WHY YOU SHOULD VOTE “NO” ON THE CONSTITUTIONAL AMENDMENT THIS FALL

A little more than a month from now, New Jersey voters will start receiving their mail-in ballots for November’s general election. In addition to all the candidates running for office, those ballots will contain two statewide questions.

One you have heard a lot about will decide whether or not to legalize marijuana.

The other is less exciting but exceedingly important: a proposed amendment to the New Jersey constitutional provisions that govern redistricting, the process by which state legislative maps are redrawn every 10 years based on updated Census data.

The state Legislature approved the amendment on July 30 when Democrats in both houses (and not a single Republican) passed ACR188/SCR124  (51-26 in the Assembly and 25-15 in the Senate) with not a single Republican vote in support.

Whether or not it is adopted is now up to the voters.

Proponents of the amendment say it is necessary because the Census numbers used to draw the state legislative map are almost certain to be received later than usual because of COVID-19.  The amendment would require that we keep the previous map for an additional two years, until 2023. That means NJ would continue to use an outdated map that was drawn up in 2011 based on Census data collected in 2010. The amendment would require NJ to do so if the Census data arrives after February 14, even if it is just one day later.

The chief problem with using the old map is that in the decade since it was drawn, the ethnic and racial composition and other characteristics of the state electorate have changed, along with the geographical distribution of voters. Of particular concern is that the Latinx and Asian populations have grown by an estimated 20% or so, a surge that is not reflected in the existing map. To continue using it would therefore disenfranchise those communities to a certain extent by failing to reflect their current voting strength. In general, it would not fairly or accurately represent the current electorate in terms of who the voters are now and where they are located.

There are other serious problems with the amendment. It doesn’t just lock in use of an outdated map but does so far too early in the process when the Census data is not even officially late. And it does so for two years, even though it not only anticipates but even requires that the new updated map be certified by March 31, 2022, in plenty of time to hold an election based on that map in November 2022. And rather than providing a one-time fix for an unprecedented and unlikely to recur juxtaposition of circumstances – a once-in-a-century pandemic hitting during the once-every-10-years Census process, it makes a permanent change that could kick in again and again for the most minor delay.

Other options were available besides changing the Constitution which is supposed to be a big deal and not done lightly, which is why we the people get to have the final say.  The redistricting process could have been compressed and relevant dates for filing of petitions and for the primary and general elections could have been moved back. Without any federal races in 2021, just state ones, New Jersey could have scheduled Election Day later. Without knowing how late the data will arrive – we do not even know for certain that it will be late– it is hard to know if tinkering with the schedule would have worked.

Alternatively, New Jersey could have waited until the Census data arrived or was already delayed past the point of following the usual process and sought permission from a court to use the old map for one year rather than two. That approach would have required state legislative elections three years in a row but that is preferable to using a map that denies minority communities of their newly achieved voting strength.

Another thing the amendment does is to enable a malevolent administration to game the NJ redistricting process by merely holding back the data just a day or two past February 14 and thereby force us to use an outdated map. That might seem an unlikely scenario but so is much else of what the Trump administration has done.

Why Redistricting Matters

Why does all of this this matter? The redistricting map in question sets the boundaries and location for each of the state’s 40 legislative districts. It is redrawn every 10 years based on the most recent Census figures. A new map means different districts with a different mix of voters. It determines who is eligible to run to represent the voters in those districts and also, based on the mix of voters, which party is more likely to win.  The map has to be based on the numbers but there is a lot of wiggle room in how the lines are drawn. When politicians and political operatives draw the lines, they tend to try to maximize their own relative advantage rather than drawing districts that most fairly represent the mix of New Jersey residents and the way they are distributed throughout the state.

We should not allow our elected representatives to act as gatekeepers to the Legislature as if it is their own private club.  In other words, they should not get to pick their voters when it should be the other way around. When they do, it is known as partisan gerrymandering and those who wish to challenge it cannot turn to the federal courts thanks to the June 2019 U.S. Supreme Court ruling in Rucho v. Common Cause that partisan gerrymandering, unlike racial gerrymandering, is a political question beyond the reach of the federal courts. That makes it even more important to set the process up in such a way as to minimize the possibility of such gerrymandering.

