In the Matter of Establishment of Congressional Districts by the New Jersey Redistricting Commission

SUPREME COURT OF NEW JERSEY
                                           R-
3 September Term 2021
                                                   086587

In the Matter of Establishment
of Congressional Districts by
the New Jersey Redistricting
Commission,

Douglas Steinhardt, in his official
capacity as Delegation Chair and Member of
the New Jersey Redistricting Commission,
Michele Albano, in her official capacity
as Member of the New Jersey Redistricting
Commission, Jeanne Ashmore, in her
official capacity as Member of the New Jersey
Redistricting Commission, Mark
Duffy, in his official capacity as Member of
the New Jersey Redistricting Commission,
Mark LoGrippo, in his official capacity
as Member of the New Jersey Redistricting
Commission, and Lynda Pagliughi, in
her official capacity as Member of the New
Jersey Redistricting Commission,
    Plaintiffs,
       v.
New Jersey Redistricting
Commission, John E. Wallace, Jr., in
his official capacity as Chair and Member of
the New Jersey Redistricting Commission,
Janice Fuller, in her official capacity as
Delegation Chairwoman and Member of the
New Jersey Redistricting Commission, Iris
Delgado, in her official capacity as
Member of the New Jersey Redistricting
Commission, Vin Gopal, in his official
capacity as Member of the New Jersey
Redistricting Commission, Stephanie
Lagos, in her official capacity as Member
of the New Jersey Redistricting Commission,
Jeff Nash, in his official capacity as
Member of the New Jersey Redistricting
Commission, Dana Redd, in her official
capacity as Member of the New Jersey
Redistricting Commission, and Tahesha
Way, in her official capacity as New Jersey
Secretary of State,
      Defendants.


      1. This matter involves a legal challenge to the congressional

redistricting map selected by the New Jersey Congressional Redistricting

Commission (Commission).

Selection of Commission members and redistricting process

      2. The State’s political leaders appoint the members of the Commission.

Under the State Constitution, the following individuals each appoint two

members: the President of the Senate and Speaker of the Assembly; the

minority leaders of the Senate and Assembly; and the chairs of the State

committees of the political parties whose candidates received the largest or

next largest number of votes in the most recent election for Governor. N.J.

Const. art. II, § 2, ¶ 1(b). As a result, the Commission is initially comprised of

six individuals affiliated with the Democratic Party and six who are affiliated

with the Republican Party.

      3. The Constitution also provides for an independent thirteenth member.

Id. ¶ 1(c). Because the original twelve members were unable to agree on a

                                        2
proposed tiebreaker by a majority vote, each delegation submitted one name to

the Court. From those names, the Court had to select the thirteenth member, in

accordance with the Constitution. Ibid.

      4. The Constitution sets forth two qualifications for the independent

member: the individual must have been a New Jersey resident for the past five

years and, during that period, “shall not . . . have held public or party office in

this State.” Ibid. The Constitution also provides a standard for the selection

of the independent member. It calls upon the Court to select, by a majority

vote, the person “more qualified by education and occupational experience, by

prior public service in government or otherwise, and by demonstrated ability to

represent the best interest of the people of this State.” Ibid. From the two

names presented, the Court selected the Honorable John E. Wallace, Jr. (ret.),

to serve as the independent member. Neither party objected to his selection.

The independent member serves as Chair of the Commission. Id. ¶ 2.

      5. The Commission must hold at least three public hearings. Id. ¶ 4. In

this case, it held ten hearings, virtually and in-person, at which it heard

testimony from the public. The Commission also received written submissions

and draft maps from the public.

      6. The process that follows is intensely political, not legal, which

reflects the makeup of the Commission and the nature of its work. The

                                         3
Commission is essentially a political body, comprised mostly of partisan

appointees, that fixes boundaries for election districts. See Gaffney v.

Cummings,  412 U.S. 735, 753 (1973) (“Politics and political considerations

are inseparable from districting and apportionment.”).

      7. Historically, after meeting in private with the respective partisan

delegations to discuss their proposals, the independent member serves as the

tiebreaker and selects one party’s preferred map. The outcome commonly

garners praise from one party and criticism from the other. This redistricting

cycle was no different.

      8. On December 22, 2021, a majority of the Commission’s members

that included the Chair voted in favor of the map the Democratic delegation

presented. Plaintiffs, the Republican delegation to the Commission, filed an

amended complaint on January 5, 2022 to challenge that map. Plaintiffs filed

their complaint directly with this Court, pursuant to Article II, Section 2,

Paragraph 7 of the Constitution.

