KARCHER v. DAGGETT
Democrats in control of the New Jersey Legislature designed a plan for congressional redistricting in the state which the outgoing Democratic governor signed into law. Even though the district populations differed by less than one percent from each other, they were clearly drawn to maximize Democratic power in the state.
Did the gerrymandering in the reapportionment plan violate Article I, Section 2 of the Constitution?
Legal provision: Article 1, Section 2, Paragraph 1: Composition of the House of Representatives
Even though the population differences in the districts were slight, the Court held that they were unconstitutional because they "were not the result of a good-faith effort to achieve population equality." Justice Brennan upheld past Court decisions (Kirkpatrick v. Preisler, 1973, and Wesberry v. Sanders, 1964) and argued that relying on a strict numerical standard of populations to assess district equality would be misguided.
ORAL ARGUMENT OF KENNETH J. GUIDO, JR., ESQ. ON BEHALF OF THE APPELLANTS
Chief Justice Burger: We will hear arguments first this morning in Karcher, Speaker of the New Jersey Assembly against Daggett.
Mr. Guido, you may proceed whenever you are ready.
Mr. Guido: Thank you, Your Honor.
My name is Kenneth J Guido, Jr. I represent the New Jersey Legislature and the Democratic members of Congress in this case.
This case is an appeal from the judgment of a divided three-judge district court in New Jersey, which struck down a congressional reapportionment plan enacted by the New Jersey legislature.
On January 19, 1982 New Jersey enacted a reapportionment plan for the election of United States House of Representatives with a deviation that falls within the statistical imprecision of the census data.
The plan in accordance with the notification from the Clerk of the House of Representatives based on the 1980 decennial census data reduced the number of districts from 15 to 14.
The plan as enacted creates 14 districts with an average population deviation of 0.135 percent and a maximum deviation between the smallest and largest districts of less than 0.7 of one percent.
The Legislature's criteria for redistricting was first numerical equality.
The leadership agreed that no plan would be considered with deviations over one percent and that lesser deviations would be sought.
Additional legislative criteria which was to be secondary to population equality were to protect minority interests by not unnecessarily diluting black votes particularly in the tenth or the Newark district.
The others were to preserve the cores of existing districts as much as possible for all members of the Legislature and to preserve municipal boundaries, which, in New Jersey because there are so many of them, are small enough to be building blocks for reapportionment purposes.
Plaintiffs, including all of the incumbent Republican members of Congress, on February 2nd and 9, 1982 brought suit to declare this statute unconstitutional because they believed other plans submitted to the Legislature would have reduced the variation between districts to even lower levels than the 0.7 of one percent in this case.
The cases were consolidated and submitted on depositions affidavits, and exhibits without trial upon the agreement of all parties to this action.
On March 3, 1982, the three-judge district court by a divided vote declared the statute unconstitutional.
The Court read Kirkpatrick and White, the decisions of this Court, as requiring any legislatively drafted congressional redistricting plan to be held unconstitutional if there existed the possibility that a plan with a smaller deviation of census population might be developed.
The Court concluded that such a possibility existed in this case and struck down the statute.
In doing so, the Court failed to consider the problems undisputed in the record with each of the plans rejected by the Legislature.
The Court also gave little, if any, consideration to other criteria such as preventing the dilution of minority voting strength in certain districts.
The Court concluded that preventing racial dilution did not justify the deviations because the district with the largest black vote, District 10, was not one of those with the highest deviation.
And, finally, the District Court rejected the Appellants' argument that the as nearly as practicable standard of Kirkpatrick and White is satisfied when the population deviation is even less than the statistical imprecision of the census.
Unidentified Justice: Do we really know what the statistical deviation is on variance from the census figures?
Do we really have anything to go by?
Mr. Guido: What we have in this case is that we have the statement of Dr. Trussell who is a demographer at Princeton... an expert demographer... and a noted authority on the census.
In fact, he participated in all of the studies that the census has.
Unidentified Justice: It was my understanding, though, that there was no real consensus if you will, on what the most recent census variation might be and if there is such a variation people have spoken in national terms which would not necessarily focus it on that--
Mr. Guido: --That is right.
