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Redistricting is set to begin. Do we need a hard-nosed judge to help draw the lines?

by Patrick Murray

This column originally appeared as an Op-Ed in the Star-Ledger on August 22, 2021.

The U.S. Census Bureau has finally released the data states need to carry out redistricting. That sets a number of processes in motion for the commissions responsible for redrawing New Jersey’s congressional and legislative districts.

Despite the six-month delay, our process is pretty much on track. The Redistricting Commission, which draws the congressional map, is not required to deliver a final map until mid-January.

The Apportionment Commission – the body responsible for redrawing the state legislative map – could have been in trouble since the election for those offices is less than three months away. However, a constitutional amendment approved by voters last year allows the state to delay implementation of a new map until 2023.

The first order of business for the Apportionment Commission is the appointment of an independent member, commonly called the “tiebreaker.” In past decades, these independent members have pushed for consensus and compromise – and have even proposed their own plans – but in the end, they ultimately had to choose between two partisan maps.

When the commission format was initially proposed it was hoped that there would be enough common ground for the two parties to reach consensus on a new map. That actually worked for the first couple of legislative rounds in the 1960s and 1970s. By the time the congressional commission was created in 1991, though, it was clear that some type of tiebreaking vote would be the norm.

There are a number of flaws with this type of system. The most glaring problem historically is that tiebreaking members have idiosyncratic preferences on redistricting criteria. The New Jersey Constitution is largely silent on which principles should guide redistricting deliberations. The choice of an independent member therefore results in an unaccountable prioritization of some principles over others.

In the state’s past experience, one tiebreaker focused on “partisan fairness” while another was mainly concerned with “continuity of representation.” It comes as no surprise that the independent member has chosen the partisan map that came closer to meeting these personal priorities, or at least were convinced by one party that their map was closer to these priorities.

Two years ago, I joined with a group of redistricting experts who proposed improvements to New Jersey’s apportionment process. Our recommendations included increasing transparency and public input; instituting standard, yet flexible, guidelines for redrawing the legislative map; and creating a panel of not one, but three, independent members.

An independent panel means no single personal priority could drive the process. Moreover, a multi-member panel can bring greater diversity and representation. It is worth noting that the tiebreakers on every past commission have been white men from either Rutgers or Princeton.

This year will be different though, at least for the congressional commission. And this could provide a blueprint for the legislative commission tiebreaker.

The congressional commission chooses its own independent member. If the partisan members cannot reach an agreement – which happened for the very first time this year – the state Supreme Court takes a vote between the preferred choices of the Democrats and Republicans.

In a change with past practice, the names that arose this year were not academics. They were retired judges. The court decided on one of their own to be the tiebreaker for the congressional commission. Not only will former justice John Wallace, Jr. be the first jurist in this role, but he will be the first person of color.

The tiebreaker selection process for the legislative commission works a bit differently. In this case, Chief Justice Stuart Rabner makes a unilateral appointment. Although he is not required to do so, he has asked both parties to submit names in the hope there will be a common choice. As with the congressional commission, a bipartisan pick is unlikely to emerge, which means Rabner must name someone of his own choosing.

Given the lack of clear constitutional reapportionment principles and prior concerns with the personal priorities of academics – it could make sense to have a jurist serve in the role of mediator.

Since the court went with the Democrats’ preference on the congressional commission, Rabner could simply opt for the GOP’s runner-up, former Superior Court Judge Marina Corodemus. Other possibilities include former Chief Justice Deborah Poritz, who was floated as a compromise candidate for the congressional commission, and retired Judge Paulette Sapp-Peterson, the first African-American woman to serve at the appellate level in New Jersey.

Another name that should be given serious consideration is Judge Mary Jacobson, who is about to retire from the bench. As Mercer County Assignment Judge, she has presided over some of the state’s highest profile political process cases. Jacobson has shown she can handle the partisan maneuvering that is part-and-parcel of every redistricting process.

My ultimate preference, of course, would be to institute the reforms we proposed in 2019. Until that happens, though, perhaps a hard-nosed judge is the best choice for now.