Plaintiffs’ challenge

      9. Plaintiffs ask the Court to vacate the Commission’s decision and

remand the matter to the Commission for further proceedings, with the Chair,

Justice Wallace, recused. Defendants, the Democratic delegation to the

Commission, filed a motion to dismiss the amended complaint. Among other

                                        4
arguments, defendants assert that the amended complaint fails to state a claim

upon which relief can be granted.

      10. Plaintiffs’ arguments rest to a large extent on the rationale offered

by the Chair to explain his vote in support of the Democratic delegation’s map.

The Chair provided reasons for his vote at the Commission’s final meeting on

December 22, 2021. He also amplified his reasoning in writing, on January

11, 2022, in response to a request from the Court.

      11. This Court has no role in the outcome of the redistricting process

unless the map is “unlawful.” N.J. Const. art. II, § 2, ¶¶ 7, 9. If it is, the

Commission must reassemble and adopt another redistricting plan. Id. ¶ 9.

Legal standard

      12. In 1974, before the current constitutional process was adopted, the

Court noted that reapportionment plans “must be accorded a presumption of

legality with judicial intervention warranted only if some positive showing of

invidious discrimination or other constitutional deficiency is made. The

judiciary is not justified in striking down a plan, otherwise valid, because a

'better’ one, in its opinion, could be drawn.” Davenport v. Apportionment

Comm’n,  65 N.J. 125, 135 (1974) (citing Gaffney).




                                         5
      13. That stringent standard still applies. It is not the Court’s task to

decide whether one map is fairer or better than another.1 We review

redistricting plans only to determine if the map selected is “unlawful.” N.J.

Const. art. II, § 2, ¶ 9. So long as the final map is constitutional, the Court

cannot grant any relief.

      14. Plaintiffs claim the actions of the Chair were “arbitrary, capricious,

and unreasonable,” presented violations of “federal and state constitutional

equal protection and due process protections,” and posed a “common law

conflict of interest.” Am. Compl. ¶¶ 7, 8, 101. The complaint also asserts

there were “significant differences between the maps” and sets forth ways in

which the Republican delegation’s map better met the standards the Chair had

applied. Id. ¶¶ 49-56. Plaintiffs’ complaint, however, does not assert that the

map the Commission adopted -- which the Democratic delegation and the

Chair voted for -- was itself “unlawful.”




1
  Only if neither map receives seven votes from the members of the
Commission does the Supreme Court choose between two competing maps.
N.J. Const. art. II, § 2, ¶ 3. In that case, the Court must select the map that
“conforms most closely to the requirements of the Constitution and laws of the
United States.” Ibid.

                                         6
Threshold arguments

      15. Defendants contend that plaintiffs -- the Republican members of the

Commission who brought suit in their official capacity -- lack standing

because they have no “personal stake” and have not alleged a “personal

injury.” Instead, defendants contend plaintiffs have only an institutional

interest that does not afford them standing any more than it would the minority

side of a legislative body that lost a vote on an ordinance or bill.

      16. Our jurisprudence takes a more liberal approach to standing than

federal law. See In re Camden County,  170 N.J. 439, 448 (2002); see also Jen

Elec., Inc. v. County of Essex,  197 N.J. 627, 645 (2009). The State

Constitution does not limit “our judicial power to actual cases and

controversies.” Camden County,  170 N.J. at 448 (quoting Crescent Park

Tenants Ass’n v. Realty Equities Corp. of N.Y.,  58 N.J. 98, 107-08 (1971)).

At the same time, courts do not render advisory opinions or “entertain . . .

plaintiffs who are 'mere intermeddlers,’ or are merely interlopers or strangers

to the dispute.” Id. at 449 (omission in original) (quoting Crescent Park,  58 N.J. at 107).

      17. To possess standing in state court, a party must have “a sufficient

stake in the outcome of the litigation” and “real adverseness,” and there must

be “a substantial likelihood that the party will suffer harm in the event of an

                                         7
unfavorable decision.” Camden County,  170 N.J. at 449; Jen Elec., Inc.,  197 N.J. at 645. We also give weight to the public’s interest in the resolution of a

matter and favor a just ruling on the merits over “procedural frustrations.” 2

Crescent Park,  58 N.J. at 107-08; see also Pressler & Verniero, Current N.J.