And just to be clear: in New Jersey, the commission that draws the state legislative lines is known as the Apportionment Commission and is separate from the commission that draws the lines for Congressional districts, which is actually known as the Redistricting Commission. It is all set forth in Article IV of the state Constitution, whose language ACR188/SCR123 would amend.

How the Present Situation Arose

 

census-2020

Decennial Census data, which is also used to allocate how many seats in Congress each state gets and to draw the map for those districts too, along with how federal monies are allocated, is collected every 10 years–those that end in zero, such as 2010 and 2020. Each household is supposed to answer questions about who is residing in that household as of April 1, questions that were typically on printed forms sent out and mailed back, though this year, for the first time, it could be done online. Not everyone responds to the mailed request so a few months after the process begins, there is a second filed-count phase in which people hired for the purpose go door-to-door to those households that failed to respond in an effort to collect the missing head counts.

The information is supposed to be processed and presented to the president by the end of the year (e.g. 2010, 2020, etc.) and provided to the states by March 31 of the following year (e.g. 2011, 2021, etc.).  In past years, however, as a courtesy, it has been provided earlier, by mid-February, to New Jersey and Virginia. They are the only states that hold state elections in years ending in one, and thus have a pressing need for the data so they can draw their maps in time for an election in the fall of the year that Census numbers are released.

The COVID 19 crisis has disrupted the Census count, especially the field count phase, which was supposed to start in mid-May and run through the end of July.  On April 13, the Census bureau announced that it had temporarily suspended field operations because of the pandemic, and now expected those efforts to continue through the end of October. It was asking Congress  for authority to push back the due date for delivery of the counts by 120 days, which would allow it to get the data to the President by March 31, 2021 and to the states no later than July 31, 2021.

Since NJ typically receives its numbers about six weeks earlier than other states, it would presumably get them by mid-June, resulting in an extremely compressed timetable. In the five months between June and the general election on November 2, 2021 election: a new legislative map would have to be drawn, candidates would have to be lined up to run in those new districts; sufficient signatures gathered to get them a place on the primary ballot; the primary elections would have to take place; and once that was done, more campaigning would take place, culminating in the general election.

The Rush to Amend  

ACR188 was introduced on July 6, almost three months after it became known that the Census figures were expected to be late. At that point, to get the question on the November 2020 ballot, the process had to be rushed because the Constitution requires that an amendment be placed on legislators’ desks at least 20 days before it is voted on and, once passed by the Legislature, that it be published in a newspaper at least three months before Election Day.  Thus, ACR188/SCR123 had to be finalized no later than July 14 and passed by August 3 so it was fast-tracked through in a process that took only 24 days.  .

The Assembly Judiciary Committee voted on the bill on July 9, just three days after it was introduced. The public hearing mandated by the Constitution took place on July 20. Ten days after that, both houses approved it, just three days sort of the deadline.

Despite the short time to review and respond to the bill, many, realizing the importance of the issue,  mobilized against it. At the July 9 Judiciary Committee hearing and July 20 public hearing, almost every witness who was not a Democratic party office holder was opposed to the amendment. One of them was Helen Kioukis of the League of Women Voters of New Jersey, who testified  on behalf of the Fair Districts NJ coalition, which has been working to reform the redistricting process. The Coalition (which includes NJ Appleseed) wrote to Senate President Sweeney and Assembly Speaker Coughlin on July 16, reiterating that to extend use of the old map would run “counter to the principle of ‘equal and fair representation.’”

The brief window for revising ACR188/SCR123 had already closed by then, so it would have been futile to offer changes. Instead, the letter proposed that a companion amendment be included on next year’s ballot, one that would mitigate the harm of keeping the old map for two more years by improving the redistricting process to “amplify the voices and prioritize the representation of those hardest hit by the pandemic and a by Census undercount” by ensuring that the map-drawing process is guided by standards of diversity, racial equity, public participation, transparency, and fairness.

Individual members of the Coalition, including NJ Appleseed, the NJ Institute for Social Justice, Clean Water Action, as well as other groups such as the Princeton Gerrymandering Project issued statements in opposition.

Real Redistricting Reform

The companion amendment put forward by Fair Districts NJ would make the redistricting process fairer and more transparent and less of a means for the two major parties to joust for competitive advantage.

