara Gonzalez, Robert A. Gordon, Connie J. Sherwood, Clark Sherwood, Nancy Peterson, Ted Peterson, Daryl Brooks, Joseph Abbruscato, Antoinette Delguidice, Frank Gonzalez, Lynn Gordon, Brian Hegarty, Helene Henkel, Shelly Kennedy, Charles Drake Measley, William Haney, Debbie Sutton, Peter Michael Carroll, Jim Leskowitz, Kelly Ann Hart, Adrianne S. Knobloch, Vincent Avantagiato, Paul Albanese, Al French, Linda Shute, Michael Pierone, Daniel Biringer, Catherine V. Giancola, Edward J. Simonson, Frank Cottone, Michele Talamo, Carol J. Gallentine, Douglas Salters, Mary Logan, Edward Auwarter, Susan Lord, John Andrew Young, and Brenda Roames filed a ten-count verified complaint and order to show cause. As set forth in the verified complaint, among the plaintiffs are voters registered as Democrats and Republicans, as well as those affiliated with third parties, and unaffiliated voters. Many plaintiffs identify themselves as members of the "Bayshore Tea Party Group" (Bayshore Group), and others are listed as affiliated with other entities that have "Tea Party" included in their names; several others are listed as founders of "Ocean County Citizens for Freedom."

The complaint named the following as defendants: the Commission and its five Democratic Party members, namely Nilsa Cruz-Perez, Joseph Cryan, Sheila Oliver, Paul Sarlo, and John Wisniewski, (collectively, the Commission defendants), plus the Commission's tiebreaking member Dr. Alan Rosenthal, all in their official capacities as members of the Commission; Kim Guadagno, in her official capacity as Secretary of State; Paula Dow, in her official capacity as Attorney General, now succeeded by Jeffrey S. Chiesa; and Robert F. Giles, in his official capacity as Director of the Division of Elections (collectively the State election defendants).3

Following telephonic oral argument, Judge Linda R. Feinberg, A.J.S.C., entered an order on May 26, 2011, denying temporary restraints and setting dates for responses and a hearing. On or about July 25, 2011, McManus moved to intervene as a plaintiff. Despite opposition from the Commission defendants, the court granted the motion. Judge Feinberg heard oral argument on August 18, 2011. On August 31, 2011, the judge entered an order denying injunctive relief and dismissing the complaint for reasons set forth in an eighty-page opinion also filed that day.

Plaintiffs and McManus separately filed timely notices of appeal on October 14, 2011. McManus argues the approved map violates Article IV, Section 2, Paragraph 3 of the New Jersey Constitution The individual plaintiffs contend the approved map violates United States Constitution, Amendment XIV, and violates provision of New Jersey Constitution, Article I, Paragraph 2a. The Supreme Court denied a motion for direct certification.

The New Jersey Constitution establishes the Commission, pursuant to Article IV, Section 3, (emphasis added), which provides:

1. After the next and every subsequent decennial census of the United States, the Senate districts and Assembly districts shall be established, and the senators and members of the General Assembly shall be apportioned among them, by an Apportionment Commission consisting of ten members, five to be appointed by the chairman of the State committee of each of the two political parties whose candidates for Governor receive the largest number of votes at the most recent gubernatorial election. Each State chairman, in making such appointments, shall give due consideration to the representation of the various geographical areas of the State. Appointments to the Commission shall be made on or before November 15 of the year in which such census is taken and shall be certified by the Secretary of State on or before December 1 of that year. The Commission, by a majority of the whole number of its members, shall certify the establishment of Senate and Assembly districts and the apportionment of senators and members of the General Assembly to the Secretary of State within one month of the receipt by the Governor of the official decennial census of the United States for New Jersey, or on or before February 1 of the year following the year in which the census is taken, whichever date is later.

2. If the Apportionment Commission fails so to certify such establishment and apportionment to the Secretary of State on or before the date fixed or if prior thereto it determines that it will be unable so to do, it shall so certify to the Chief Justice of the Supreme Court of New Jersey and he shall appoint an eleventh member of the Commission. The Commission so constituted, by a majority of the whole number of its members, shall, within one month after the appointment of such eleventh member, certify to the Secretary of State the establishment of Senate and Assembly districts and the apportionment of senators and members of the General Assembly.

3. Such establishment and apportionment shall be used thereafter for the election of members of the Legislature and shall remain unaltered until the following decennial census of the United States for New Jersey shall have been received by the Governor.

Within that process, the Commission's duties are guided by Article IV, Section 2, (emphasis added), which provides:

1. The Senate shall be composed of forty senators apportioned among Senate districts as nearly as may be according to the number of their inhabitants as reported in the last preceding decennial census of the United States and according to the method of equal proportions. Each Senate district shall be composed, wherever practicable, of one single county, and, if not so practicable, of two or more contiguous whole counties.

2. Each senator shall be elected by the legally qualified voters of the Senate district, except that if the Senate district is composed of two or more counties and two senators are apportioned to the district, one senator shall be elected by the legally qualified voters of each Assembly district. Each senator shall be elected for a term beginning at noon of the second Tuesday in January next following his election and ending at noon of the second Tuesday in January four years thereafter, except that each senator, to be elected for a term beginning in January of the second year following the year in which a decennial census of the United States is taken, shall be elected for a term of two years.

3. The General Assembly shall be composed of eighty members. Each Senate district to which only one senator is apportioned shall constitute an Assembly district. Each of the remaining Senate districts shall be divided into Assembly districts equal in number to the number of senators apportioned to the Senate district. 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 preceding 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.

The facts surrounding the 2011 redistricting and apportionment are drawn primarily from plaintiffs' complaint; those facts are presumed true and given the benefit of all favorable inferences in deciding a motion to dismiss. Velantzas v. Colgate-Palmolive Co., 109 N.J. 189, 192 (1988).

Following the 2010 census, the Republican and Democratic Party Chairmen each appointed five members to the Commission. The five Democratic Party members, the Commission defendants in this action, are: Chairman of the State Democratic Committee John Wisniewski, plus Nilsa Cruz-Perez, Joseph Cryan, Sheila Oliver, and Paul Sarlo. The Republican Party members are: Chairman of the State Republican Committee Jay Webber, plus Irene Kim Asbury, George R. Gilmore, Kevin O'Toole, and Bill Palatucci. On or about March 4, 2011, with those ten Commission members at an impasse, the Chief Justice appointed Rosenthal as the tiebreaking member; Rosenthal was the only person whose name appeared on both parties' three-person nomination lists submitted to the Chief Justice. Pursuant to Article IV, Section 3, paragraph 2 of the State Constitution, the Commission had one month from that date to certify the establishment of districts and apportionment of State legislators.

The Commission's by-laws required it to hold at least three public meetings. It held seven public meetings, four prior to Rosenthal's appointment, and three afterward. The Commission has posted transcripts of all of those public meetings on its website at http://apportionmentcommission.org/schedule.asp.

The Commission, being exempt from the Open Public Meetings Act pursuant to N.J.S.A. 10:4-7, also held several private meetings at the Heldrich Hotel in New Brunswick. Plaintiffs assert the partisan delegations to the Commission "each submitted several proposed maps to the eleventh member."

Soon after Rosenthal's appointment, plaintiff Gonzalez, on behalf of the Bayshore Group, wrote to him, congratulating him on his appointment, asserting the group's interests and positions regarding districting and gerrymandering, and opposing "any map drawn to protect incumbents of either party." Gonzalez noted that the group had purchased software to enable it to draw and submit maps of proposed State legislative districts that would comply with the State Constitution; in their complaint, plaintiffs note that the maps they eventually submitted were actually created by hand without assistance of that software. Regarding the many residents who were not partisan Republicans or Democrats, Gonzalez asserted that Rosenthal "may be the only advocate for this majority of New Jerseyans" and she invited Rosenthal to attend one of the Bayshore Group's Redistricting Committee meetings. Rosenthal wrote back on March 17, 2011, declining to attend their meeting, but stating that the Bayshore Group's letter had been entered in the Commission's record and that he encouraged the group's further comments.