Court Rules, cmt. 2.1 on R. 4:26-1 (2022).

      18. Plaintiffs have a strong stake in the outcome of the redistricting

process and are plainly adverse to the map adopted. Their assertion of

personal harm as members of the delegation is less strong, but the overriding

public interest in this case is compelling. Resolving the map for congressional

districts for the next decade is of the utmost importance. Doing so

expeditiously, in time for candidates and election officials to plan for the

upcoming primary and general elections, is also significant to the public. We

therefore consider the merits.




2
  Here, for example, the complaint could be amended, or possibly refiled, with
plaintiffs or others listed as residents of New Jersey and not just in an official
capacity. See R. 4:9-1 (noting that pleadings may be amended as a matter of
right and “by leave of court which shall be freely given in the interest of
justice”); cf. Brady v. N.J. Redistricting Comm’n,  131 N.J. 594, 605 (1992)
(addressing congressional redistricting challenges brought by residents and
taxpayers). If the complaint were amended in that way, there would be no
prejudice to defendants. See Notte v. Merchs. Mut. Ins. Co.,  185 N.J. 490, 501
(2006).

                                        8
      19. Defendants raise an additional threshold argument that the

complaint must be dismissed because it presents a nonjusticiable political

question. That issue “is primarily a function of the separation of powers.”

Gilbert v. Gladden,  87 N.J. 275, 281 (1981) (quoting Baker v. Carr,  369 U.S. 186, 210 (1962)). To determine whether an issue poses a nonjusticiable

political question, courts consider, among other factors, if there is “a textually

demonstrable constitutional commitment of the issue to a coordinate political

department.” Id. at 282 (quoting Baker,  369 U.S. at 217). Here, the

Constitution grants the Supreme Court “jurisdiction over any judicial

proceeding challenging . . . any action, including the establishment of

Congressional districts, by the commission.” N.J. Const. art. II, § 2, ¶ 7. The

Court’s narrow role in that regard -- limited to challenges over whether a map

is unlawful -- avoids political questions that could be raised by a review of the

Commission’s decisions.

      20. Plaintiffs raise a threshold argument as well and contend that the

Chair’s amplified statement of reasons cannot be considered because it violates

the State Constitution’s public meeting requirement and analogous principles

in the Open Public Meetings Act (OPMA),  N.J.S.A. 10:4-6 to -21. To repeat,

on January 4, 2022, the Court requested an amplified statement of reasons to

assist in its review of this matter. By analogy to Rule 2:5-1(b), which allows a

                                         9
trial judge or agency head to submit “an amplification of a prior statement ,

opinion or memorandum” when an appeal is taken, the Court asked the Chair

to amplify the grounds for his oral decision on December 22, 2021. The Chair

presented a written statement to the Court and the parties on January 11, 2022,

and it was posted on the Judiciary’s website the same day. Response to Order

of Jan. 4, 2022, https://www.njcourts.gov/courts/assets/supreme/

ResponseCongressional1-21.pdf?c=avq.

      21. In light of the challenges plaintiffs assert and the limited nature of

our review of the Commission’s work, we do not rely on the Chair’s amplified

statement. Plaintiffs’ argument is therefore moot. 3


3
  We note that the Constitution’s meeting requirement does not apply to the
Chair’s supplemental statement. The Constitution directs that the Commission
“certify the establishment of [congressional] districts pursuant to a majority
vote of the full authorized membership of the commission convened in open
public meeting, of which meeting there shall be at least 24 hours’ public
notice.” N.J. Const. art. II, § 2, ¶ 3 (emphasis added). As noted earlier, the
Constitution also requires the Commission to “hold at least three public
hearings in different parts of the State.” Id. ¶ 4. Except for those two types of
proceedings -- the requisite public hearings and the meeting to certify the
establishment of districts -- meetings of the Commission “may be closed to the
public.” Id. ¶ 5.

      The meeting to certify congressional districts took place on December
22, 2021, when the full Commission voted on and adopted a map, at an open
public meeting. The Chair’s supplemental statement did not certify a
congressional map, which no single member could have accomplished.