Dr. Trussell is the only one who has focused that on districts as small as congressional districts or at the state level.
If I may return to my argument... The... Circuit Judge Gibbons dissented.
He concluded that where the deviation between the districts is less than the recognized margin of error a good faith effort on the part of the Legislature to achieve numerical equality has been shown as a matter of law.
And, courts in such situations should not substitute their judgment for that of the legislature.
The Appellants on March 8 filed a notice of appeal and applied for stay of the judgment pending appeal to this Court.
On March 15, Justice Brennan stayed the District Court's judgment.
As Justice Brennan recognized in granting Appellants' application for a stay, this appeal presents the question whether the proper interpretation of this... what are the proper interpretations of the standards laid out in Kirkpatrick v. Preisler.
Do they require absolute equality, or do they allow for some latitude given the arguable statistical insignificant variance argued in this case?
In this case, the essence of what we are arguing about is whether a variance of less than 0.7 of one percent is not good enough to satisfy the requirements of Kirkpatrick, Wesberry and White.
Unidentified Justice: --Mr. Guido, what does that 0.7 of one percent translate into in terms of people?
Mr. Guido: In terms of people it translates into a deviation of approximately, I think, 3,551 people between the largest and the smallest.
That is much different than in the figures that were in Wesberry, for example.
In Wesberry it was 140 percent deviation or 551,000 people.
In Kirkpatrick, the deviation was 5.97 percent, or 25,000 people.
In White, it was 4.13, or 19,275 people.
The deviations in this case are less than the deviations in 11 other plans adopted in other states and fall within the range of, I think, approximately five other states.
At the outset, I think it is important to focus on the appropriate standard of review in this case, because the Appellees here and two members of the District Court below interpreted the standards of Kirkpatrick and White to mean that a redistricting plan adopted by a state legislature is automatically unconstitutional no matter how low a deviation it contains as long as it is possible to conceive of a plan with a lower deviation.
This is true, they argue, no matter what flaws there might be in the other plans, and no matter what the statistical imprecision of the underlying census data may be.
In reaching this incongruous result, the Appellee has ignored the admonition of this Court in White that from the beginning we have recognized that reapportionment is primarily a matter for legislative consideration and determination.
As this Court clearly stated, legislatures have primary jurisdiction over legislative reapportionment.
And, districting inevitably has sharp political impact, and inevitably political decisions must be made by those charged with the task.
In balancing the commands of the one man-one vote rule of this Court against the requirement of the primacy of the legislature, this Court has evolved a pragmatic case-by-case approach in litigating these issues.
In Wesberry, it said,
"as nearly as is practicable, one man's vote in a congressional district is worth as much as another's. "
And, in elaborating on this standard this Court in Kirkpatrick rejected the fixed percentage formula.
Consequently, as this Court concluded in White, congressional districts pass constitutional muster if they are as mathematically equal as is reasonably possible.
In reading through those cases, the Court has focused on a number of factors in applying these standards.
The first is the magnitude of the deviation.
The Court has spoken in Kirkpatrick of markedly reduced deviations.
In White, it talked about grossly out of proportion.
The Court has traditionally looked at the accuracy of the data relied upon in drawing the plan.
In Kirkpatrick at page 529 the Court mentioned the fact that the accuracy of the data can be a factor to be taken into consideration.
And, on page 22 of our brief, note 17, we point out that the Court in Mahan and in Burns v. Richardson recognized that there may even be situations in which the census data does not have to be used because of problems of accuracy.
The third factor the Court has looked to in determining whether a plan meets constitutional muster is the extent to which the challenged variances fall within the range of what other states have done.
I have just pointed out to you where the statute challenging this plan falls with regard to other states.
Additionally, the fourth factor has been the availability of acceptable alternatives, which we will address in a minute, and the extent to which there exists legitimate justifications for the deviations.
In all of the cases that this Court has decided since Baker v. Carr, it has never stricken a plan with a variance as low as in this case.