Plaintiffs' complaint argued the Commission's "structure and application" did not provide representation to the forty-five percent of New Jersey's registered voters who were unaffiliated with the Republican and Democratic parties. This reality ran counter to the statements of several Commission members, as quoted in the complaint, that the Commission's efforts must create a fair redistricting for all of New Jersey's residents.

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. Some of those were drawn from the New Jersey Constitution, some from the federal Voting Rights Act (VRA), 42 U.S.C.A. 1973, and some from decisions of the United States Supreme Court. Other standards were "not legally specified" but Rosenthal thought that they "make sense from the standpoint of what I think the public interest is."

Rosenthal identified the first standard as district size. Rosenthal sought to "strive for districts that are as equal as possible, perhaps a 5% deviation -- 2.5% above and 2.5% below the average district, if we can make it. No single district, I would hope, would deviate more than 10% from the norm." Rosenthal identified seven additional standards: (1) no division of municipalities, except for Newark and Jersey City which would be "divided no more than once"; (2) contiguity, that "each district [would] not be scattered in several pieces"; (3) compactness, as much like a square, circle, or rectangle as possible, recognizing that the whole-municipality standard made perfect compactness impossible; (4) recognition of "social, cultural, ethnic, and economic communities of interest"; (5) "continuity of representation," if it did not conflict with other more important standards, to allow for "as little disruption as is necessary"; (6) competitiveness, in that the redistricting "should absolutely not reduce the number of competitive districts and, perhaps, increase the number a bit"; and (7) meet the requirements of the VRA.

Finally, Rosenthal stated he considered it his responsibility as the Commission's eleventh member to seek "partisan fairness" and to "help resolve differences between the Republican and Democratic Commissioners and arrive at a settlement that is fair to both sides." His objective was to help them "reach agreement on a single map -- I hope -- that meets the standards just specified" and that "I'll have the special job of ensuring partisan fairness that neither party comes out ahead of the other party in this enterprise."

Rosenthal made no mention of the State constitutional provision restricting divisions of counties, N.J. Const., art. IV, 2, 1, an approach which, plaintiffs assert, "would significantly impede gerrymandering attempts." Plaintiffs further observed that Republican Commission Co-Chairman Webber also did not refer to the limitation on county splits.

On or about March 24, 2011, the Bayshore Group submitted a map to the Commission for consideration. That map, known as the People's Map I and presented as Exhibit D to the verified complaint, is attached as Appendix I, along with numerous pages showing the population allocations for each proposed district in that map. Plaintiffs maintain that this map "complies with all federal and state legal requirements," with districts that "are contiguous and more compact than the Commission Map by an order of magnitude." This map also "contains three (3) county over splits." From viewing a television news video, plaintiffs learned that a "large scale blown up picture" of this map had hung on the wall in a Commission meeting room at the Heldrich Hotel. "Thus, the Commission had an example of a constitutional map and chose instead to ignore the law."

The Bayshore Group submitted a second map to the Commission on or about March 28, 2011, known as the People's Map II and presented as Exhibit E to the verified complaint,4 along with supporting population allocations pages. The supporting pages for the People's Map II contained additional information about the proposed districts' deviations from the norm, which the People's Map I had not included. As compared with the approved map, plaintiffs assert that the People's Map II compares more favorably, having the following characteristics: (1) "a narrower range of total population deviation from highest to lowest"; (2) "a smaller absolute population deviation"; (3) contiguous districts that were more compact; and (4) "only six (6) county over splits[.]" Plaintiffs assert that this map also "complies with all federal and state legal requirements."

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

Upon adoption, Rosenthal commented again on his role in trying to assure that the map was "fair in partisan terms." He explained:

The Democratic map, I believe, was a more conservative, less disruptive map. It reflected the current distribution of partisan preferences in New Jersey, but it also allowed for change if the party preferences of the electorate shift. It is a map, I believe, that gives the minority party[] a chance of winning control of the Legislature, even in what is essentially a Democratic state.

Also upon the adoption, Republican State Party Chair Webber identified his concern that

we have a . . . population deviation problem in the map. Twelve of the 14 southernmost districts in this map are overpopulated. 14 of the 20 districts in the south in this map are over the ideal population. 14 of the 20 districts in the north were under populated. Again that means that, as, when the voters go to polls this year, the votes cast by people in the northern part of the State will count for more than the votes cast by the voters in the southern part of the State.

As plaintiffs explained their concerns about districting along the county lines, they asserted in the complaint:

The Commission Map over splits counties 31 times, seven more times than the 2001-2010 Map. Sixteen out of New Jersey's 21, or 76%, of counties are over split, including seven (7) counties over split once, five (5) counties over split twice, two (2) counties over split three times, two (2) counties over split four times. Additionally fifteen (15) districts in the Commission Map are divided by two counties, nine (9) by three counties and three (3) by four counties.

They further asserted that the approved map "over-populates the 14 southernmost counties (Districts 1-13 and 30) by over 18%. In the northern 26 districts, the Commission Map under-populates by 40,574 for an aggregate population deviation of approximately 37%."

Plaintiffs prepared two documents to demonstrate these differences. Exhibit F, attached as Appendix IV, shows a population deviation comparison between the approved map and People's Map II. The comparison does not define its terms or identify its methodology, but it lists by district the absolute deviation and relative deviation from the 219,797 ideal district size. The relative deviation figures for the People's Map II are within .01% of the figures listed for "%Deviation" on the detailed municipality-specific population total pages, presumably due to differences in rounding. The comparison with the approved map shows the People's Map II more favorably than the approved map in five areas:

Commission Map

[People's Map II]

1-Total absolute deviation (Treating all #s as positive)

135,904

103,121

2-Absolute Mean Deviation

3,398

2,578

3-Relative Mean Deviation (Ideal Dist Pop = 219,797)

1.55%

1.17%

4-Total Range of Absolute Pop Deviation

11,428

11,361

5-Total Range of Relative Pop Deviation

5.20%

5.17%

Exhibit G, attached as Appendix V, analyzes the approved map's "Over splits by County," showing (1) the county and its population, (2) the number of districts into which the approved map splits the county, (3) the number of districts allowed applying the constitutional county-line formula for that county's population figure, and (4) the "over splits," which is the difference between items (2) and (3). That table shows the following:

County/

Population

# of districts/county

# of districts/county allowed by N.J. Const.

Over splits/

County

Atlantic/274,549

Bergen/905,116

Burling[t]on/ 448,734

Camden/513,657

Cape May/97,265

Cumberland/156,898

Essex/783,969

Gloucester/288,288

Hudson/634,266

Hunterdon/128,349

Mercer/366,513

Middlesex/809,858

Monmouth/630[,]380

Morris/492,276

Ocean/576,567

Passaic/501,226

Salem/66,083

Somerset/323,444

Sussex/149,265

Union/536,499

Warren/108,692

Total Oversplits

Plaintiffs and McManus contend that the approved map must be declared invalid because it violates Article IV, Section 2, paragraph 3 of the New Jersey Constitution. That is, the approved map does not construct Assembly 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 judge's opinion addressed this issue, citing to cases arising from the 1970 Census and redistricting, Scrimminger v. Sherwin, 60 N.J. 483 (1972), and Davenport v. Apportionment Commission of the State of New Jersey, 63 N.J. 433 (1973) (Davenport I), and 65 N.J. 125 (1974) (Davenport II). The trial judge wrote:

Scrimm[i]nger and Davenport make abundantly clear that the prohibition on county splits in Article IV of the New Jersey Constitution "has been declared to be in violation of the Federal Constitution under the [OPOV [meaning one person, one vote]] principle." Id. [Davenport II, 65 N.J.] at 132. In Davenport, the New Jersey Supreme Court expressly held that the "whole county" concept "must be abandoned" and that "adherence to county lines to the extent possible, i.e., placing as many Senate districts as possible within whole counties"

is no longer constitutionally required. Ibid.