The way it works now is that the 10-member apportionment commission, half Democrats and half Republican, all appointed by party insiders, draws the district lines based on the latest decennial Census numbers. There are no criteria specified for the line-drawing, only for the appointments, which “shall give due consideration to the representation of the various geographical areas of the State.” Theoretically, the commission could consist entirely of white men, who could even all be from the same ethic and/or religious background, so long as they come from all over New Jersey.  (Early indications are that the commission will be a bit more diverse than that, although it will apparently have only one woman, a Republican.)

The commission has a month from when it obtains the numbers to devise and agree on a map, with must be done by a majority vote. If the members deadlock, as they often do because they are split evenly along party lines, the Chief Justice of the NJ Supreme Court names an 11th member, a tiebreaker. No selection criteria are provided for that  11th member, even though that person effectively gets to decide the issue singlehandedly. Nor does the Constitution set forth any criteria to guide the tiebreaker’s decision.

In contrast, some of the main points of the Fair District’s coalition’s companion proposal are that it would:

–Specify that commission appointments not only take into account geographical diversity but also racial, ethnic and gender diversity

–Increase commission size by five members, three of whom must be independent voters, chosen by a committee of retired judges from a pool of public applicants  who are first narrowed down to 30 persons, comprised of 10 Democrats, 10 Republicans and 10 independents, “who are reflective of and have an appreciation for the racial, ethnic, geographic, gender and other diversity of the state,” with the final five chosen for their independence, honesty and impartiality and likelihood and support for equal electoral opportunity and one of them to serve as chair of the commission.

–Require line drawing to be done fairly, transparently and impartially, with at least six widely advertised and publicly broadcast open hearings across the state, outreach to significant communities of interest for their input, acceptance of redistricting plans and supporting materials submitted by the public in person, by mail or online, posting for public comment for at least seven days any final map

–Require any map adopted by the commission to give racial and language minorities an equal opportunity to participate in the political process and not dilute or diminish their ability to elect candidates of their choice; keep communities of interest within the same district to the maximum extent and respect the  geographic integrity  of municipalities and counties, and maximize the number of politically competitive districts

–Require A super majority of nine votes for adoption

–Exclude from the commission current elective officeholders at any level of government, except school boards, as well as political party officers, employees and consultants and anyone who has run for federal, state, county or municipal office as a Democrat or a Republican during the previous three years, and registered lobbyists  in NJ, and also immediate family members of the Governor, a state legislator or member of Congress.

–Prohibit commission members from running for office, or serving as an officer, employee or consultant to any state Democrat of Republican legislative office or individual NJ legislator, or registering as a lobbyist in NJ for 3 years following appointment to the commission

As stated in the Coalition’s July 16 letter, its proposal “would improve the independence of the Apportionment Commission and give New Jerseyans a redistricting process that is inclusive, transparent, and community-driven, with fair line-drawing standards similar to the ones states across the country have adopted as part of their redistricting reform efforts.”

The Coalition had put forth essentially the same reforms in September 2019, announcing them at a press conference, but nothing came of it.  The renewed proposal seems to have been met with a similar lack of action. As of August 22, no redistricting bill or resolution has been introduced in the New Jersey Legislature.

Last week, an op-ed on the subject from the NJ Institute for Social Justice was published by NJ Spotlight.

Other States  

As mentioned above, only one other state, Virginia, has its own legislative races in 2021 and thus could face a similar time crunch if the Census data arrive late. Virginia too has a constitutional amendment to its redistricting process on the November ballot.  Unlike New Jersey, however, Virginia is not seeking to extend an outdated map or otherwise deal with a one-time Census delay but would provide substantive reform.

Its current redistricting process is even more politicized than New Jersey’s. Its General Assembly draws the maps for both state legislative districts and Congressional ones, subject to veto by the governor. This fall, Virginia voters will get to choose whether to shift both of those tasks to a 16-member bipartisan commission comprised of eight legislators and eight citizens, divided evenly between the two major parties. A super majority would have to approve a map, which would then go to the Legislature for approval, with the state Supreme Court the ultimate arbiter in the event of an impasse.

