Legislative redistricting in New Jersey is a three-act play. First, the five Democratic and five Republican commissioners meet, posture and fail to agree on a map. Second, the Supreme Court chief justice appoints a professor to serve as the powerful 11th commissioner, either to broker a compromise or to choose the winning map. Third, the loser and other aggrieved parties go to court, and in redistricting, that’s where the real decision-making takes place.
New Jersey’s third act will most likely be played out in April on a national stage: It will represent the first legal test of the United States Supreme Court's 2009 ruling on requirements for majority-minority districts under the Voting Rights Act. And it will play out on a, a New Jersey that is 16.7 percent Hispanic, 14.5 percent Black and 7.8 percent Asian from numerous nations of origin.
With the appointment of Rutgers University Professor Alan Rosenthal as the 11th member last Thursday, legislative redistricting entered its second act with a 30-day statutory deadline of April 3, when a new map must be in place. That's just eight days before the April 11 deadline for candidates to file petitions to be on the ballot for the June 7 primary.
Rosenthal formally took center stage yesterday in the largest legislative committee room in the Statehouse Annex, listening intently as a parade of current and former minority legislators, Tea Party members and academics trooped in for the first of three public hearings before the Legislative Redistricting Commission. But it’s not the public hearings that count, it’s the private hearing. Redistricting in this second stage resembles an arbitration hearing, with the Democratic and Republican negotiating teams proposing detailed maps and marshaling arguments to show that their plans fairly reflect the partisan will of the electorate, provide minorities with appropriate representation, keep communities of interest together in the same legislative district, and provide continuity of representation for most voters.
It is a hearing with an audience of one: Rosenthal.
Democrats won the last round in 2001 because they understood that tiebreaker Larry Bartels of Princeton University would be sympathetic to their argument that shifting thousands of minority voters from the cities into mixed urban-suburban districts could actually increase the number of minorities elected to the legislature. It did -- by four -- and the Democratic gains of two Senate and four Assembly seats in the new minority-opportunity districts (the Essex-dominated 34th and Union-dominated 22nd) were critical to the party recapturing control of the legislature. This year, redistricting will also go a long way toward determining control of the legislature in November’s election. Population shifts from the urban Northeast counties to GOP-dominated suburban counties virtually guarantees that Democrats, who currently have a four-seat edge in the Senate and seven in the Assembly, will lose a minimum of one Senate and two Assembly seats under the.
For months, the public debate has focused on the implications of race-based redistricting for partisan control. Democrats argue that the minority opportunity districts they created in 2001 by shifting African-American and Hispanic voters into mixed urban-suburban districts succeeded in electing more minorities to the legislature. It did – and the four minority Democrats who were elected in formerly Republican districts helped end a decade of GOP legislative control. Republicans counter that the Voting Rights Act demands the creation of majority-minority districts that concentrate African-American and Hispanic voters into urban districts where they are guaranteed to elect minority legislators – which, of course, would "waste" thousands of minority votes that have made a difference for Democrats in swing districts since 2001.
Unlike in 2001, when Bartels was unknown to the New Jersey Legislative Redistricting Commission, both parties already know Rosenthal well. In fact, both parties suggested him to Chief Justice Stuart Rabner as an acceptable choice. The 78-year-old Rutgers political scientist served as the neutral tie-breaker for the separate New Jersey Congressional Redistricting Commission in 2001 and the 1991. In both cases he succeeded in brokering compromises between the two parties rather than choosing a winning map.
Reaching bipartisan compromise in less than 30 days on a legislative map that could determine which party controls the state Senate and Assembly next year is a much more difficult challenge than reaching bipartisan agreement over a period of eight months on a congressional map that only 13 incumbents care deeply about. But Rosenthal said yesterday he will try.
Rosenthal said during the 2001 congressional redistricting round that any bipartisan agreement "could be presumed to be politically fair." And as a proponent of the legislative branch, he believes more than most in the importance of continuity of representation. He noted approvingly of the 2001 compromise that because 90 percent of New Jerseyans would be living in the same congressional district, "people might actually know who their congressman is."
