The New Jersey census data has arrived. Now the process of legislative redistricting can begin in earnest. If you have been following media reports about the process you may think that a number of decisions have already been made. Well, that’s what the 10 partisan commissioners would like you to think. Here’s my take on three items that the media has reported.
1. “The 11th member of the Commission will be Rutgers Professor Alan Rosenthal.” We don’t know that, although it has been reported as a foregone conclusion. The choice of this member is at the sole discretion of Chief Justice Stuart Rabner.
I have had the privilege of working with Professor Rosenthal and there are many reasons why he would be a good choice. He is undoubtedly the nation's foremost expert on state legislatures, and, importantly to this process, is fair-minded.
But there is also a reason why he would not be a good choice. Both political parties are desperate to have the Chief Justice pick him!
Here’s what we do know. Justice Rabner asked both parties to submit a list of potential candidates. The media has reported – repeatedly – that Rosenthal’s name appeared on both lists and therefore he is the likely 11th member. How did they get this supposedly confidential information? It did not come from the Chief Justice.
Both political parties decided to leak this information to the press. And then leak it again in case you missed it the first time. And then finally “admit” it in a public hearing. This has obviously been an attempt to make this choice a fait accompli.
Did any other names aside from Rosenthal’s appear on both lists? I doubt it. In fact, I wouldn’t be surprised if the Democrats and Republicans reached an agreement on this choice before submitting their “independent” lists to Justice Rabner.
At the end of the day, what both sides are most afraid of is the unknown. Alan Rosenthal is a known commodity who has the utmost respect for the job legislators do – “heavy lifting,” as he calls it in one of his books on the subject.
The ultimate irony would be if the 11th member was someone who appeared on neither party’s list. We shall have to wait and see.
2. “According to constitutional guidelines, the populations of each district can be no more than 5% above or below the ideal district size.” Specifically, we have been told that if New Jersey’s ideal legislative district includes 220,000 people, the individual districts must be between 209,000 and 231,000 residents.
That’s not entirely accurate, according to the experts I consulted at the National Conference of State Legislatures. The state Constitution specifies a much broader 20% margin on either side. But this has been overridden by a federal standard allowing for no more than a maximum 10% “range” between the smallest and largest district. However, that federal standard is calculated differently than what the media has been reporting.
For example, if the ideal district size is 220,000, the smallest district on a redrawn map could conceivably be 205,000 and the largest could be just under 227,000. In this instance, the smallest district is actually 6.8% below the ideal size while the largest district is less than 3.2% over. In other words, this map would meet the federal standard because the difference between the largest and smallest district is less than 10% of the ideal district size.
So why is the media reporting that the commission must adhere to a more narrow plus or minus 5% definition? They are getting this information from partisan sources. It’s no secret that both parties have been running preliminary population estimates through their own mapping software to examine all the possible district configurations.
It seems likely that one side has determined that the narrower definition gives them a better chance of getting a map beneficial to their interests. It may just be a minimally better chance, but the stakes are extremely high and the two parties will fight for any advantage. This is possibly why the plus or minus 5% definition has been bandied about.
3. “Newark and Jersey City will be each be divided into two districts.” The state Constitution stipulates how to deal with municipalities whose population is larger than the ideal district size. In practice, this only applies to Newark and Jersey City – the only two municipalities whose population exceeds 220,000.
The constitution provides a formula for determining the maximum number of districts that a town can be split into. Basically, you divide the town population by the ideal district size and then round up to the next whole number. In 2001, both Newark and Jersey City were spread across three districts although the constitutional formula accorded them only two.
That map survived a legal challenge, but more recent rulings by the U.S. Supreme Court suggest it would not pass muster today. So, the media report in this instance is likely true. However, the media has ignored the fact that the Constitutional formula for splitting municipalities also applies to counties. And the 2001 map clearly violated that standard.
For example, Essex County should have been divided into no more than four legislative districts according to the state Constitution. However, its 22 municipalities are spread across seven districts! And they are not alone. Of New Jersey’s 21 counties, seven (Bergen, Mercer, Middlesex, Monmouth, Morris, Passaic, Somerset) include two more districts than they are constitutionally entitled and seven have one more (Atlantic, Burlington, Camden, Cumberland, Gloucester, Hunterdon, Union). Only six counties (Cape May, Hudson, Ocean, Salem, Sussex, Warren) meet the constitutional limitation on dividing county populations across legislative districts.
There are certainly reasons why the partisan commissioners would want to ignore this restriction. It’s a question of power. Most districts are safely drawn for one party and organizational support determines who gets the party’s nomination. Thus, a party organization would want to have a say in the candidate selection process on as many legislative seats as possible. Therefore, adhering to the Constitutional restrictions on dividing counties could limit the commission’s choices in drawing partisan gerrymandered districts and protecting incumbents.
There are also valid legal reasons why the commission could draw up a map that violates the Constitutional requirement on the division of county populations. Among the most significant is the equal size standard. If the commission cannot feasibly draw districts that meet the federal 10% maximum range guideline without violating the county split provision, then the population size standard wins out. We’ll see what the possibilities are as the public gets to pour through the Census data.
In any event, both parties have already acknowledged that the current three-way split of Newark and Jersey City is unacceptable. Given this public admission, expect an interesting legal battle if the commission draws a map that does not adhere to the same requirement regarding counties.