As I said, the variances in this case are no where near those of Wesberry, Kirkpatrick and White.
Unidentified Justice: But wasn't it the position of the Court that there were other plans with a still smaller variation?
Mr. Guido: That is correct, Your Honor, but what we will address is the question of the inadequacies of those plans.
If you wish me to address that now--
Unidentified Justice: I am patiently waiting.
Mr. Guido: --While reviewing court drawn plans this Court holds to a higher one vote-one man standard than legislatively drawn plans, this court has upheld plans with similar deviations to that plan challenged in this action out of deference to the legislature although it holds court drawn plans to a higher one man-one vote standard.
Significantly, the plan approved after this Court's decision striking the statute in Kirkpatrick contained a deviation of 0.629 percent.
In essence, the same deviation challenged in that action.
That occurred in the case where the Court imposes a higher standard under the one man-one vote principle on courts when they draw the plans than on legislatures.
However, it sustained a plan with a similar deviation.
The other factor that the Court has considered is the precision of the data that is to be relied upon.
As we point out in our brief, the record in this case reveals that the census count was not perfect.
It is not an entirely accurate enumeration of the population.
Its imprecision is due not only to the undercounting of illegal aliens as the Appellees contend, but also to the undercounting of other groups, people under 35, people over 65, immigration outmigration and certain other groups.
Unidentified Justice: Is there proof to that effect in the record?
Mr. Guido: Pardon?
Unidentified Justice: Is there proof to that effect in the record?
Mr. Guido: In the record, yes.
Dr. Trussell's statement supports that and all of the attachments that are included with that include all of the studies that have been done by the Census Bureau on that issue.
They are all exhibits as attachments to his statement--
Unidentified Justice: And, yet, you structure your own apportionment on the census figures?
Mr. Guido: --On the census figures, that is correct, Your Honor.
Since those were the only figures that were available and the Legislature of New Jersey attempted to get as close to zero as possible, even in recognition that there was an error factor in those figures, and in recognition of the fact that there was no way, as a practical matter, to make corrections for those deviations.
So, what we are arguing here is even though that cannot be done, this Court as a matter of constitutional law should recognize that it should not require something to be done by the Legislature that is essentially physically impossible.
They took the best available data that was available to them.
They used that data.
That data has imprecision and is now being attacked because they did not come close enough to zero when, in fact, no one knows that if we drew a plan that had absolutely zero census population deviation that it would not be in reality a plan with a substantially higher deviation than the 0.7 of one percent that is in this case.
Unidentified Justice: Is there any finding by the District Court that it did or did not credit Mr. Trussell... Dr. Trussell's testimony?
Mr. Guido: The only... In the District Court the dissenting judge relied upon that information.
What the District Court said with regard... The two other members of the District Court said with regard to that is that essentially here this is the argument that had been made in Kirkpatrick and earlier cases, and, therefore, as a matter of law we are disregarding this argument.
We did not make--
Unidentified Justice: Counsel, have you finished answering that question?
Mr. Guido: --Yes.
Unidentified Justice: I wanted to ask you another one.
Which of those districts is contiguous only for yachtsmen as the dissenting judge suggested?
Mr. Guido: I think it is the second one.
It seems to be down into this area.
It also turns--
Unidentified Justice: I did not quite hear you--
Mr. Guido: --Because of the nature of that district, if you look at it and if you look at this--
Even if you made that district square, you would still have to get across that spit by being a yachtsman.
It turns out that the shape--
Unidentified Justice: --Are there two bodies of water that have to be crossed?
Mr. Guido: --Pardon?
Unidentified Justice: Are there two bodies of water or only one?
Mr. Guido: It would have to be... There is one body of water there.
Yes, that is my understanding.
Unidentified Justice: What is the body of water... body of water?
I will ask Mr. Hellring.
Mr. Guido: The reality is that even if we drew the district as square, you would still have to at certain times be a yachtsman to cross it.
Unidentified Justice: Does any district prior to 1980 have that problem?
Mr. Guido: At that time?
Unidentified Justice: Prior to this redistricting.