Rosenthal’s views on the relative merits of majority-minority districts vs. minority-opportunity districts are less clear. He understands how politicians use the politics of race from his experience with the Congressional Redistricting Commission in 1991, when the Bush Justice Department was pushing hard for majority-minority districts.
However, what was surprising yesterday was how little importance Rosenthal attached to the issue of minority representation on his priority list, especially considering the way the issue has dominated the public debate. No group has been more vociferous than Hispanics. Many, although not all, Hispanic leaders have been contending -- with considerable justification -- that their emergence as the state's largest minority in the 2010 Census required the creation of more majority Hispanic districts or Hispanic opportunity districts. While the 15 African-American legislators are just two shy of the number that would reflect the state's 14.5% black population, the eight Hispanic legislators are 12 short of the 20 that would reflect the state’s 16.7% Hispanic population. Asian-Americans, who have grown to 7.8 percent of the population and only have two Asian-American legislators, are equally underrepresented, but their population is too dispersed for redistricting to make a difference.
For Rosenthal, however, the issue of minority representation ranked eighth out of the nine criteria he said he would use in choosing between the final maps proposed by the five-member Democratic and Republican commission caucuses competing for his approval.
Rosenthal’s priorities, which he said he hoped the two caucuses would move toward, are to:
Create population equality between districts, preferably with no more than a 5 percent disparity between the most populous and least populous district -- well under the 10 percent disparity permitted by the U.S. Supreme Court for legislative redistricting.
Avoid splitting municipalities between two legislative districts (although Newark and Jersey City will have to straddle two districts because of their population size).
Keep districts contiguous, as is required by New Jersey Constitution.
Keep districts as compact as possible, which is also a criteria set by the state Constitution, although undefined.
Preserve "communities of interest," which is taken to mean everything from regional school districts to regional transportation communities to towns that shop in the same downtown or mall.
Maintain continuity of representation for most voters, which means allowing incumbent legislators to run for reelection in 2011 in districts whose voters elected them in 2009 and often for the previous decade.
Preserve or slightly increase the number of competitive districts where both parties have a reasonable ability to win seats.
Provide opportunities for minority representation, which Rosenthal defined as not breaking up any majority-minority districts now in existence, but no emphasis on creating more, as some Hispanic leaders have urged.
Finally, to promote partisan fairness by approving a map that reflects the partisan leanings of voters and is fair to both political parties.
Rosenthal’s decisions to put population equality first and to emphasize continuity of representation over creating competitive districts or increasing electoral opportunity for underrepresented minorities, particularly Hispanics, surprised many attendees yesterday.
But the soft-spoken Rutgers professor can expect his role as the commission’s neutral tie-breaker to come under even more scrutiny in this era of Facebook, Twitter and dueling partisan bloggers than Larry Bartels did in 2001, when his vote for a Democratic map led a GOP governor and legislature to wipe out a state aid allocation to Princeton University that had been in the budget for decades. Legislative redistricting matters more to New Jersey political leaders and partisans than congressional redistricting, where the swing of a seat has little impact on congressional control, and Rosenthal is putting his hard-earned reputation for partisan evenhandedness on the line for the first time in a process where bipartisan compromise is unlikely. "We were a little surprised he accepted it" one close associate of Rosenthal confided.
Not all political watchers think Rosenthal’s priorities are fair or best for voters. Representatives of Tea Party movements from Morris, Middlesex and Monmouth counties sharply criticized the emphasis on continuity of representation as nothing more than "incumbent protection" in disguise. "Look at the redistricting lines and they look like they were drawn by a two-year-old," Richard Gibbons of Monroe, representing the newly formed Middlesex County Tea Party, complained. "They’re obviously drawn to protect political officeholders. If you’re going to pick our officeholders for us, why should we even vote?"
But it was Monmouth University political scientist and pollster Patrick Murray, who has been writing extensively about redistricting and proposing his own maps, who made the most impassioned case for creating competitive districts.