The trial judge relied upon the following quotation from Davenport II, supra, 65 N.J. at 133:

[W]e think it clear that attempting to preserve some semblance of county voting strength would create a plethora of constitutional problems. Were dilution of county voting strength a required consideration in applying [one person, one vote], the degree of dilution would have to be considered and equalized along with population, a difficult if not impossible task to perform.

We are satisfied that once the use of counties as building blocks was declared unenforceable, as it had to be under the demographic pattern shown by the 1970 census, the county concept ceased to have any viability in the creation of Senate districts.

The trial judge continued:

Plaintiffs erroneously conclude that the above language means the Commission must try to adhere to the prohibition on county splits, and if unable to, must explain why it was forced to abandon that constitutional provision in favor of some more important constitutional imperative pursuant to Article IV, Section 3, Paragraph 3 of the New Jersey Constitution. The clear language of the Court's decision belies this, however.

The Court explained that "attempting to preserve county voting strength would create a plethora of constitutional problems" and that "once the use of counties as building blocks was declared unenforceable . . . the county concept ceased to have any viability in the creation of Senate districts." That last phrase quoted did not limit the abandonment of the county split prohibition to any particular Map. Rather, it stated that county split prohibition "ceased to have any viability in the creation of senate districts," period. Because division of counties is permitted as a tool for achieving compactness, merely alleging the presence of county over-splits alone is neither sufficient nor relevant to plaintiffs' compactness claim.

Plaintiffs contend the provision is violated because the approved map "over-splits counties 31 times and contains 17 non-compact Districts" in order to "carry out a scheme of unlawful political and partisan gerrymandering" and to eliminate viable contests in elections for those districts, to "lock-in incumbents and the dominance of the Democratic Party" for the next decade. Plaintiffs reject the conclusions of defendants and the trial court that the constitutional requirement prohibiting county over-splits is no longer valid or enforceable. They argue that, in the absence of a valid constitutional amendment, the Commission was obligated to honor this constitutional requirement.

Further, the Supreme Court's redistricting cases have made clear that compactness is an important standard, which is not met by the seventeen oddly shaped districts in the approved map. Even though Rosenthal recognized that compactness was a standard to which the approved map must adhere, he voted for a map that did not meet that standard.

Plaintiffs recognize the State constitutional provisions must yield to the United States Constitution where conflicts exist, but contend the county-line provision was not overridden by federal concerns here. They insist that Scrimminger, which holds federal requirements override the county-line provision, is limited to the facts of the 1970 Census and redistricting. Plaintiffs also argue the approved map's partisan gerrymandering creates a "rigged game" and a Legislature unaccountable to the people, and discriminates against voters in the non-dominant party (here, the Republicans). Acknowledging "perfection is not possible," plaintiffs assert that "[i]t is relatively easy to design a Map that complies" with New Jersey's constitutional requirements. They assert that "Appellants-Plaintiffs did it. They designed a Map with districts that were compact and contained no more than six county over-splits," so their map's minor deviations provided "compelling evidence" that the approved map "was way out of bounds and could have gotten much closer to the standards prescribed by" the New Jersey Constitution.

McManus frames his argument somewhat differently. He recognizes that the Supreme Court held, with regard to the 1970 Census figures, that the county line requirement was unconstitutional and unenforceable. He asserts, however, that the 1974 dissent by Justice Pashman, echoed more recently in a 2003 dissent by Justice LaVecchia, was "better reasoned, persuasive and adheres to the State Constitution." He urges this court to follow the approach of those dissenting Justices, who concluded that the Commission must tailor its map to meet the county line requirement as closely as possible within the constraints of the federal constitutional concerns. A remand to meet that standard would not be futile, McManus urges, because the alternative maps submitted by the Bayshore Group, most particularly the People's Map I, seemed to conform to Justice Pashman's approach.

A motion to dismiss under Rule 4:6-2(e) requires application of "the test for determining the adequacy of a pleading: whether a cause of action is 'suggested' by the facts." Printing Mart-Morristown v. Sharp Elecs. Corp., 116 N.J. 739, 746 (1989) (quoting Velantzas, supra, 109 N.J. at 192). "At this preliminary stage of the litigation the Court is not concerned with the ability of plaintiffs to prove the allegation contained in the complaint. For purposes of analysis plaintiffs are entitled to every reasonable inference of fact." Ibid. (citation omitted). However, "[a] pleading should be dismissed if it states no basis for relief and discovery would not provide one." Rezem Family Assocs., LP v. Borough of Millstone, 423 N.J. Super. 103, 113 (App. Div.), certif. denied and appeal dismissed by 208 N.J. 366 (2011).

On appeal, this court will "apply a plenary standard of review from a trial court's decision to grant a motion to dismiss" and it "owe[s] no deference to the trial court's conclusions." Id. at 114.

To address the arguments presented in this appeal, we must review the existing case law on the subject of reapportionment. The New Jersey Supreme Court explained the court's limited role in reviewing redistricting matters in Davenport II, supra, 65 N.J. at 135:

The judicial role in reviewing the validity of such a plan is limited. Reapportionment is essentially a political and legislative process. The plan must be accorded a presumption of legality with judicial intervention warranted only if some positive showing of invidious discriminat[i]on 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.

In the present case, Judge Feinberg found that plaintiffs had failed to meet the Printing Mart burden, 116 N.J. at 746, and gave plaintiffs "every reasonable inference of fact," as required on a motion to dismiss, and found that no cause of action was suggested by the facts. Therefore, the court granted defendants' motion to dismiss the complaint for failure to state a claim and upheld the validity of the approved map.

At both the state and federal levels of government, significant case law guides the redistricting and apportionment plans for state legislatures. In Baker v. Carr, 369 U.S. 186, 82 S. Ct. 691, 7 L. Ed. 2d 663 (1962), the United States Supreme Court held that federal courts had jurisdiction to decide whether a state apportionment plan for election to its legislature violates the United States Constitution's Fourteenth Amendment. Soon thereafter the Court decided Reynolds v. Sims, 377 U.S. 533, 84 S. Ct. 1362, 12 L. Ed. 2d 506 (1964), which established the one-person, one-vote principle. The Court held that "the Equal Protection Clause requires that a State make an honest and good faith effort to construct districts, in both houses of its legislature, as nearly of equal population as is practicable." Id. at 577, 84 S. Ct. at 1390, 12 L. Ed. 2d at 536. The Court added, however, "[w]e realize that it is a practical impossibility to arrange legislative districts so that each one has an identical number of residents, or citizens, or voters. Mathematical exactness or precision is hardly a workable constitutional requirement." Ibid.

Notably, the case law addressing Congressional districts requires greater precision in mathematical equality than the courts have typically required for state legislative districts. For example, in Karcher v. Daggett, 462 U.S. 725, 103 S. Ct. 2653, 77 L. Ed. 2d 133 (1983), the Court held New Jersey's Congressional redistricting plan was unconstitutional despite a less than one percent difference between the largest and smallest districts, because the State's plan did not show a good-faith effort to achieve population equality and the evidence presented did not support the State's attempt to justify the population deviations. In contrast, in Brown v. Thomson, 462 U.S. 835, 103 S. Ct. 2690, 77 L. Ed. 2d 214 (1983), the Court affirmed Wyoming's state legislative redistricting plan despite districts with very unequal populations, confirming that for state redistricting a presumption of legitimacy is generally allowed if population variations were less than ten percent.

In Jackman v. Bodine, 43 N.J. 453 (1964) (Bodine I), the New Jersey Supreme Court held that, in view of the Reynolds v. Sims decision, the legislative article of the New Jersey Constitution was invalid insofar as it dealt with apportionment of members of the legislature, because the Federal Equal Protection Clause demanded that in a bicameral state legislature, such as New Jersey's, the seats of both houses must be apportioned substantially based on population. At that time, Article IV, Section 2, Paragraph 1 and Article IV, Section 3, Paragraph 1 of the 1947 New Jersey Constitution allocated at least one Senator and one Assemblyperson from each county, regardless of population.

