NJ Democrats Push Plan to Rewrite Constitution and Keep Their Legislative Map

Colleen O'Dea | July 31, 2020 | Politics
Voters will have their say in November. Republicans say they’ll work to defeat it, progressives talk legal challenges
Republican Assemblyman Christopher DePhillips, left, said, “The resolution simply offers a solution in search of a problem.” Democratic Assemblyman John McKeon: “There’s just not a lot of good options here.”

New Jersey voters will decide in November whether state lawmakers will get two more years to run in the same districts if the U.S. Census Bureau does not provide the state with new population counts early next year. One Republican state senator called the move “racist.”

Over the objections of both Republicans and groups advocating for social justice and fair elections, the Democratic-controlled state Senate and Assembly on Thursday passed a resolution that places a constitutional amendment on the November ballot asking voters to delay the redrawing of legislative districts. The advocates say the delay will disenfranchise minority groups from getting proportional representation for two years, while Republicans say it is a power grab by Democrats to extend their party’s legislative dominance.

“The resolution simply offers a solution in search of a problem,” said Assemblyman Christopher DePhillips (R-Bergen). “Late census data is nothing new in the state of New Jersey … Here the resolution offers permanent constitutional changes under the guise of the pandemic. But if this were really just about the pandemic, the resolution would only offer a one-time fix and it does not. Let’s not be so cavalier about amending the Constitution in perpetuity.”

Sen. Robert Singer (R-Ocean) went further, asserting, “This actually shortchanges the minority populations of this state. This by itself is a racist move to do this type of thing. Don’t we care?”

Assemblyman John McKeon (D-Essex), prime sponsor of the amendment, defended the change as necessary.

“There’s just not a lot of good options here,” he said. “None of us created this virus. None of us asked that the census bureau pause by four months what they would have ordinarily been doing.”

McKeon: No other choice

Voters will be asked to push back the redrawing of the state’s 40 legislative districts from next spring until as late as March 1, 2022. That would keep the current district lines in place until the 2023 election, for a total of 12 years, instead of the 10 now mandated in the Constitution.

McKeon and other Democrats said there’s no other choice, because the disruption by the pandemic of the decennial census count means the census bureau is not planning to provide the state with the new population numbers needed to redraw district lines until mid-June of 2021 — after the primary elections for those legislative districts would typically have occurred.

Between redistricting rules and legal election deadlines, next year’s primary would wind up being held in late October, less than two weeks before the general election, if the amendment is not approved, McKeon said.

“I don’t think anybody would argue that would be an appropriate way to handle this,” he said.

Further, McKeon said, it’s unlikely the state will get population data by mid-June — as estimated by census bureau officials two months ago — given some 45,000 enumerators will only begin to file out across the state on August 11 to follow up on non-responses to the census. Originally, this was to have been completed by July 31.

Bateman: ‘It’s about protecting incumbents’

Republicans argued that if Democrats’ real goal was to deal with this problem caused by the COVID-19 pandemic, the state should do so not by permanently amending the Constitution, but by changing next year’s election-related dates and deadlines as necessary. Gov. Phil Murphy pushed this year’s primary back by five weeks due to the pandemic. They also argued that setting a date of Feb. 15 by which the state must receive census data or postpone redistricting is arbitrarily early. Sen. Christopher “Kip” Bateman (R-Somerset) noted that the state got population counts from the census bureau later than Feb. 15 in the previous two decades and still redrew district lines in those years.

“It should be clear that this measure is unnecessary,” Bateman said. “It’s extreme. It’s not about fairness or accuracy. It’s about protecting incumbents and the majority party’s two decades of control of the Legislature. It’s shameful that anyone would try to use the cover of a public health emergency to try to amend our New Jersey Constitution in a way this is so overly political.”

While there were indications in April that the population count could be delayed, the amendment was not introduced until earlier this month. It moved quickly through the Legislature, meeting a deadline of Aug. 3 to make it onto the November ballot with four days to spare. It passed along party lines Thursday in both legislative houses, where Democrats hold enough seats to get the 60% majority approvals needed.

The many critics of the plan say there are other, better options than allowing current districts that have become imbalanced due to population shifts and increased immigration to remain in place for two more years. Progressive groups that normally support Democrats — including the NAACP State Conference, Salvation and Social Justice and Fair Share Housing Center — have expressed strong opposition, calling for a slower, more thoughtful solution. They suggested other reforms to make the process more transparent and less apt to result in gerrymandered districts.

Unfair to Asian and Hispanic voters?

Census data is used to ensure that legislative districts have roughly equal populations to follow the constitutional principle of one person, one vote when boundary lines are being redrawn.

New Jersey’s population has shifted over the last decade, leaving some districts with much larger populations than others, thus diluting each voter’s voice in the larger districts. The state is also much more diverse: non-Hispanic whites made up about 55% of residents in 2019, down from more than 59% in 2010. At the same time, the proportion of Asians and Hispanics has increased, and advocates say these groups should have a chance to elect representatives who share their race or ethnicity next year and not have to wait until 2023.

The state’s rules for redrawing districts are enshrined in the New Jersey Constitution, which is why an amendment is needed to change them. Under the rules, as a practical matter, a 10-member commission has a month from the time it receives the new census counts to redraw the state’s map of 40 districts. If it deadlocks — and it always has in the past because the chairs of the Democratic and Republican parties each appoint half the members — the chief justice of the state Supreme Court appoints an 11th member. That member gets an additional month to achieve a majority vote on a map. The current map favors Democrats.

New Jersey and Virginia are the only states that hold legislative elections in odd-numbered years and need their population counts as early as possible, so the new districts are ready for an election in 2021. The census bureau typically prioritizes getting data to these states first.

Census officials said in mid-April their goal was to give all states their data by July 31, 2021. But census reporting deadlines are set in law, so the bureau needs Congress to act to change them. Measures to do that are pending. Census officials have been quoted as saying they can’t meet the legal deadline of Dec. 31 to complete their count, a process that includes using statistical methods to account for those who don’t respond to try to prevent a population undercount.

Not ruling out a legal challenge

The Democrats’ last attempt to revise the redistricting process in late 2018 — in a way many complained would have helped the party — was not successful. Vocal and organized opposition from progressive groups, among others, killed it.

Henal Patel, director of democracy and justice programs with the New Jersey Institute for Social Justice, has said that delaying the redrawing of district lines may not survive a court challenge and did not rule out filing such a legal effort.

“We and other groups will continue to assess the situation. For now, all options are on the table,” she said Thursday.

The state Republican Party, meanwhile, vowed to work to defeat the question on the ballot in November.

“The people of New Jersey deserve legislators that reflect the political and demographic makeup of our great state, and they haven’t enjoyed that in at least a decade,” said Doug Steinhardt, New Jersey GOP chairman. “Democrats pushing this amendment to delay redistricting are trying to kill a fly with a sledgehammer … A reasonable path to a 2021 election on new lines exists. The NJGOP remains opposed to this constitutional amendment and will fight against it in the fall.”