     Furthermore, OPMA does not apply to the work of the Commission.
Nor does the statute apply to the State’s legislative redistricting process.
                                        10
Statements and findings by the Chair

      22. Here, the Chair concluded that both maps were constitutional. On

December 22, 2021, he first orally outlined certain factors that guided his

determination: that “congressional districts . . . shall be geographically

contiguous” and account for each district’s total population; that “[m]apmakers

shall comply with the Voting Rights Act” and other relevant authority, and

“should include sufficient numbers of minority/majority districts”; that maps

“shall not split political subdivision boundaries and communities of interest

unless necessary” to comply with the above standards; that “[c]ompetitive

districts are favored”; that “[n]o district may be formed solely to favor or

disfavor any political party or the election of any person” (which the Chair

described as “partisan fairness”); that “districts may include the cores of

existing districts” “[to] assist voters in assessing incumbents and minimizing

voter confusion”; and that “[a]ll districts shall be as compact and regularly

shaped as possible unless deviation is required to comply with any of the




 N.J.S.A. 10:4-8(a). The public meeting requirements for the Commission are
spelled out in the Constitution. Under the Commission’s by-laws, notice for
required public meetings shall be given in accordance with the Constitution
and OPMA, “notwithstanding the OPMA’s inapplicability to the Commission.”
See Redistricting Commission By-Laws art. IV, ¶ 6. The Chair’s submission
of a supplemental statement was not a required public hearing or a meeting to
certify the establishment of districts under the Constitution.
                                         11
above standards.” Plaintiffs’ complaint does not challenge the map for any of

those reasons.

      23. The Chair then found that both maps satisfied the above standards

with one exception: “The only area where one map pulled ahead of the other

is in partisan fairness.” As the Chair explained,

                  Both maps were evaluated by my team using
            various statewide tests for partisan fairness. Without
            getting into the details of the tests, I simply state that
            the results showed that the partisan fairness would
            favor the Democratic[] map. However, because neither
            delegation used these tests, I have decided not to give
            any weight to them in making my decision.

The Chair next added,

                   In summary, both delegations aptly applied our
            standards to their map. In the end, I decided to vote for
            the Democratic map, simply because in the last
            redistricting map it was drawn by the Republicans.

                  Thus, I conclude that fairness dictates that the
            Democrats have the opportunity to have their map used
            for this next redistricting cycle. Thank you. That
            concludes my comments.

We do not rely on the above statement to resolve plaintiff’s claims, which do

not challenge the constitutionality of the map.

      24. In an amplified statement of reasons on January 11, 2022, the Chair

reiterated his belief that both maps were constitutional and met the standards

he had previously outlined. Although we do not rely on the amplified

                                       12
statement, we include a part of it for completeness. The Chair stated “that the

Democrats’ map better satisfied the standard for Partisan Fairness.” In his

words,

                  Many tests for Partisan Fairness are accepted by
            the social science community. They fall into two broad
            categories, a category based on partisan symmetry and
            a category based on geography.

                  Tests of partisan symmetry have their roots in a
            simple and intuitive concept of fairness: what would
            happen if the tables were turned? Social scientists have
            overwhelmingly endorsed such a concept.              For
            example, in the ideal case, given the same statewide
            electoral totals, each side should win the same number
            of seats. Using such mathematical tests, my team
            determined that the Democratic plan shows superior
            partisan symmetry to the Republican plan.

                   The second category of test is to use the natural
            geography of the state. Modern technology allows
            hundreds of thousands of alternative plans to be drawn
            automatically, providing a way to determine what a
            “natural” outcome would be if plans were drawn in a
            party-blind manner generally following the required
            redistricting standards. Such an approach is called the
            ensemble comparison method, and is used by state
            courts to evaluate partisan gerrymandering claims. My
            team found that the Democratic plan is closer to the
            average of the ensemble than the Republican plan, and
            therefore is more “party-blind.”

      25. In addition, the Chair explained that had his team informed the

delegations that it would use the above tests to evaluate their maps, “I would

have stated that Standard 5 for Partisan Fairness tipped the scales in favor of

                                       13
the Democrats’ map.” The Chair added that, “[u]pon reflection, I realize I

mistakenly failed to consider . . . Partisan Fairness of the maps” and “should

have stated that the Democrats’ map better satisfied the standard. . . . I do that

at this time.”

Substantive challenges

      26. Reasonable people may differ with a tiebreaker’s evaluation of, and

support for, a particular plan, but that decision is not subject to review by the

Court unless the plan is unlawful or reflects invidious discrimination. N.J.