A line of cases developed in 1964 to 1965 concerning how to address that issue until a constitutional solution could be developed. Jackman v. Bodine, 43 N.J. 491 (1964) (Bodine II); 44 N.J. 312 (1965) (Bodine III); and 44 N.J. 414 (1965) (Bodine IV). New Jersey's constitution was amended in 1966, and when those amendments were challenged, the Court in Jackman v. Bodine, 49 N.J. 406 (1967) (Bodine V), required some district lines to be altered in order to reduce population deviation. A modified redistricting plan was challenged in Jackman v. Bodine, 50 N.J. 127 (1967) (Bodine VI), and the Court upheld the Commission plan, concluding that it contained the smallest possible population deviation and that the districts were sufficiently compact to survive the challenge.

When the Commission recertified a new legislative plan under the Bodine V and Bodine VI guidelines in April 1969, a challenge asserted that United States Supreme Court cases, such as 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), did not permit any population deviation to occur in order to comply with county or municipal boundaries. Jackman v. Bodine, 53 N.J. 585 (1969) (Bodine VII), cert. denied, 396 U.S. 822, 90 S. Ct. 63, 24 L. Ed. 2d 73 (1969). The Bodine VII Court noted that Reynolds held that population deviations may occur when dealing with political subdivisions, and that Kirkpatrick and Wells, which dealt with Congressional districting and not the apportionment of a state legislature, did not abandon that notion. Id. at 587-88. Significantly, however, the Bodine VII Court retained some "considerable doubt as to whether the basic plan of apportionment in our State Constitution is compatible with Federal Constitutional requirements as to either the Senate or Assembly." Id. at 588. Specifically, the Court had "doubt that further apportionments can be made without exceeding permissible tolerances from mathematical equality. It may, therefore, be necessary to depart from the State Constitution's insistence that county and municipal lines be respected." Ibid. The Court directed how the imminent elections could go forward under the existing plan, and scheduled additional argument for the fall on those broader concerns. Id. at 588-89.

Then, in Jackman v. Bodine, 55 N.J. 371, 377-78 (Bodine VIII), cert. denied, 400 U.S. 849, 91 S. Ct. 39, 27 L. Ed. 2d 87 (1970), the Court was able to allay its prior doubts, examining the federal requirements and precedents and concluding that Reynolds accepted districts as constitutional even though those districts may have departed from a strict numerical calculation of the one-person, one-vote principle. Accordingly, it held that departures from mathematical equality among districts were still permissible under Reynolds, and that, in a facial challenge, the apportionment system set out in the new constitutional provisions was not "inherently bad." Id. at 378-82. Applying case law derived from redistricting for congressional elections, from which it derived principles "equally pertinent to state legislative redistricting," id. at 383, the Court stressed that

there is no range of deviation "within which a State may maneuver, with or without reason"; that "the command is to achieve equality, and a limited deviation is permissible only if there exists an acceptable reason for the deviation"; and "the deviation may not exceed what the purpose inevitably requires." And when a deviation does appear, the burden is the State's to justify it. [Citation omitted.] In short, there must be selected the best plan the constitutional thesis will permit, and the best plan is the one with the least population deviation.

[Id. at 382-83 (quoting Jones v. Falcey, 48 N.J. 25, 37 (1966)).]

These cases set the stage for Scrimminger, supra, where the Court first announced abrogation of the State Constitution's county-line mandate. The Court held that under the 1970 Census figures, counties "cannot constitute separate districts. Nor are they suitable building blocks for the formation of meaningful districts." 60 N.J. at 487. The Court found that the two constitutional commands conflicted: the need for apportionment without exceeding permissible tolerances from mathematical equality, and the command to construct districts that "shall be composed, wherever practicable, of one single county, and, if not so practicable, of two or more [contiguous] whole counties." Id. at 488 (quoting N.J. Const. art. IV, 2, 1). The Court extensively discussed the intended purposes for requiring districting to conform to county lines, and why those purposes could not justify the population deviations between districts that would result from that approach. Id. at 495-97.

Scrimminger set out the county population figures from the 1970 Census, which showed why it would be impossible to apportion forty Senators among districts using the boundary lines of twenty-one counties, where one-fortieth of the statewide population was 179,266:

Cape May

59,554

Burlington

323,132

Salem

60,346

Morris

383,454

Hunterdon

69,718

Camden

456,291

Warren

73,879

Passaic

460,782

Sussex

77,528

Monmouth

461,849

Cumberland

121,374

Union

543,116

Gloucester

172,681

Middlesex

583,813

Atlantic

175,043

Hudson

609[,]266

Somerset

198,372

Bergen

898,012

Ocean

208,470

Essex

929,986

Mercer

303,968

[Id. at 488.]

The Apportionment Commission of that time created Senate districts using county lines that varied above the ideal 179,266-person district size by 13.29% above and 15.54% below the ideal, making a 28.83% range of deviations. Id. at 488-89. In view of the several United States Supreme Court cases discussed by the Court regarding population deviations in redistricting, that high range of deviations in the Commission's plan was considered unacceptable. Id. at 492-95.

The Scrimminger Court concluded by returning the matter to the Commission for creation of a new plan, directing that "[s]ince the county cannot now serve as the basis of districting," the multi-member district approach contemplated in the State Constitution would no longer apply, and so Senate districts "must be single-member districts." Id. at 497-98.

Regarding municipal boundary lines, the Court concluded:

Municipal lines should be observed, if possible, for if they are followed, dividends may be expected in terms of furthering the relationship of these political subdivisions and the State and also in terms of restraining to some extent the opportunities for drawing lines for partisan advantage. Municipalities are thus appropriate building blocks for the creation of districts. The boundaries of the larger municipalities will of course have to be breached, and in this regard, the Commission may have to depart from the direction in Art. 4, II, 3, concerning the division of a municipality.

[Id. at 497-98.]

As to other criteria, the Scrimminger Court directed:

The requirement for contiguity will obtain. So also will the requirement for compactness, which may serve to justify a deviation or to curb the quest for partisan gain, although, as we have noted before, compactness may be of limited utility in the light of the odd configurations of our State and its municipalities. Jackman, [Bodine V, supra,] 49 N.J. at 419. We of course cannot predict what range of deviation will be bad per se. We repeat, however, that there is no range of deviation within which a State may maneuver with or without reason. The constitutional command is to achieve equality, and hence a deviation may not exceed what an acceptable thesis of apportionment inevitably requires.

[Id. at 498.]

Davenport I, supra, and Davenport II, supra, addressed the new apportionment plan that followed the Scrimminger decision. In Davenport I, the Court recognized this court's expression of some doubts about whether the Court would stand by its holdings in Scrimminger in light of an intervening opinion in Mahan v. Howell, 410 U.S. 315, 93 S. Ct. 979, 35 L. Ed. 2d 320 (1973), in which the United States Supreme Court had allowed a 16.4% range of deviation in a state legislative reapportionment schemes where necessary to achieve important state goals, such as recognition of political subdivisions like cities. Davenport I, supra, 63 N.J. at 435, 443-44. Davenport I determined that nothing in Mahan provided a need to depart from the Scrimminger holdings, particularly because the New Jersey policy goals could not be met even with the resulting much larger deviations from the ideal district size. Id. at 443-46. Thus, Davenport I determined that the Scrimminger holding was intact, but raised a new concern: even though the whole county concept plan was not to be followed, did the New Jersey Constitution require that a districting plan be drawn to adhere to as many county lines as possible? Id. at 446. The Court determined the record was inadequate for addressing the question, and permitted the parties to file additional materials. Id. at 447-48.