"I speak to you as an independent voter, one of 2.1 million in New Jersey. In competitive districts, we would make the difference. Your absolute rule," he said, addressing himself directly to Rosenthal and his priority list, "is not to diminish the standard of competitiveness. I would argue that it is impossible to decrease the number of competitive districts [in New Jersey] without going into negative numbers."
Murray noted that he has proposedwith no more than 7.8 percent population deviation between the largest and smallest districts that has 10 to 13 competitive districts out of the 40 that make up the New Jersey legislature.
"This would allow both parties the opportunity to have a majority in the legislature. Having competitive districts also increases media interest and voter attention. A competitive map is a fairer map in every sense of the word," Murray said. Directly addressing Rosenthal again, he said, "I urge you to consider a more proactive definition of competitiveness -- one that creates six or eight or ten competitive legislative districts."
Murray said in an interview later that he believed Republicans were making a strategic mistake in focusing so much on trying to concentrate minority Democratic voters into majority-minority districts, rather than going for a map with more competitive districts.
"Democrats could take more majority-minority districts and still have the edge because of registration," he said.
"The reason they are focusing on majority-minority districts is that’s the way the debate has been all over the country. Most maps are drawn by legislatures, so creating competitive districts as a strategy to try to win control is something that’s never been tried."
Most important court cases over the past two decades have focused on the issue of minority representation under the Voting Rights Act and the equal protection clause of the U.S. Constitution.
New Jersey Democrats, led by Senator Richard Codey and then-Assemblyman Joseph Doria, went against more than a decade of court decisions across the country when they persuaded tie-breaker Bartels and New Jersey’s U.S. District Court and state Supreme Court that shifting thousands of minority voters from urban districts into more competitive urban-suburban minority-opportunity districts would actually increase the opportunity for African-Americans and Hispanics to win seats.
No affirmative right to create minority-opportunity districts was created by New Jersey’s federal and state court decisions, however, and the U.S. Supreme Court simply decided not to hear a Republican challenge to the constitutionality of the Democratic map, which reduced the percentages of minority voters in urban legislative districts.
In 2009, however, the U.S. Supreme Court issued a 5-4 decision in the North Carolina case of Bartlett v. Strickland that made it clear that the Voting Rights Act does not require the establishment of legislative districts in which minority candidates could win election unless the minority population made up more than 50 percent of the district. New Jersey, under Democratic Gov. Jon Corzine, filed an amicus curiae brief with a number of other Democratic-controlled states arguing the merits of the minority-opportunity district approach, and lost. The five justices who made their preference for majority-minority districts over minority-opportunity districts were Chief Justice John Roberts and Associate Justices Samuel G. Alito, Anthony Kennedy, Antonin Scalia and Clarence Thomas -- all conservative Republican appointees. As was often the case in 2009, moderate Republican appointees David H. Souter and John Paul Stevens joined Democrats Ruth Bader Ginsberg and Stephen G. Breyer in dissent.
Souter and Stevens have been replaced by Democrats Sonia Sotomayor and Elena Kagan, but the five Republicans who made up the Bartlett majority all remain on the bench, which could spell trouble for New Jersey Democrats if the burden of proof is on the Democrats to challenge a Republican-drawn map that packs African-American and Hispanic voters into majority-minority districts.
Rosenthal may have minority representation ranked eighth on his list of priorities, but when it comes to legal challenges of redistricting maps in the state and federal case, race is the main legal battleground. And even if Rosenthal somehow achieves a major miracle by getting Democrats and Republicans to agree, any legislative map that does not increase opportunities for New Jersey’s rapidly growing Hispanic minority to win a greater share of seats in the legislature is headed straight for the courts.
That could make New Jersey the key test case for the new politics of race and minority representation in redistricting, because only three other states are drawing up legislative maps under tight April deadlines for legislative elections scheduled to take place in November 2011. The other three -- Virginia, Mississippi and Louisiana -- are all in the hands of Republican legislatures empowered to draw up the new legislative maps themselves, and with every partisan incentive to follow the U.S. Supreme Court’s Bartlett roadmap by packing minority voters into majority-minority districts wherever possible.