# David v. Cahill > District Court, D. New Jersey · April 26, 1972 · 342 F. Supp. 463 URL: https://www.frixlaw.com/law-library/cases/9885215 ## Case - **Full name:** William DAVID Et Al., Plaintiffs, v. William T. CAHILL, Governor of the State of New Jersey, Et Al., Defendants, James J. Howard Et Al., Intervenors - **Court:** District Court, D. New Jersey - **Decided:** April 26, 1972 - **Citations:** 342 F. Supp. 463 - **Precedential status:** Published - **Opinion:** Dissent by Fisher - **Judges:** Farley & Rush - **Cited by:** 11 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9885215 ## Opinion text OPINION CLARKSON S. FISHER, District Judge (dissenting in part). The factual and procedural history of this case is found in the majority opinion with which I agree except to the extent of the scope of the relief granted. The difficulties predicted for the District Courts by Justice Frankfurter dissenting in Baker v. Carr, 369 U.S. 186, at p. 266 , 82 S.Ct. 691 , 7 L.Ed.2d 663 (1961), have become all too apparent in this case. The “political thicket” Colegrove v. Green, 328 U.S. 549, at p. 556 , 66 S.Ct. 1198 , 90 L.Ed. 1432 (1945) has become for us an impenetrable forest. After finding N.J.S.A. C. 19:46-3 unconstitutional, we allowed the New Jersey Legislature ample opportunity to perform its duty in the congressional redistricting of the State. There were a number of bills then pending before the Legislature and indeed there was time to introduce new legislation, but the Legislature failed to come forth with a plan. It then became the awesome task of this Court to attempt this redistricting without facilities or staff and in an extremely limited time period. It was obvious that the Court could not possibly *472 have drawn its own plan under these extremely adverse conditions. We were forced to choose between a multitude of plans submitted to us by factions, political groups and individuals, all having their own fish to fry. Each of these plans was partisan, therefore it was inevitable that any plan chosen by this Court had to be partisan. My brothers and I labored hard to decide which plan was the most desirable and my only disagreement with the majority is on that basis. It must be borne in mind at the outset that we are creating only an interim plan which will be changed as soon as the Legislature rouses from its lethargy after the November elections. The last expression of the Supreme Court on this subject makes it clear that all criteria which have heretofore been used in redistricting cases must give way to the paramount consideration of population equality in the congressional districts, Kirkpatrick v. Preisler, 394 U.S. 526 , 89 S.Ct. 1225 , 22 L.Ed.2d 519 (1968), although predictable population trends may be considered. However, in achieving this result, the Court properly should be guided by other criteria and I am completely in accord with the majority that among these are contiguity and compactness of districts, preservation wherever possible of county and municipal lines, recognition of population changes and an eye to the previous legislative determination of appropriate districts. I further agree that at least to some extent these considerations should be balanced. If we do not consider factors other than population equality, this will become a simple exercise in arithmetic. In my view the plan which was patterned on Senate Bill 744 and refined by the Secretary of State to reduce the population deviation to a maximum of eight people over and seven people under the ideal district of 478,059 persons, was the best of a bad lot. The deviation figures are as follows: DISTRICT POPULATION 1 1 478,054 2 478,067 3 478,060 4 478,065 5 478,058 6 478,059 7 478,052 8 478,057 9 478,059 10 478,055 11 478,061 12 478,067 13 478,057 14 478,052 15 478,062 7,170,885 1 1970 Federal Census 2 From ideal: 478,059 % OF REL. DEVIATION 2 DEV. —5 —.0011 +8 +.0017 +1 +.0002 +6 +.0013 —1 —.0002 0 — —7 —.0015 —2 —.0004 0 — —4 —.0008 +2 +.0004 +8 +.0017 —2 —.0004 —7 —.0015 +3 +.0006 0 ° .0008 The foregoing plan has minimal population deviation, it succeeds to some extent in preserving the county and municipal lines and it has the virtues of compactness and contiguity. Further, it realistically approaches the shifting population of this, the most densely populous state. In addition, this plan uses the so-called “core” approach which, using the prior districts as a beginning point, goes on to meet the one man — one vote mandate. Although the majority gives no consideration to the fact that Senate 744 was the only legislative act which passed at least one house of the Legislature, 1 I feel that this should be a leading factor in our determination. Admittedly it was brought on the floor of the Assembly, failed and was withdrawn as a parliamentary tactic. It is, however, at least some expression of legislative will and would allow this Court to give at least a passing salute to Article 1, Section 2, Clause 3 of the Constitution of the United States. See Skolnick v. State Electoral Board of Illinois, 336 F.Supp. 839 (1971) Senate Bill 827, which never got out of Senate Committee, has been selected as this Court’s plan. When examined together with Senate 744 it is quite appar *473 ent that the draftsman of Senate 827 took Senate 744 as a starting point and changed southern districts to favor two incumbents at the expense of another. Granted, the Court’s plan has alleviated an unfair situation in Hudson County and does keep municipal lines inviolate; however, I deem impropr the apparent structuring of the 10th and 11th districts on racial grounds. 2 In doing this it is noted that the draftsman drew the lines of the 11th district in such a fashion that it resembles nothing more than a Rorschach ink blot, and in selecting this plan, the majority has apparently deviated from the desired core approach and has adopted a plan which raises grave constitutional questions. Judge Pollack in rejecting a challenge to a New York Assembly districting plan which split a black community, argued: “ . . . (T)he complaint appears as an unabashed plea for segregation in the composition of Assembly Districts, for color consciousness rather than for color blindness. Speaking in a different context, Mr. Justice Douglas has emphasized the repugnance of such a plea to the principles of democracy: ‘Racial boroughs (like rotten boroughs), are ... at war with democratic standards. ’ Wright v. Rockefeller, 376 U.S. 52, 62 , 84 S.Ct. 603, 609 , 11 L.Ed.2d 512 (1964) (dissenting opinion). Any purposeful attempt to maintain a majority of persons of one race within a given district would, in fact, raise grave constitutional questions. Wright v. Rockefeller, 211 F.Supp. 460, 468-469 (S.D.N.Y.1962) (concurring opinion of Feinberg, J.) aff’d. 376 U.S. 52 , 84 S.Ct. 603 , 11 L.Ed.2d 512 (1964). ” Ince v. Rockefeller, 290 F.Supp. 878 (S.D.N.Y.1968). It may be argued that in the past the black vote was purposely split on racial lines, that the legislature did not use objective criteria, but rather tried to deprive the blacks of representation. This may or may not be so. It is not for this Court to decide nor correct. No evidence of this nature was brought before us, nor are there any cases guiding the Court in correcting any such possible injustice. On the contrary, there are cases such as Ince v. Rockefeller, supra, and Wright v. Rockefeller, supra, holding that the Court cannot correct apportionment lines possibly drawn on a racial basis by drawing its. own lines on that basis. Once a core approach was adopted it should have been followed consistently. The racial lines of the 10th and 11th districts indicate otherwise. For the above reasons, I respectfully dissent. . By our deadline for submission of plans. . Under the plan adopted by the majority the population of the 10th District is 46.67% white and 52.33% non-white. Under that plan the 11th district is 92.80% white and only 7.08% non-white. In contrast, the racial population of the 10th and 11th districts under N.J.S. 19:46-3 was approximately 69% white and 31% non-white in the 10th and 63% white and 37% non-white in the 11th. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9885215. Public record. Not legal advice.