Notably, relying upon Gaffney v. Cummings, 412 U.S. 735, 93 S. Ct. 2321, 37 L. Ed. 2d 298 (1973), Davenport I emphasizes that a reapportionment plan should not be invalidated by the judiciary simply because the Commission could have devised a somewhat better plan. The Court observed that

[t]he Court deplored the idea that a judge may strike down a plan merely because someone comes up with a plan somewhat better, saying [regarding an alternative plan devised by the Gaffney v. Cummings District Court's own appointed Master],

" . . . And what is to happen to the master's plan if a resourceful mind hits upon a plan better than the master's by a fraction of a percentage point? Involvements like this must end at some point, but that point constantly recedes if those who litigate need only produce a plan that is marginally 'better' when measured against a rigid and unyielding population equality standard."

[Davenport I, supra, 63 N.J. at 445 (quoting Gaffney, supra, 412 U.S. at 750-51, 93 S. Ct. at 2330, 37 L. Ed. 2d at 310-11).]

Furthermore, the Gaffney Court stressed that "state reapportionment is the task of local legislatures or of those organs of state government selected to perform it. Their work should not be invalidated under the Equal Protection Clause when only minor population variations among districts are proved." Gaffney, supra, 412 U.S. at 751, 93 S. Ct. at 2330, 37 L. Ed. 2d at 311.

Of equal interest, in Davenport I, the Court highlighted

Gaffney's acceptance of the proposition that the apportionment plan may be drawn with an awareness of the respective political strength of the major parties and the political consequences of the lines that are drawn, provided the deviations are acceptable and that racial and political groups are not "fenced out of the political process and their voting strength invidiously minimized."

[Davenport I, supra, 63 N.J. at 445 (quoting Gaffney, supra, 412 U.S. at 754, 93 S. Ct. at 2332, 37 L. Ed. 2d at 312).]

After reviewing additional submissions on the question, the Court in Davenport II rejected the argument that county lines should be followed as much as possible, stating:

We find no such meaning in Article IV, nor do we think valid apportionment policy requires such result. On the contrary, we think it clear that attempting to preserve some semblance of county voting strength would create a plethora of constitutional problems. Were dilution of county voting strength a required consideration in applying one-man, one-vote, the degree of dilution would have to be considered and equalized along with population, a difficult if not impossible task to perform.

[Davenport II, supra, 65 N.J. at 133.]

The approved map considered in Davenport II contained "shoestring" or "horseshoe" type districts that lacked compactness, and "odd-shaped districts were created solely for the purpose of protecting incumbent legislators." Ibid. Nevertheless, the Court found no barrier to approving the plan on this basis, explaining:

Compactness is an elusive concept. We noted in Scrimminger v. Sherwin, supra, 60 N.J. at 498, that it may be of limited utility in creating legislative districts in the light of the odd configurations of our State and its municipalities. It has never been held to constitute an independent federal constitutional requirement for State legislative districts. Gaffney v. Cummings, supra, 412 U.S. at 752, 93 S. Ct. at 2331, 37 L. Ed. 2d at 312, footnote 18. This Court has suggested that population equality is distinctly paramount to it and that where districts are created on the basis of existing political subdivisions, compactness becomes a much reduced factor. [Bodine V, supra, 49 N.J. at 419].

[Davenport II, supra, 65 N.J. at 133-34.]

Davenport II expressly recognized that "[p]olitical considerations are inherent in districting." Id. at 134. Accordingly, "[w]hile the carving out of bizarrely-shaped districts for partisan advantage will not be tolerated, the creation of balanced political districts serves a valid apportionment purpose." Ibid. While more compact districts likely could have been drawn, the Court noted "[p]roviding protection of incumbents serves a valid purpose and is a relevant factor to be taken into account in creating a legislative districting plan." Id. at 135 (citing White v. Weiser, 412 U.S. 783, 797, 93 S. Ct. 2348, 2355, 37 L. Ed. 2d 335, 347 (1973)).

Stressing its limited standard of review, the Court affirmed the Commission's plan, finding that it "adequately carries out the mandate of Scrimminger and has not been shown to be in violation of any State or Federal constitutional standards." Ibid. The Court found that the range of deviation of 4.24% well satisfied the one-person, one-vote principle of "substantial equality of population among the legislative districts," reiterating that "[a]s was noted in Davenport I, we cannot order the Commission to produce a plan with increased deviations unless we find a positive violation of some legal mandate. We do not find any such violation to exist." Ibid.

Justice Pashman dissented in Davenport II, and his dissent is the focus of McManus's appeal. Justice Pashman characterized the majority opinion as follows:

The majority, in selecting the present plan of the Apportionment Commission, has signified its desire to accept any configuration, no matter how oddly shaped, so long as the lowest possible percentage deviation can be attained. In so doing, they have sanctioned the breach of two positive constitutional mandates embodied within Article IV, 2 of our State Constitution.

[Id. at 136 (Pashman, J., dissenting).]

Justice Pashman further asserted that the majority applied "some doubtful reasoning" to conclude that the Scrimminger Court had declared the "county concept" unconstitutional. Id. at 137. He explained:

This is simply not the case. The county concept was never explicitly held to be unconstitutional. It was, however, pre-empted or superseded for a short period as being repugnant to the Equal Protection Clause of the United States Constitution. Since then the United States Supreme Court, in Mahan v. Howell, 410 U.S. 315, 93 S. Ct. 979, 35 L. Ed. 2d 320 (1973), has partially lifted the one-man, one-vote shroud from the face of our dormant State constitutional provision and has rejuvenated it. The Court in Mahan, supra, clearly backed away from its previous rigid and unyielding one-man, one-vote stance and permitted states a greater percentage deviation in redistricting if a rational state policy was effectuated. In accordance with this shift in attitude, Virginia was allowed to institute a legitimate and rational state policy of districting along county lines. The Court there accepted a 16.4% deviation from norm.

[Davenport II, supra, 65 N.J. at 137-38 (Pashman, J., dissenting).]

Justice Pashman concluded that the Court had been "unnecessarily flexible with our constitutional mandates," and he stressed the New Jersey Constitution's supremacy, except where it must yield to the Federal Constitution. Id. at 138. He emphasized the Court's duty to read the State Constitution as a whole, and "to constantly endeavor to harmonize each ingredient, reevaluate each part, and rebalance the entirety in order to form a more cohesive and meaningful unity which is in tune with the spirit of the Constitution itself." Id. at 138-39. Citing numerous cases, he added:

Our Constitution is comprised of many, often times, overlapping provisions. The solution does not lie in ignoring the one while allowing the other provision full reign. Our Constitution is a balanced concept; while the balance may shift, it is not altered through the elimination of its variables.

These cases make it more than clear that a restrictive reading of our Constitution is impermissible, as is a complete abandonment of one of its provisions. The proper role for this Court is to reinterpret our Constitution in the light of recent developments and strike a new balance. My colleagues have refrained from reevaluating Art. IV, 2 and in so doing have partially relinquished our primary judicial role.

[Id. at 139.]

Justice Pashman supported the Court's interpretation that Article IV, section 2, should be read as providing for identical provisions for both Senate and Assembly districting. Id. at 140. He believed, however, that the county line term of the Constitution was a "concept older than the Republic itself" and a traditional way of defining communities of interest. Id. at 141. He asserted that the Mahan Court elevated that approach, in allowing a 16.4% range of deviation where necessary to achieve important state goals. Id. at 143. He noted that the county as a community of interest was also respected in the Bodine I and Bodine VIII cases. Id. at 144.

Justice Pashman summed up by asserting that the majority's preference for "a mere equal nose count . . . may have been the law two years ago, but recent United States Supreme Court developments are contrary." Id. at 148. Thus, he asserted that the Commission was "obligated to conform to as many county lines as practical and not haphazardly create districts as they presently have, involving excessive county fragmentation." Ibid. He recognized that "the overriding federal rule" of one person, one vote, but concluded that

abiding by as many county lines as practical will not substantially emasculate this doctrine. There will inevitably be some county fragmentation among the 40 Senate districts, but merely because some county fragmentation is an unavoidable consequence does not mean that the entire concept of the county unit as a recognized and viable political subdivision must be discarded.