Const. art. II, § 2, ¶ 9; Davenport,  65 N.J. at 135. No count in the complaint,

however, asserts that the final map itself is unlawful or that it is the result of

invidious discrimination.

      27. Plaintiffs’ arguments instead center on the tiebreaker’s reasons in

support of his vote. In their complaint, plaintiffs assert the Commission’s

“adoption of the Democratic map . . . must be set aside . . . because its

adoption was based upon an arbitrary, capricious, and unreasonable vote and

reasoning by Chair Wallace.” Am. Compl. ¶ 77. Plaintiffs’ brief similarly

“challenges Chair Wallace’s arbitrary, capricious, and unreasonable decision

to select the Democratic map out of 'fairness’ because the Republicans 'won’

in the last redistricting cycle.” According to plaintiffs, the adoption of a map

based on the Chair’s manner of decision and his vote violated their federal and

                                         14
state procedural due process rights and constitutional due process protections.

We briefly address each claim in turn, starting with procedural due process.

      28. The due process clause of the Fourteenth Amendment states that no

“State [shall] deprive any person of life, liberty, or property, without due

process of law.” U.S. Const. amend. XIV, §1. Although the New Jersey

Constitution does not articulate a “right to due process,” Article I, Paragraph 1

has been interpreted to “protect[] 'values like those encompassed by the

principle[] of due process.’” Doe v. Poritz,  142 N.J. 1, 99 (1995) (second

alteration in original) (quoting Greenberg v. Kimmelman,  99 N.J. 552, 568

(1985)). “To examine a procedural due process claim, courts 'first assess

whether a liberty or property interest has been interfered with by the State, and

second, whether the procedures attendant upon that deprivation are

constitutionally sufficient.’” State v. Robinson,  229 N.J. 44, 75 (2017)

(quoting Doe,  142 N.J. at 99).

      29. Plaintiffs’ argument appears to rest on the use of the amplified

statement. They claim they lacked notice and an opportunity to be heard, and

that they were deprived of an opportunity to respond to the Chair’s “ultimate

reasons.” Because we do not rely on either statement, that argument is moot.

To the extent plaintiffs assert a broader claim, it does not allege how the plan

is unlawful. See N.J. Const. art. II, § 2, ¶ 9; Davenport,  65 N.J. at 135. For

                                        15
that reason alone, their argument fails. We note as well that, although

plaintiffs cite generally to the fundamental right to vote, they do not offer

persuasive authority that the State interfered with a liberty or property interest

through the manner in which the Chair explained his decision.

      30. Plaintiffs advance a related due process argument based on the

doctrine of fundamental fairness. The doctrine protects against “unjust and

arbitrary governmental action,” in particular, government procedures that

operate arbitrarily. State v. Njango,  247 N.J. 533, 548 (2021) (quoting Doe,

 142 N.J. at 108). Courts apply the doctrine sparingly -- “in those rare cases

where not to do so will subject the defendant to oppression, harassment, or

egregious deprivation.” Doe,  142 N.J. at 108 (quoting State v. Yoskowitz,  116 N.J. 679, 712 (1989) (Garibaldi, J., concurring and dissenting)).

      31. That argument, as well, does not purport to establish that the map is

unlawful. Plaintiffs’ claim therefore cannot prevail. See N.J. Const. art. II,

§ 2, ¶ 9; Davenport,  65 N.J. at 135. In addition, the Constitution does not

afford either partisan delegation a right to dispute or counter the independent

member’s decision. The vote marks the end of a political process. It follows

days of private meetings and discussions in a hotel, with one side and then the

other meeting with the Chair. Those discussions and their resolution are not




                                        16
subject to procedural rules or judicial review in precisely the manner that an

agency decision or a trial judge’s ruling would be.

      32. Plaintiffs also assert that the Court should apply the standard for

agency review to redistricting decisions, and that the Chair’s conclusion was

arbitrary, capricious, and unreasonable.

              (a) The traditional standard of review for actions of a public

agency is whether the action was “arbitrary, capricious, or unreasonable.”

Allstars Auto Grp., Inc. v. N.J. Motor Vehicle Comm’n,  234 N.J. 150, 157

(2018). Under that standard, reviewing courts consider

              (1) whether the agency’s action violates express or
              implied legislative policies, that is, did the agency
              follow the law;

              (2) whether the record contains substantial evidence to
              support the findings on which the agency based its
              action; and

              (3) whether in applying the legislative policies to the
              facts, the agency clearly erred in reaching a conclusion
              that could not reasonably have been made on a showing
              of the relevant factors.