Mr. Guido: I do not know the answer to that, Your Honor.
I do not think that that was the case prior to 1980, except for the spit that is referred to by the dissenting judge--
Unidentified Justice: How many of those districts have any genuine community of interest?
Mr. Guido: --In all of these districts?
Unidentified Justice: How many of them have genuine community of interest either economic, social or political?
Mr. Guido: Well, Your Honor, it is my understanding and Justice Brennan is probably much more familiar with it... with the State of New Jersey than I am--
Unidentified Justice: Well, I think, in Kirkpatrick--
Mr. Guido: --but the basic goals in this case were to maintain essentially the core districts from the 1970 census and that that essentially reflected the communities of interest at that time in recognition of the fact that there needed to be changes because there was a loss of a district.
All of those factors, Your Honor, I think, as I listed in the... at the beginning, maintaining the core districts meant that there was an attempt to preserve the communities of interest that had been reflected in the 1970 reapportionment as drawn by the District Court previous to that time.
Unidentified Justice: --Mr. Guido, is that green district that is by Asbury Park and Long Branch, is that all one district?
Mr. Guido: This green district is all one district.
Unidentified Justice: But the same district isn't extended up to the light green north of the body of water?
Mr. Guido: It is different than this--
Unidentified Justice: There are numbers on that.
Yes, but I cannot see the numbers.
Number eight is the one.
Mr. Guido: --This here is all one district.
Unidentified Justice: Thank you.
Mr. Guido: And essentially one of the things I think you have to understand is if you look back at the appendix, you look at this map and you say, well you look at these districts and they have these sort of puzzle kind of shapes.
The reality is that in New Jersey the building blocks that were used were municipalities because of the community of interest concern and in putting together those building blocks in such a way.
There were sufficient numbers of them so that you could satisfy that population equality requirement and as a consequence because you use those boundaries you end up with a map that looks like this.
At one time I went back and looked at all of the maps that had been drawn over time in New Jersey and I can tell you that if anyone thinks that this is a strange map, there have always been strange maps in this regard in New Jersey, primarily because municipalities were used as the building blocks; two, is that you have a state with an irregular shape; and three, with a very high population.
So as a consequence, you end up with a map that--
Unidentified Justice: Did Kirkpatrick say that community of interest was relevant at all in cases of this kind?
Mr. Guido: --In Kirkpatrick, no it did not, Your Honor.
In fact, we are not even arguing that communities of interest is relevant.
What we are arguing here is that essentially the statistical imprecision of the census data was such that it justifies holding that this plan was the functional equivalent of zero, and we are arguing that if the minute deviation in this case is not justified by an acceptance of the statistical imprecision, that the concern for the minority interest is sufficient to justify that deviation.
We are arguing--
Unidentified Justice: But Judge Gibbons said that minority interest was pretextual in this case, didn't he?
Mr. Guido: --Your Honor, what the Court said in this case about the minority interest was that essentially there was no connection... they could not find a linear connection between the tenth district and the fourth district that concerns the minority interest was affected and the deviations that were in this case.
As a practical matter, when you look at this map, it is impossible after the fact to construct the cause or connection between minority interest and the interest here.
The only thing that you can do to make a judgment about whether the Legislature appropriately took into consideration minority interest was whether the plan that was adopted by the Legislature better met the minority concerns than the other plans before the Legislature.
As we have argued in our brief, we have demonstrated that the plans that were relied upon by the District Court, two of which did not even exist at the time that the statute challenged in this case was adopted, did not meet the interest of minority interest and that Mayor Gibson who was the major minority leader in the state was actively lobbying for the statute passed in this case and actively lobbying with the legislators against this plan, and, in fact, no plan would have been adopted without the vote of minority members of the Legislature, and it was this plan that they felt best represented their interests.
Unidentified Justice: Mr. Guido, I want to be sure about one thing... I believe Justice Powell referred to it... all three members of the panel below agreed on the pretextual aspect of the preservation of minority--
Mr. Guido: All three members on the panel below rejected the argument.
Unidentified Justice: --All three agreed it was pretextual?