[Ibid.]

Justice Pashman further concluded that the plan presented had violated the constitutional mandate requiring compactness of districts. Id. at 149-51. He would have remanded to the Commission for it to draw up "a number of alternative plans indicating how many districts can be placed within and along county lines and at what deviations, utilizing all of the aforementioned criteria" and for the Commission to prepare a "statement [as to] which plan or plans it would recommend for adoption." Id. at 151.

Most recently, in McNeil v. Legislative Apportionment Commission of the State of New Jersey, 177 N.J. 364 (2003), cert. denied, 540 U.S. 1107, 124 S. Ct. 1068, 157 L. Ed. 2d 893 (2004), a divided Court addressed the State Constitution's boundary requirement for the State's two largest municipalities, Newark and Jersey City. That provision is not at issue in the present appeal, but the McNeil discussion touches upon the county-line issue involved here. The McNeil majority concluded that the constitutional provision requiring those large municipalities be divided into only two districts could not be "validly enforced . . . without violating the Supremacy Clause." Id. at 371. The Court recounted the State's history of redistricting cases, and wrote that because of the Supremacy Clause, U.S. Const. art. VI, cl. 2, our State's laws regarding apportionment are subject to federal laws, including the VRA, which became effective in August 1965 and prohibits the "'denial or abridgment of the right of any citizen of the United States to vote on account of race or color[.]'" Id. at 381 (quoting 42 U.S.C.A. 1973(a)). The McNeil Court upheld the Commission's view that creating only two districts each in Newark and Jersey City, after a long history of three districts each, would constitute "packing" in violation of Section 2 of the VRA. Id. at 384.

Two of the dissenting Justices would have remanded the McNeil matter for creation of a more complete record. Id. at 400-01 (Verniero and Albin, JJ., dissenting). The third dissenter, Justice LaVecchia, wrote as to Article IV, Section 2, paragraph 3 of the New Jersey Constitution: "I disagree with the Court's presumption of a prior invalidation of the state constitutional provision based on past decisions of this Court. I also disagree that the record supports the majority's conclusion that, in any event, Supremacy Clause concerns require our constitutional provision to be declared unenforceable in this instance." Id. at 401 (LaVecchia, J., dissenting). Justice LaVecchia further agreed with this court's conclusion that

the constitutional provision at issue remains operable, and need only give way in the face of superior federal voting-rights principles. In other words, every legislative apportionment initiative should begin with our Constitution and if our Constitution can be adhered to consistent with federal law, it should be. I do not subscribe to the majority's conclusion that past departures from Article IV, 2, 3 effectively have rendered that provision a nullity. I interpret our prior cases as having been decided on their unique facts and not within the context of the present dispute.

[Id. at 403.]

Agreeing with the other dissenters that the record was incomplete, Justice LaVecchia would have remanded so that plaintiffs could meet their burden of presenting at least one plan that could meet the challenged constitutional provision, while still meeting federal constitutional and VRA concerns. Id. at 406. She noted that neither the trial court nor the Commission tested the viability of such a plan, having each presumed the constitutional provision had been abrogated. Ibid.

Since 1973, the United States Supreme Court has emphasized that the constitutionality of state legislative reapportionment schemes are not to be evaluated by the more stringent standards of Kirkpatrick, supra, and Wells, supra, which addressed equal protection challenges to congressional district reapportionment plans. Gaffney, supra, 412 U.S. at 741-42, 93 S. Ct. at 2325-26, 37 L. Ed. 2d at 305 (Connecticut General Assembly reapportionment plan); Mahan, supra, 410 U.S. at 324, 93 S. Ct. at 985, 35 L. Ed. 2d at 330 (Virginia General Assembly reapportionment plan). See also, Brown, supra, 462 U.S. at 850 n.2, 103 S. Ct. at 2700 n.2, 77 L. Ed. 2d at 226 n.2 (O'Connor, J., concurring). Moreover, in evaluating state legislative reapportionment plans, the United State Supreme Court has consistently recognized that maintenance of the integrity of political subdivisions, such as counties and cities, may support substantial and legitimate state concerns, and a plan which preserves political subdivision lines is not per se unconstitutional unless the policy emasculates the goal of substantial equality of representation. Brown, supra, 462 U.S. at 843, 103 S. Ct. at 2696, 77 L. Ed. 2d at 222; Mahan, supra, 410 U.S. at 321-22, 93 S. Ct. at 983-84, 35 L. Ed. 2d at 328-29; Reynolds, supra, 377 U.S. at 578, 84 S. Ct. at 1390, 12 L. Ed. 2d at 536-37.

Yet, this court is bound to "follow the dictates of the [New Jersey] Supreme Court . . . ." RSB Lab. Servs., Inc. v, BSI, Corp., 368 N.J. Super. 540, 560 (App. Div. 2004). Thus, this court is bound by the Scrimminger holding that, under the 1970 Census figures, counties "cannot constitute separate districts" and "[n]or are they suitable building blocks for the formation of meaningful districts." Scrimminger, supra, 60 N.J. at 487. This court is also bound by the holding in Davenport II, supra, 65 N.J. at 133, that "once the use of counties as building blocks was declared unenforceable, as it had to be under the demographic pattern shown by the 1970 census, the county concept ceased to have any viability in the creation of Senate districts." So, too, we must recognize that as late as 2004, the Supreme Court held that an attempt to limit Newark and Jersey City to two districts each would violate federal law. McNeill, supra, 177 N.J. at 371.

In light of this case law, 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 this 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. Indeed, plaintiffs' own People's Map submissions do not meet that standard. Both of their maps still contained numerous county line breaches, three in the People's Map I and six in the updated People's Map II, presumably the version they would have expected the Commission to focus on in its final deliberations. Granted, six county line breaches are significantly fewer than the thirty-one in the approved map, however, 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.

On the record before the court, it does not appear that plaintiffs ever directly compared the 2010 county population census data with the population distributions of 1970 as set out in the Scrimminger opinion. Plaintiffs' failure to do so is sufficient to support the trial court's view that they failed to state a cause of action to challenge the Commission's approach on this issue. Interestingly, 2010 county census population figures contained in the record show no obvious differences from the array the Scrimminger Court had viewed. Formatted as in Scrimminger, the statewide population for 2010 by county is as follows:

Cape May

97,265

Burlington

448,734

Salem

66,083

Morris

492,276

Hunterdon

128,349

Camden

513,657

Warren

108,692

Passaic

501,226

Sussex

149,265

Monmouth

630,380

Cumberland

156,898

Union

536,499

Gloucester

288,288

Middlesex

809,858

Atlantic

274,549

Hudson

634,266

Somerset

323,444

Bergen

905,116

Ocean

576,567

Essex

783,969

Mercer

366,513

One-fortieth of the statewide population for 2010 was 219,797. This array demonstrates there are still "21 counties with substantial differences in population," which led the Court in Scrimminger to believe that the counties could not constitute separate districts nor form "suitable building blocks" for districting. Scrimminger, supra, 60 N.J. at 487. In light of the unequivocal holding in Scrimminger, to which this court is bound, we conclude the arguments advanced by plaintiffs and McManus fail to state a basis to reject the map adopted by the Commission. Accordingly, the trial judge properly dismissed the complaint for failure to set forth a claim for relief.

II.