              [Ibid. (quoting In re Stallworth,  208 N.J. 182, 194
              (2011)); see also In re Request to Modify Prison
              Sentences,  242 N.J. 357, 390 (2020).]

Courts also assess whether the agency’s action offends the Federal or State

Constitutions. In re Eastwick Coll. LPN-to-RN Bridge Program,  225 N.J. 533,

541 (2016).
                                        17
            (b) This challenge likewise fails because it, too, does not allege

how the redistricting plan is unlawful. See N.J. Const. art. II, § 2, ¶ 9;

Davenport,  65 N.J. at 135. The argument is therefore beyond the limited scope

of our review. We also note that the standard of review for an agency’s action

is not an ideal fit. There are no express or implied constitutional or legislative

policies to guide the Commission’s work. There is also no traditional record

to measure any findings against because the key work of the Commission takes

place behind closed doors with no record of its discussions.

      33. In addition, plaintiffs submit the adoption of a map based upon the

Chair’s reasons violated their substantive due process protections. Relying on

Winters v. Illinois State Board of Elections,  197 F. Supp. 2d 1110 (N.D. Ill.

2001), plaintiffs argue that the Chair’s vote and the adoption of the map did

not satisfy rational basis review. 4 Under that standard, a statute, typically,

must bear a “rational relationship to a legitimate government goal.” State in

Interest of C.K.,  233 N.J. 44, 73 (2018). The claim thus falls outside the



4
  In Winters, the district court assessed Illinois’ practice of having the
Secretary of State select the tiebreaker for congressional redistricting by
randomly drawing one of two names, of people from different political parties,
submitted by the State Supreme Court.  197 F. Supp. 2d   at 1112. The district
court upheld the practice because it was rationally related to a legitimate
government interest -- giving the parties an incentive to compromise to avoid
losing a random drawing. Id. at 1114-16.

                                        18
limited nature of our review of redistricting decisions. Plaintiffs’ argument

focuses on the Chair’s thought process but does not allege how the map suffers

from invidious discrimination or is otherwise unlawful. See N.J. Const. art. II,

§ 2, ¶ 9; Davenport,  65 N.J. at 135.5

      34. Plaintiffs submitted a second amended complaint on February 2,

2022. The newly amended complaint adds the Princeton Gerrymandering

Project (PGP) as a defendant. Second Am. Compl. ¶ 27. According to

plaintiffs, the group advised and provided independent analysis of the parties’

proposed redistricting maps to the Chair during the redistricting process and

breached an alleged promise of confidentiality by providing valuable feedback

to the Democratic delegation. Id. ¶¶ 119-21. At the same time, however,

plaintiffs acknowledge that during four days of discussions at a hotel in Cherry

Hill, “Chair Wallace provided feedback to the Republican delegation (and

presumably to the Democratic delegation as well), and the Republican

delegation made changes to its proposed map based upon the comments from

Chair Wallace.” Id. ¶ 39. Plaintiffs also allege that PGP is supported by

private donors who have contributed to Democratic officials and causes. Id. ¶¶




5
  Plaintiffs have not submitted argument in support of strict scrutiny review or
their equal protection claim, so we do not consider either issue further.

                                        19
115-18. Without citing a particular legal theory, plaintiffs assert judicial

intervention is required to respond to a “tainted” process.

      35. Like the allegations discussed above, plaintiffs’ additional claim

does not assert that the redistricting plan is unlawful or is the result of

invidious discrimination. See N.J. Const. art. II, § 2, ¶ 9; Davenport,  65 N.J. at
 135. The new argument, as well, falls outside the Court’s limited scope of

review in redistricting matters and therefore cannot prevail.

Common law conflict of interest claim

      36. For the first time, plaintiffs now contend the Chair had a conflict of

interest under the common law and should have recused himself because his

wife made a political contribution to a member of Congress from New Jersey

in 2021. Am. Compl. ¶ 102. That information is readily available to the

public; it appears on the Federal Election Commission’s (FEC’s) public

database of contributions to candidates and committees in federal elections.