The Virginia proposal falls well short of the Fair Districts reforms as well as those being enacted in other states. But it at least makes sense as a constitutional amendment, in that it does not impose a permanent and overblown response to a one-time delay and it does improve the process. Virginia will presumably deal with any Census delay when and if it happens, probably via a statutory fix or a court order rather than a lasting revision to its foundational document of governance,

Redistricting reform has been a growing trendin recent years around the country as states seek to make the redistricting and apportionment processes less politicized and give the public more of a say.  The gold standard is probably California, which has a 14-member commission–five each of Democrats and Republicans plus four independents–all of whom are chosen though a public application process that looks for relevant analytical skills, ability to be impartial and appreciation for California’s diverse demographics and geography and screens for conflict of interest. In drawing the map, the commissioners are not allowed to favor any incumbent, party or candidate.

Other states that have adopted substantive reforms or are in the process of doing so include Colorado, Michigan, New York, Pennsylvania and Washington.

In contrast, NJ, which needs and supports reform, gets ACR188/SCR123.

What makes it even worse is that this is the second time in two years that state legislators have attempted to amend the constitutional redistricting provisions without appearing to put forth a good faith and considered effort at real reform.

In 2018, Democrats sought to pass SCR152/ACR205, which would have increased the size of the commission from 10 to 12 members, two of whom would have to be members of the public, and shifted most of the appointment power to the four legislative leaders by reducing the role of the state party chairs who now wield all of it. At least four members would have to be sitting legislators and the Chief Justice would appoint the 13th, tiebreaker member at the start of the process rather when after stalemate arose.  The 2018 measure had some good points but was widely seen as designed to lock in the partisan advantage enjoyed by Democrats.  It would have conditioned  certification of a final map on the establishment of districts that enhance “competitiveness by ensuring that at least 25 percent of all districts are more favorable to either major political party by no more than five percentage points of the average Statewide percentage of the combined two-major-party votes received in all Statewide general elections by that party over the preceding decade” for the offices of President, U.S.  Senator, and Governor.

Further, it was also seen as a power grab by Senate President Stephen Sweeney because it would have enhanced his influence at the expense of Governor Phil Murphy, a frequent antagonist because Murphy ally John Currie, the Democratic state party chair, would have lost much of his appointment power.

The timing was also problematic because the 2018 measure was put on the fast track right after Thanksgiving and the requisite public hearing was held on December 13, a time of year when many people are distracted by holiday celebrations and preparations. On top of that, the Senate and Assembly hearings were held simultaneously, making it nearly impossible for the many who opposed the amendment to speak at both, though some tried. Nevertheless, in both committee hearings, Republican opponents were joined by a wide array of liberal, good government and other groups who thronged the hearing room to speak out against the amendment, which was pulled a few days later.

NJ Appleseed also took a position against it.

Now than two years later, having done nothing to advance meaningful redistricting reform in the interim, the Legislature has responded to a one-time (and as yet uncertain) Census delay, by rushing to change the Constitution in a way that will deprive the NJ electorate of an updated map for two years and make it necessary to use an old map any time Census data arrive later than February 14.

Where We Are Now

The door-to-door Census counts began earlier this month and was supposed to continue until October 31.  On August 3, however, the Census Bureau announced that it would end all counting efforts, including field data collection, by September 30.  The ostensible reason was so that it could start processing the data in an effort to meet the statutory deadline of December 31 for delivery of the results to the President.  Whether or not it achieves that aim,  it is now less likely that the data will be delivered “late” or that it will be delivered late enough that it cannot be addressed by other, less drastic means than a constitutional amendment.

The same announcement indicated that the Bureau is working on meeting the requirements of a July 21 Memorandum from Trump that prohibits inclusion of “illegal” i.e., undocumented, aliens in the apportionment basis, contrary to settled law and longstanding practice. In addition, the Bureau, forbidden by the U.S. Supreme Court from including a question about nationality in the Census, has indicated it will nonetheless be trying to ascertain who falls into that category though information obtained from other federal departments and agencies, which are required to provide it under Executive Order 13880, issued on July 11.

The shortened time for counting already meant there would be an under count, especially in the urban, lower income and immigrant communities that rely more heavily on the field collection.  That problem will be exacerbated by the exclusion of undocumented immigrants. If NJ voters approve the amendment this fall, when we finally do get around to holding elections based on the new map in 2023, we will likely still not have the representative map that true democracy demands.

 

 

 

 

 

 

 

 

 

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