Plaintiffs contend Judge Feinberg erred by failing to find that the approved map violates the Fourteenth Amendment of the United States Constitution. They assert that the Commission defendants violated the one-person, one-vote requirement of the Fourteenth Amendment by engaging in political and partisan gerrymandering aimed at maintaining control by the Democratic Party, thereby disenfranchising the State's millions of Republican voters. They further criticized the approved map's preparation in secret meetings, with no public opportunity for comment on the final version before it was adopted. Moreover, the number of county over-splits and the creation of non-compact districts caused a violation of the Fourteenth Amendment, in addition to the State Constitution. Use of "continuity of representation" as a redistricting standard was further improper, because that standard is not required by the Constitution, and works against standards that encourage a "reasonable possibility of [a] viable contest" between the parties. Lack of viable contests in competitive districts can lead to representatives that fail to work diligently on behalf of the people, and to voter apathy. Contrary to Rosenthal's view, plaintiffs assert, New Jersey is not a Democratic state, but a two-party state, which the map should reflect.

Judge Feinberg discussed these arguments in some detail, finding no violation of the United States Constitution. The judge noted that the United States Supreme Court in Reynolds made clear that the United States Constitution protects not only an eligible citizen's right to vote, but also the citizen's right to have that vote counted. Quoting Reynolds, supra, 377 U.S. at 568, 84 S. Ct. at 1385, 12 L. Ed. 2d at 531, she further held that "an individual's right to vote for state legislators is unconstitutionally impaired when its weight is in [a] substantial fashion diluted when compared with votes of citizens living in other parts of the State." Judge Feinberg described plaintiffs' claim that the map diluted votes of residents in New Jersey's southern districts, but the judge found that claim meritless. The judge explained:

First, plaintiffs' calculation for the population deviation is flawed. They claim districts 1-13 and 30, which are 12 of the 14 total southern districts, are overpopulated by an aggregate total of 40,648, or 18.48% of the ideal population for a single district. (See Compl. 119-21.) The proper analysis, however, requires one to determine the population deviation from the ideal mean for each district. Engaging in that analysis, it is clear that no district on the Map deviates from the ideal mean by more than 2.66%. Thus, the Map's total deviation, derived by finding the difference between the most and least populous districts, is approximately 5.2%. That overall population deviation for this Map is one of the lowest in decades. In addition, the Map has an average deviation14 of 1.55% for the entire Map and 1.59% for all fourteen southern districts (1-13 and 30).

________

14The average deviation is the average percentage deviation for all the districts.

The judge further explained the error of plaintiffs' approach:

Plaintiffs applied the aggregate total overpopulation of the southern districts of 40,648 and divided it by the number [for] the population for a single district. Quite simply, the formula is mathematically incorrect. The proper formula is to divide 40,648 by the total population of the entire southern half of the state (all 14 southern districts), which is 3,077,158. That formula yields an aggregate population deviation for the southern districts of 1.3%.

Also, the judge noted that plaintiffs' calculation erroneously used the aggregate population deviation based on only twelve of the fourteen southern districts. "If plaintiffs' calculation included districts 14 and 15, instead of looking only at districts 1-13 and 30, it would have had almost the exact same deviation as that yielded by the Commission's Map for those southern districts."

Moreover, Judge Feinberg found the complaint states that of the State's forty districts, twenty are overpopulated and twenty are underpopulated, with twelve of the overpopulated districts in the southern part of the State and eight in the north. The Constitution did not require that overpopulated districts be allocated evenly between the northern and southern parts of the State, and a twelve-to-eight split was "near-perfect," so the court found that "[t]his claimed over-packing is not evidence of rampant disparate treatment between the north and south as plaintiffs allege."

Judge Feinberg noted further that the United States Constitution does not require absolute population equality, and permits minor deviations, generally referring to deviations under ten percent, when needed to effectuate a rational state policy. Within that framework the court found "presumptively constitutional" the following 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":

(1) 1.3 percent total deviation for all of the districts in the south combined; (2) 2.66% deviation from the ideal mean for any single district on the Map; (3) 5.2% total population deviation [(]the difference between the most and least populous districts); and (4) 1.55% average deviation for the entire Map and 1.59% average deviation for the fourteen southern districts.

Further, even if the approved map had deviations that were not "minor," the judge noted that plaintiffs would need to show "that such deviation was caused by 'impermissible considerations,' as opposed to other legitimate redistricting goals" (quoting Rodriguez v. Pataki, 308 F. Supp. 2d 346, 368 (S.D.N.Y.), aff'd, 543 U.S. 997, 125 S. Ct. 627, 160 L. Ed. 2d 454 (2004)). Noting that the redistricting factors Rosenthal referenced in his comments were all permissive factors held valid by the courts, the trial court found that "plaintiffs have not, and cannot, demonstrate that the claimed deviations were caused by impermissible redistricting considerations."

"For similar reasons," Judge Feinberg found that plaintiffs had "likewise failed to set forth sufficient facts to support an Equal Protection claim." The judge wrote:

To the extent plaintiffs attempt to raise an Equal Protection argument in tandem with their voter dilution claim vis- -vis the southern districts disadvantaged to the benefit of the northern districts, the court notes that the southern districts encompass a huge and diverse geographic area, from the border with Philadelphia to Atlantic City and Cape May. This overall region includes large urban areas such as Camden, rural areas such as Hammonton, and suburban areas. It also includes Democrats, Republicans, third-party voters, and unaffiliated voters. It includes a variety of socioeconomic classes and races. Plaintiffs have not alleged sufficient facts to demonstrate there is any type of invidious discrimination to disadvantage this group of communities in the southern portion of the State relative to others such that would offend Equal Protection principles.

The judge also distinguished Larios v. Cox, 300 F. Supp. 2d 1320 (N.D. Ga.), aff'd, 542 U.S. 947, 124 S. Ct. 2806, 159 L. Ed. 2d 831 (2004), in which a three-judge District Court panel struck down a state redistricting plan that had a total population deviation of 9.98 percent. Defendants in the present matter represented, and plaintiffs did not dispute, that Larios was the only case that deemed unconstitutional a map that contained a total population deviation of under ten percent. The trial court explained, however, that the Larios court "did not strike down the redistricting plan as unconstitutional based on the population deviation percentage alone. Rather, there were various factors it looked at which demonstrated 'deliberate and systematic regional' bias," favoring rural and inner-city interests and disfavoring suburban areas (quoting Larios, supra, 300 F. Supp. 2d at 1327, 1341-42). Larios was distinguishable, therefore, not just because the 5.2% deviation in the approved map was far less than the 9.98% deviation in Larios, but also because the present situation lacked any evidence of "deliberate and systematic" overpopulating of districts for partisan gain or, as was present in Larios, racial discrimination. Additionally, unlike the Larios situation, the approved map was more compact, more contiguous, and characterized by a lower population deviation than its predecessors.

Judge Feinberg also rejected plaintiffs' arguments that "political gerrymandering" violated the one person, one-vote standard and plaintiffs' constitutional right to exercise the franchise. The court cited Gaffney, supra, 412 U.S. at 752-53, 93 S. Ct. at 2331, 37 L. Ed. 2d at 312, in which the United States Supreme Court expressly held that bipartisan gerrymandering did not violate the Constitution, because "[t]he reality is that districting inevitably has and is intended to have substantial political consequences" such as efforts to strengthen the two-party system. The Gaffney redistricting plan was "admittedly drawn with the intent to create a districting plan that would retain the political strongholds of the Democrat and Republican parties." (citing id. at 752, 93 S. Ct. at 2331, 37 L. Ed. 2d at 311). The judge viewed the Gaffney decision as one that "logically follows upon analysis of the establishment and function of the Commission," in view of the New Jersey Constitution's "formation of a redistricting commission in recognition of the traditional two-party system[.]" The court observed that in Timmons v. Twin Cities Area New Party, 520 U.S. 351, 367, 117 S. Ct. 1364, 1374, 137 L. Ed. 2d 589, 603-04 (1997), a case addressing a state statute that prohibited candidates from running on behalf of multiple parties for a single election, the Court held that laws that promote the two-party structure are not unconstitutional.