Fed. Election Comm’n, Individual Contributions, https://www.fec.gov/data/

receipts/individual-contributions/?two_year_transaction_period=

2022&min_date=01%2F01%2F2021&max_date=12%2F31%2F2022. Because

plaintiffs either knew or reasonably should have known of the contribution,

they could have raised the argument earlier. Instead, they did not object to the

Chair’s participation until after he selected the other side’s map. On those

                                         20
facts, a strong argument can be made that plaintiffs waived their conflict

claim.

      37. As noted earlier, the Constitution sets forth specific qualifications

for the independent member: the individual must have been a New Jersey

resident for the last five years and cannot “have held public or party office” in

New Jersey during that time. N.J. Const. art. II, § 2, ¶ 1(c). Because the

Constitution specifies requirements for the tiebreaker, we do not look to the

common law, as plaintiffs request, to insert additional qualifications. Cf.

DCPP v. J.R.-R.,  248 N.J. 353, 373 (2021) (noting the Court has no authority

to import a doctrine from the common law into the Legislature’s statutory

scheme); Coleman v. Martinez,  247 N.J. 319, 365 (2021) (Albin, J., dissenting)

(“The common law persists in any field until occupied by the Legislature.”).

      38. The Constitution does not bar the selection of a person who has

contributed to a political campaign or a partisan political group, or whose

spouse has done so, as the independent member. See N.J. Const. art. II, § 2,

¶ 2. We therefore find no disqualifying conflict.

      39. Defendants also submitted FEC records about political contributions

that members of both partisan delegations made in the past two years. Nothing

about the current system prevents that either.




                                       21
      40. The Commission fixes the boundaries for our State’s congressional

districts, which remain in place for a decade. It is vital that the public have

confidence in the Commission’s important work. Questions of partisanship or

the appearance of partisanship can affect the public’s confidence, yet our

current system is designed to be overseen by twelve partisan members and a

thirteenth member whom the party delegations propose. Two highly respected

individuals were recommended for that role. But there are other ways to

conduct the redistricting process.

      41. A number of states, including California, Arizona, Michigan, and

Colorado, have created independent redistricting commissions that include

citizens with no party affiliation, in order to “increase the degree of separation

between map-drawers and partisan politics.” League of Women Voters of

Ohio, ___ N.E.3d ___, ___ (2022) (slip op. 2022-Ohio-65, ¶ 143) (O’Connor,

J., concurring) (citing Emily Rong Zhang, Bolstering Faith with Facts:

Supporting Independent Redistricting Commissions with Redistricting

Algorithms, 
109 Calif. L. Rev. 987, 990, 1000 (2021)). Chief Justice

O’Connor’s concurring opinion in League of Women Voters succinctly

outlines those models. Id. at ___ (slip op. ¶¶ 144-46). In general, partisan

actors and officials have a more limited role in selecting members of

independent redistricting commissions. See Bruce E. Cain, Redistricting

                                        22
Commissions: A Better Political Buffer?, 121 Yale L.J. 1808, 1818-19 (2012).

Some models also require that individuals who are unaffiliated with a political

party be part of redistricting commissions. Cal. Const. art. XXI, § 2, ¶ (c)(2)

(four out of fourteen members); Colo. Const. art. V, § 44.1, ¶¶ 8-10 (four out

of twelve members); Mich. Const. art. IV, § 6, ¶ 2 (five out of thirteen

members).

      42. The current redistricting process in New Jersey stems from an

amendment to the Constitution in 1995, N.J. Const. art. II, § 2, which followed

a statute enacted in 1992, L. 1991, c. 510 (expired 2001). To change the

system and distance it from partisan politics would require a proposed

constitutional amendment and voter approval. See N.J. Const. art. IX, ¶¶ 1, 4.

Those decisions can begin with grassroots efforts, see Zhang, 
109 Calif. L.

Rev. at 1001, or the political branches of government. In the end, the choice is

left to the people of our State.

Conclusion

      43. Because plaintiffs’ allegations are insufficient to support a claim

upon which relief can be granted, see R. 4:6-2(e), defendants’ motion to




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dismiss the complaint with prejudice is granted.

                                            For the Court



                                            Stuart Rabner
                                            Chief Justice

February 3, 2022

CHIEF JUSTICE RABNER; JUSTICES ALBIN, PATTERSON, and
SOLOMON; and JUDGE FUENTES (temporarily assigned), join in the
Order. JUSTICES FERNANDEZ-VINA and PIERRE-LOUIS did not
participate.




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