On December 30, 2022, the New Jersey Globe published the following op-ed by Partners Matthew C. Moench and Michael L. Collins:

Opinion: The Need for a Redistricting Constitutional Amendment

By Matthew C. Moench and Michael L. Collins, December 30 2022 10:57 am

In the incoming 118th Congress, New Jersey will be represented by nine Democratic members and three Republican House members. This means our state’s delegation will be 75% Democrat, even though New Jersey Democratic congressional candidates only received approximately 54% of the 2022 statewide vote. This disparity is attributable in many respects to redistricting, which is the decennial process to redraw the State’s congressional districts.

New Jersey’s redistricting this past year made national headlines because of deeply troubling occurrences that were covered extensively by the New Jersey Globe and undermine the legitimacy of the current Congressional maps. We write to highlight some of the legal pitfalls we observe, as the only way to fix them is a constitutional amendment before redistricting is upon us once again in 2032.

Earlier in 2022, New Jersey’s Congressional Districts for the next decade were decided upon the determinative vote of tie-breaking member (and former state Supreme Court Justice) John Wallace. At a constitutionally-mandated public meeting, Wallace gave the following on-the-record rationale for his vote:

“In the end, I decided to vote for the Democratic map, simply because in the last redistricting map it was drawn by the Republicans. Thus, I conclude that fairness dictates that the Democrats have the opportunity to have their map used for this next redistricting cycle.”

In the minds of many, including ourselves, New Jersey’s redistricting decision by Wallace was reduced to an alternating possession arrow used in college basketball – not exactly what is expected from a tie-breaker.

Wallace also received support at taxpayer expense from Samuel Wang of the Princeton Gerrymandering Project at Princeton University. There has been extensive reporting by the New Jersey Globe that Wang and his staff did not act independently, and instead took steps favoring the Democratic Delegation, including leaking maps that the Republican Delegation provided to Wallace’s staff in confidence as part of negotiations.

Our firm served as counsel to the Republican Delegation, led by Chairman and now-Senator Doug Steinhardt. We filed the first-ever original jurisdiction complaint with the New Jersey Supreme Court challenging the redistricting decision. Regrettably for our clients, the Court dismissed the Republican Delegation’s lawsuit and allowed the Democratic redistricting map to stand for the next decade. In rendering this decision, the New Jersey Supreme Court made numerous holdings – which did not receive much public attention at the time – but may have consequences for future redistricting cycles.

First, the New Jersey Supreme Court held there is no judicial review to the Commission’s decision. It wrote that the Constitution “does not afford either partisan delegation a right to dispute or counter the independent member’s decision. The vote marks the end of a political process.”

Second, the New Jersey Supreme Court held that it lacked jurisdiction to invalidate the Congressional map, even when there were allegations that PGP breached confidentiality, contributing to a “tainted” process. The Court wrote this argument “f[ell] outside the Court’s limited scope of review in redistricting matters and therefore cannot prevail.”

Third, the New Jersey Supreme Court rejected claims that Wallace was conflicted because his wife made campaign donations to Congresswoman Bonnie Watson Coleman, one of the 12 incumbents whose Congressional district was redrawn under Wallace’s pivotal vote. To reach this conclusion, it held that the common law conflict-of-interest rules do not apply to redistricting commission members.

The Court’s holdings present troubling precedent for future redistricting efforts. With respect to the lack of judicial review, the Court’s decision means that even if the tie-breaker makes a decision that is on its face arbitrary and capricious, like we witnessed in 2022, the Court lacks jurisdiction to hear such a challenge. Taken to its logical end, if the tie-breaker publicly flipped a coin (which would have been arbitrary but fairer than Wallace’s alternating possession reasoning), there is nothing the Court can do about it. The same holds true for a Congressional map that may have been adopted under a “tainted” process with information leaked by the independent member’s support staff to the other delegation. Many other states have laws or constitutional provisions that give its courts jurisdiction to invalidate redistricting decisions suffering from such defects, and New Jersey would benefit from same.

The Court also held there are no common law conflict-of-interest restrictions applicable to the tie-breaker. Although the tie-breaker is admittedly selected between the finalists from both delegations, the Court’s holding – again taken to its logical end – means someone as conflicted as the spouse of a sitting member of Congress could serve as the tiebreaker and provide the pivotal vote on a Congressional map without there being any legal issue. New Jersey would benefit from better safeguards to provide confidence that the tie-breaking “independent member” is in fact independent.

We believe that this cycle’s flawed redistricting process – and the New Jersey Supreme Court’s essential holding that it lacked jurisdiction to remedy the flaws – demonstrates the need for redistricting reform. In its opinion, the New Jersey Supreme Court even mentioned that such change may be desirable, taking an opportunity to highlight other potential redistricting structures, such as independent redistricting commissions used in other states.

The Legislature has the ability to reform New Jersey’s Congressional redistricting process by proposing a constitutional amendment to the people that would reform the current partisan commission system. We hope the Legislature will begin a discussion and take meaningful steps to reform the redistricting process before it is upon us next decade.

Given the impact of redistricting, including the sheer partisan advantage it can provide one political party, it is essential that the public has confidence in the process that takes place each decade. That did not occur in 2022, but with the necessary steps taken by the Legislature and the people of New Jersey, it could occur next time around.

Matthew C. Moench and Michael L. Collins are partners at King, Moench & Collins LLP. The firm served as general counsel to the Republican Delegation of the New Jersey Redistricting Commission.