The trial court here noted that "Commission membership is not limited to any political party," but rather the membership is selected by "the chairman of the State committee of each of the two political parties whose candidates for Governor receive the largest number of votes at the most recent gubernatorial election." (quoting N.J. Const., art. IV, 3, 1). The court explained:

Thus, the establishment of the Commission is premised on an expression of the people's will, as manifested through their vote for gubernatorial candidates in the election immediately prior to the redistricting. The people's will can then be manifested by the setting of bipartisan gerrymandering as long as the Map ultimately approved otherwise complies with the U.S. and New Jersey Constitutions.

In other words, it is almost implicit in the structure of the Commission that whichever parties are the highest vote-earners in the gubernatorial election, are entitled to benefit from that expression of the people's will, and will draw district lines that roughly approximate the strongholds of those two political parties, thereby echoing the people's will. The allegation that the two major parties cooperated to create districts for mutual partisan gain does not amount to a constitutional violation. See Cummings, 412 U.S. at 752-53. Thus, bipartisan gerrymandering does not violate the Constitution. Ibid.

The trial court further considered, and also rejected, plaintiffs' claim that "partisan gerrymandering" also was a constitutional violation:

Just as plaintiffs' bipartisan gerrymandering claim is without merit, plaintiffs fail to allege sufficient facts to sustain a cognizable legal cause of action for partisan gerrymandering. As explained above, there is nothing unconstitutional about apportioning legislative districts with an eye toward political considerations, because redistricting is at its core, a political process.

The court found that no constitutional infirmity arose from "the mere fact that a particular apportionment scheme makes it more difficult for a particular group . . . to elect the representatives of its choice . . . ." (quoting Davis v. Bandemer, 478 U.S. 109, 131, 106 S. Ct. 2797, 2810, 92 L. Ed. 2d 85, 105 (1986)). The court continued:

In the case at bar, plaintiffs do not allege that political classifications were applied in an invidious manner by the Commission. Rather, they rely on unfounded and/or erroneous statistics to try to show the northern legislative districts were favored to the disadvantage [of] the southern districts, and that somehow that alone is sufficient evidence of geographic and/or intentional invidious discrimination and partisan gerrymandering. Quite simply, the facts alleged do not support such a claim.

Moreover, the Commission itself is created to ensure equal representation of the leading two political groups in New Jersey, as reflected in the most recent gubernatorial election. Given the results of that election, the Commission contained five Democrats and five Republicans, with an independent eleventh member appointed to help the party factions resolve any impasse in reapportioning the legislative districts. That composition was specifically designed by the framers of the New Jersey Constitution to ensure that the party in control of the Legislature could not act in an invidious manner.

For all of these reasons, the trial court found no violation of the Federal Constitution.

We find persuasive the thorough treatment of this issue by the trial court. 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 submissions from the Bayshore Group were encouraged and displayed, so presumably considered. The Davenport II Court recognized that this is "primarily a political and legislative process" which "inevitably has and is intended to have substantial political consequences," and further that "[p]roviding protection of incumbents serves a valid purpose and is a relevant factor to be taken into account in creating a legislative districting plan." Davenport II, supra, 65 N.J. at 134-35. As Rosenthal explained it, his "continuity of representation" standard was aimed not at protecting the elected representatives, but rather to avoid unnecessary disruption to the people represented.

We cannot fully subscribe to Judge Feinberg's discussion of the allocation of overpopulated districts, and her description of a twelve-to-eight split as "near perfect." Nevertheless, 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 twelve-to-eight ratio is not so overwhelming as to suggest that impermissible redistricting considerations were applied.

In sum, plaintiffs have not articulated any way in which the process or its results violated their rights under the Federal Constitution.

III.

Plaintiffs contend the approved map violates Article I, Paragraph 2(a), of the New Jersey Constitution, which aims to protect the rights of the people through the political system. Plaintiffs allege the approved map undermines this protection with a lack of competitive districts. Plaintiffs contend this flaw can lead to voter apathy when one's vote is rendered meaningless and voters believe that "[t]he fix is in. The game is rigged." They contend selection of the Democratic Party's map, and the lack of compromise demonstrates the alleged unfairness.

Plaintiffs also assert the approved map also failed to capture the population shifts that have occurred in New Jersey away from the Democratic Party strongholds in the northeastern part of the State, and toward Republican regions in the northwestern and southern regions of the State.

Judge Feinberg rejected these arguments. In her opinion, she stated:

As defendants correctly point out, Article 1, Paragraph 2a was adopted in 1844 and is purely an affirmation of the basic democratic principle that the people retain the right to change their form of government by constitutional amendment. [Bodine I, supra, 43 N.J. at 469-71].

This provision sets forth fundamental principles of government substantially similar to those expressed in the Declaration of Independence. Such principles were intended to establish a limitation upon the capacity of the sovereign and to make clear that the people are the master, and the sovereign the servant. Franklin v. N.J. Dept. of Human Services, 225 N.J. Super. 504, 523-24 (App. Div.) (quotations omitted), aff'd, 111 N.J. 1 (1988). Article I, Paragraph 2a was not intended to confer any constitutional rights upon individuals, and was especially not meant to provide a private cause of action for voters who are displeased with the reigning political tides in this country at any given time. See id. . . . at 523.

Thus, even assuming arguendo, plaintiffs have a claim that defendants disregarded Constitutional redistricting criteria and intentionally and systematically gerrymandered for partisan organizational gain, Article I, Paragraph 2a does not provide plaintiffs with an independent private cause of action to redress that harm.

We agree.

Article 1, Paragraph 2(a), provides:

All political power is inherent in the people. Government is instituted for the protection, security, and benefit of the people, and they have the right at all times to alter or reform the same, whenever the public good may require it.

Article 1, paragraph 2(b), provides for recall elections.

This constitutional provision was analyzed in Franklin, supra, 225 N.J. Super. at 507-11, a case in which the appellants were persons receiving emergency shelter assistance from the State, and they sought to invalidate an administrative rule that limited such assistance to a maximum duration of five months. Among other arguments, the appellants contended that the time limitation on emergency shelter assistance violated Article I, paragraphs 1 and 2, of the New Jersey Constitution. Id. at 522. The court rejected the argument, finding that the provisions created no affirmative obligation on state government to provide necessities of life such as shelter. Ibid. The Franklin court found:

These principles of democratic government, rooted in eighteenth century political philosophy, are fundamentally different from any concept of a governmental obligation to provide social services. . . . Article I, paragraph 2, articulates the basic democratic principle that the purpose of government is to serve the people and that the people therefore have the right to change the form of government, but this provision does not impose an affirmative obligation on government to furnish the necessities of life to its citizens.

[Id. at 524.]

Although Judge Pressler suggested in her dissent that the provision, together with parens patriae considerations, could support the appellants' arguments, the majority opinion rejected that approach, forcefully stating: "Article 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." Id. at 527, n.13 (citations omitted).

On the appeal as of right, the Supreme Court affirmed. 111 N.J. at 20. The Court noted that it usually would refrain from adjudicating a matter "when the ultimate resolution of important statutory and constitutional issues turned on complex factual considerations not fully developed in the record." Id. at 17. It therefore wrote: "Hence, we do not reach the constitutional issues addressed by the court below except to note that even were we to find such an obligation, we would generally hold that the Legislature has broad discretion in determining how best to 'vindicate . . . a constitutional obligation.'" Ibid. (quoting Hills Dev. Co. v. Twp. of Bernards, 103 N.J. 1, 21 (1986)).

Accordingly, plaintiffs have no basis to assert individual rights under Article 1, Paragraph 2(a), that would support their claim.

Affirmed.

1 Substituted pursuant to Rule 4:34-4.

2 We have consolidated these appeals for the purpose of opinion.

3 Filed initially in Ocean County, the matter was transferred to Mercer County. Plaintiffs filed an amended order to show cause and a new ten-count complaint in Mercer County with no evident substantive changes.

4 Attached as Appendix II.

5 Attached as Appendix III.

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