Mr. Guido: I remember one of them using the word pretextual, Your Honor, but I would concede that point for purposes of the argument, and that the basis that they did say was is that they said no one could develop a linear connection between the deviations and the concern for minority voting strength in this case.
Yes, Your Honor, that... And, that we believe that that conclusion that there was a requirement that in a reapportionment case especially with the deviation of 0.7 of one percent is a requirement that leaves no deference to the Legislature as required by this Court in Upham and in White.
And, if there is to be any deference to the Legislature the test should be, take a look at the plans that were before the Legislature and compare those to the plan that is before that is being challenged to decide whether or not that interest was adequately--
Unidentified Justice: May I ask one question about the lack of compactness of the districts that Justice Powell eluded to with District 3, I guess it is.
It is kind of irregularly shaped.
As I remember the Rutgers professor's submission, he included compactness as one of the tests of whether the plan was a satisfactory one.
Did the Legislature in this drafting this plan give any attention at all to the desirability of compact districts?
Mr. Guido: --No, what the concern was here was, as I pointed out at the outset--
Unidentified Justice: Well, I understand there were other concerns.
Did they include--
Mr. Guido: --Did they include compactness--
Unidentified Justice: --that as of any value at all to that?
Mr. Guido: --In my discussions with them, there were some concerns, but that concern was down the line.
There were some people who did mention the question of compactness, but as I said, what it was was concern about the preservation of municipal boundaries, core constituencies, fairness to minorities, and population equality.
Unidentified Justice: Well, also I suppose, preserving the majority control of the Legislature?
Mr. Guido: I would like to save a few minutes for rebuttal, if I might.
Unidentified Justice: May I ask if that was admittedly one of the concerns?
Mr. Guido: What, compactness?
Unidentified Justice: No, preserving majority control of the maximum number of districts possible?
Mr. Guido: Oh, democratic majority control?
Unidentified Justice: Yes.
Mr. Guido: There was some concern by some members that there be fairness to all of the incumbents, and, in fact, there were discussions with one of the republicans who was very concerned about his vulnerability.
But, there also was some concern in drafting the plan about preserving some of the seniority of democratic members of the Legislature.
Chief Justice Burger: Mr. Hellring.
ORAL ARGUMENT OF BERNARD HELLRING, ESQ. ON BEHALF OF THE APPELLEES
Mr. Hellring: Mr. Chief Justice, and may it please the Court:
In striking down the statute which is represented by this exhibit which was received in evidence by the District Court, the Court below said that since there were a number of other plans available to the Legislature including several which had been introduced as bills which had smaller population deviations, and since this redistricting statute was not the unavoidable result of a good faith effort to arrive at the smallest deviations in population, and since the record contained no justification for the population deviation contained in this statute, that it must be declared unconstitutional under the principles enunciated by this Court in Wesberry and its progeny Kirkpatrick and White.
The record contains no suggestion of any good faith effort or indeed any effort to consider other plans with smaller population deviations.
There was a justification argued which was made up later after the suit was started in which it was suggested by the Appellants that they had some minority adjustment problems with respect particularly to one of the districts, and the three judges on the panel below found as a fact that this was a phony, that it was a pretext, that it was an attempt to use a minority argument in order to justify something which had nothing to do with a minority issue and to use improperly and in an insulting manner the problem of minorities in order to justify a statute which was the result of bad faith.
Looking at this picture of the redistricting suggests the word gerrymander.
Gerrymander has become a term of obloquy.
Since I was in my earliest days in school, I remember being taught about gerrymander.
Why do we not like gerrymandering?
Why did the dissenting judge below, Judge Gibbons, say that as a citizen of New Jersey, he was disturbed by looking at this exhibit.
Because gerrymandering suggests the use of base motives.
It suggests that a citizen who votes is wasting his time because his vote has been snicked around in such a way that it will count for very little.
Unidentified Justice: Mr. Hellring, how would you define gerrymandering as you pronounce it?
Mr. Hellring: I would suggest looking at this map and saying that twisting district number seven in such a way that it has come to be known as the fishhook district is gerrymandering.
