Brady v. New Jersey Redistricting Commission

O’HERN, J.,

concurring.

I concur in the opinion and order of the Court dismissing the challenges to the 1992 congressional redistricting plan. I write separately, however, because it may be perceived that dismissal of the petition conveys the impression that the plan is judicially . required.

The New Jersey Redistricting Commission has enacted a plan to meet the one-person-one-vote mandate of Karcher v. Daggett, 462 U.S. 725 , 103 S.Ct. 2653 , 77 L.Ed.2d 133 (1983), but, in my view, may have failed to advance other representative values of a self-governing society.

County and community boundaries, even voting districts themselves, have been split in the name of mathematical equality. I would not begin to know the intricacies of such “automated redistricting models,” Michelle H. Browdy, Note, Computer Models and Post-Bandemer Redistricting, 99 Yale L.J. 1379 , *623 1384-89 (1990), or to the extent to which such models can be manipulated. I do have a sense, however, that the framers of our Constitution, who placed such a high value on the dignity of the individual and on the importance of human values, would have never subordinated civic responsibilities to the workings of a machine. Can one imagine civic boundaries drawn by a computer? Nothing in our law commands such a loss of human values in civic planning.

In Karcher v. Daggett, supra, which invalidated New Jersey’s 1982 reapportionment plan, Justice Brennan explained that the Court will tolerate “minor population deviations” caused by state legislative policies, such as “making districts compact, respecting municipal boundaries, preserving the cores of prior districts, and avoiding contests between incumbent Representatives.” 462 U.S. at 740 , 103 S.Ct. at 2663 , 77 L.Ed.2d at 147 . Justice Stevens, concurring in that 5-4 decision, emphasized that for him it was the political gerrymandering of districts that made the 1982 plan invalid. Id. at 744 , 103 S.Ct. at 2665 , 77 L.Ed.2d at 151 . Justice Stevens explained that he would accord a strong measure of deference to the otherwise legitimate concerns of the State. Id. at 760 n. 26, 103 S.Ct. at 2675 n. 26, 77 L.Ed.2d at 161 n. 26.

We have no record of the Commission’s deliberations so we do not know what effort was made at “preserving” the cores of prior districts or of “respecting municipal boundaries.” Under the plan, most of Middlesex County’s population of approximately 672,000 could be included in one congressional district. Instead, the plan divides the county among four congressional districts. Hudson County, which is separated from Middlesex County by centuries of history and tradition, is joined with Middlesex by a land bridge including parts of Union and Essex Counties. I realize that the Redistricting Act seeks the “preservation of minority voting status within each district,” L. 1991, c. 510, § 5a, but to “preserve” a minority district is one thing; to create one artificially is another. Communities on the Atlantic estuaries are joined with communities on the upper Dela *624 ware rather than their historic neighbors up and down the rivers of the Atlantic. I do not have the same familiarity with northern regions of the State to sense how communities have been affected. I note that Maplewood is in three congressional districts as are Jersey City and Linden.

There is a growing concern in our country about public life— a sense that government is no longer accountable to the people but rather advances itself or the interests of groups other than its constituencies. Voter turnout continues to decline because of the perception that votes do not count. Voters feel alienated from their elected representatives. The Kettering Foundation reports that the public perceives our political system “as so autonomous that the public is no longer able to control and direct it.” The Voters, Yes. But Which Ones?, N.Y. Times, April 10,1992, at A36. Elected officials are equally disenchanted; our senior congressional representatives have withdrawn from public life. A major theme of the recent presidential election was to dispel the public sense of powerlessness to affect our political arrangements.

I would not claim to know the answer to such concerns but I do not think that a computer-driven process that divides communities and regions in the name of mathematical equality is the answer. It would seem to me, subject to necessary voting-rights limitations, that a sense of place and a sense of community are vital to the shared values that a member of Congress should represent. “ ‘Congressmen representing these stretched-out districts haven’t got any common electorate * * * [and such redistricting] destroys the notion that there are common questions and problems shared based on where people live, and says instead that the problems they share are based on their ethnicity.’ ” Todd S. Purdum, Districts Drawn for Minority Votes Complicate New York’s Election, N.Y. Times, August 16, 1992, at 1, 41 (quoting Edward Costikyan). And on that score of voting rights, I do not believe that recognition of considerations beyond ethnicity would constitute voting rights dilution unless a “distinctive minority vote” of a “geographical *625 ly compact” minority community is “thwart[ed] * * * by submerging it in a larger white voting population.” Growe v. Emison, — U.S.-, 113 S.Ct. 1075 , 122 L.Ed.2d 388 (1993).

The Commission may have attempted to address those concerns, but we have no record of such attempts. The Commission’s process of deliberations is not open and the public does not have the benefit of the reasoning that might give public confidence to the plan.

Courts cannot, however, substitute their judgment for that of elected (or, as here, appointed) representatives of the people. Courts are limited to consider only constitutional and statutory restraints on the exercise of redistricting power. Davis v. Bandemer, 478 U.S. 109 , 106 S.Ct. 2797 , 92 L.Ed.2d 85 (1986). Section 5 of the Redistricting Act, A. 1991, c. 510, allows the Commission to adopt the plan and the Constitution does not forbid it.

By the same token, the Constitution does not require the loss of community values and sense of place with respect to their congressional representation that these petitioners have experienced. The State has the power to address what Justice Stevens referred to as the “ ‘legitimate considerations’ ” of government. Karcher v. Daggett, supra, 462 U.S. at 760 , 103 S.Ct. at 2675 , 77 L.Ed.2d at 161 (quoting Reynolds v. Sims, 377 U.S. 533, 579 , 84 S.Ct. 1362, 1391 , 12 L.Ed.2d 506, 537 (1964)). That power needs only to be exercised.