That having another fishhook in reverse form on the other side--
Unidentified Justice: Well, you might call number four a running back district, too, I guess.
But, what does that amount to for purposes of our cases.
Our cases do not say flatly that you cannot have a district shaped like a fishhook or like a running back.
Mr. Hellring: --In answer to Your Honor's question, I think this is what it means under the cases decided by this Court.
This Court has thus far said, we will avoid the question of whether gerrymandering in any form and to any extent is by itself unconstitutional.
Wells said it on the same day as Kirkpatrick was decided.
Justice Brennan said, we are not taking a position one way or the other.
There have been other instances in which that issue has been avoided.
It need not be dealt with in this case in order to sustain the decision below on a constitutional basis, but it fits in any way in the following manner.
Kirkpatrick says that a population deviation is no good if it is the unavoidable... is no good unless it is the unavoidable result of a good faith effort to arrive at the lowest possible population deviation.
This shows lack of good faith because the gerrymandering is so extreme, so tortured that it is one piece of evidence, not necessarily absolutely conclusive, but surely evidence of bad faith.
Unidentified Justice: Does gerrymandering mean that the district has been drawn for ulterior political motives?
Mr. Hellring: Yes, it does.
We respect straight lines.
Crooked lines we do not like.
The people who do the voting find that crooked lines, which are tortured in such a way to embarrass two congressmen into running against each other, to put the homes of two congressmen in the same district by lording a giggum.
Unidentified Justice: Is that factual?
Mr. Hellring: It is, and it is in the record.
This represents a degree of gerrymandering which is so extreme and so far different from anything that has happened before in New Jersey that itself is evidence of bad faith.
Now, I have to talk about bad faith--
Unidentified Justice: You don't have any cases in this Court that invalidated gerrymandering of the kind you have just described?
Mr. Hellring: --We have none.
This Court has avoided the question.
I am not suggesting--
Unidentified Justice: We have not avoided... We have not always avoided the question of a gerrymander.
We have sustained a political gerrymander in Gaffney against Cummings.
Mr. Hellring: --Well, but in that case you were dealing with not a congressional redistricting--
Unidentified Justice: I know, but the way you talk it would make no difference whether it is state or federal.
Gerrymander is bad.
We like straight lines not crooked lines and drawing districts for political purposes is a base purpose.
Mr. Hellring: --Justice White--
Unidentified Justice: Yet, Gaffney against Cummings held quite to the contrary.
Mr. Hellring: --Not in a congressional redistricting case, and this Court has expressed repeatedly the importance of maintaining--
Unidentified Justice: So, you do not think that the political gerrymandering... You concede the political gerrymander in Gaffney against Cummings did not violate the Equal Protection Clause?
Mr. Hellring: --Your Honor, please, I am not arguing that case.
This is a congressional redistricting case--
Unidentified Justice: Are you making a constitutional argument?
Mr. Hellring: --No.
I am making an argument under Kirkpatrick.
Unidentified Justice: Well, are you making a constitutional argument or a statutory argument?
Mr. Hellring: I am making an argument--
Unidentified Justice: Well, is it constitutional, or not?
Mr. Hellring: --It is not a constitutional argument.
Unidentified Justice: What is it?
Mr. Hellring: It is an argument that under Kirkpatrick--
Unidentified Justice: What is Kirkpatrick?
Mr. Hellring: --Kirkpatrick is a statement by this Court on the meaning of Article I, Section 2 of the United States Constitution when it says that the members of the House of Representatives shall be elected by the people.
Unidentified Justice: Well, you are making a constitutional argument.
Mr. Hellring: --Well--
Unidentified Justice: But not an equal protection argument?
Mr. Hellring: --Well, if Your Honor, please, I am not making an equal protection argument, and my argument about gerrymandering is a constitutional argument only in the sense that it relates to the issue of good faith as that is given to us by the United States Supreme Court in testing... for the purpose of testing whether a given population deviation in a given statute is or is not the unavoidable result of a good faith effort to arrive at the smallest possible population deviation.
And, I would suggest, Justice White, that if this Court is ready to deal with gerrymandering all by itself as a constitutional issue and sees the necessity of doing so in this case, that it is a perfect case for you to do it in.
Unidentified Justice: What if you achieved absolute equality... you took the very lowest plan there was and you still had fishhook and running back districts and they still were in that form for political purposes--
Mr. Hellring: But, you would not have.
Mr. Reock suggested a plan more than six months before this one was adopted in which there was not any such gerrymandering, and it was based solely on the problems of population deviation without doing any harm to compactness or state interest or anything else.
And, it did not put congressmen running against each other or anything else.
But, if Your Honor please, I am not suggesting that it is necessary for this Court to find gerrymandering as a concept to be an unconstitutional thing.
That may come in a later case.
If you want to do it in this case, it is a good case to do it in, but you do not need to.
This case can be well determined and upheld and affirmed solely on the basis that the population deviation here was not the unavoidable result of a good faith effort to arrive at the smallest population deviation.
And, if Your Honor, Justice White, means to suggest that the smallest population deviation is not necessarily the most desirable, then I think the Court would have to be ready to change its ideas about one man-one vote.
Unidentified Justice: --Change its ideas if Kirkpatrick and White against Weiser is supposed to be read that way, they ought to cut into those two cases.
Mr. Hellring: Well, may I then suggest, Your Honor, that if there is any addition to be made by this Court in this case by way of further explanation of the meaning of Article I, Section 2 by way of further discussion as to what Kirkpatrick may not have said enough times and what Your Honor, Justice White, said in White against Weiser was not said enough times, then it seems to me that this Court should take the occasion to reemphasize the doctrine of one man-one vote.
The cry of happiness and joy and respect that rose up from all parts of this nation at the time of Baker against Carr and Wesberry is one of the most stunning juridical acts in this century when the idea of one man-one vote was established.
This is surely not the time to go backwards on that--
Unidentified Justice: You are not saying that that was unanimous, are you?
Mr. Hellring: --Pardon me, sir?
Unidentified Justice: You are not saying that that was unanimous all over the country, are you?
Mr. Hellring: Your Honor has me there.
As a matter of fact, I know it was not even unanimous on this Court.
A great Justice, Mr. Justice Harlan did not agree with it.
Another great Justice, your teacher, Mr. Justice Brennan and mine, Mr. Justice Frankfurter, thought it was a silly thing to get involved in the political thicket of it.
I am well aware that great principles are not necessarily brought to light on a unanimous basis.
And, I do hope that that great principle will not be injured by this Court now.
Three thousand six hundred seventy-four people care whether it is one man-one vote particularly in the fourth district where they have 2,261 too many and in the sixth district where they have 1,500 or so too few, totalling a difference between them of 3,674... that is people... and, in a State of New Jersey where in the last gubernatorial election the present governor sits because he had a plurality of 1,700 votes.
Unidentified Justice: May I ask you--
Mr. Hellring: And that is in the whole state.
Unidentified Justice: --May I ask you two questions about your gerrymandering argument and the base motive that you described to the dominant party in trying to have as many districts of the same political flavor.
Supposing you had two plans with equal population disparity, equally satisfied the one person-one vote rule, and equally compact, but you could demonstrate by evidence that the majority selected one because they thought they would elect more of their fellow Republicans or Democrats by that plan rather than the other, and they were frank about it.
They said we are in control we might as well take advantage of our control.
Would you say that was unconstitutional?
Mr. Hellring: I would not.
That would be a constitutional act, and it should not be struck down under Kirkpatrick or White or Wesberry.
Unidentified Justice: Let me give you a second case, then.
Supposing you had this plan here and the Court holds it unconstitutional, so you go back to the drawing board.
And the Legislature goes back and is able to achieve population equality to the very last digit by doing some more gerrymandering, and that then comes back with no numerical problem but the kind of distortion or even more severe distortion we see here.
Would you say that was constitutional?
Mr. Hellring: Well, first of all--
Unidentified Justice: In the second you say the reason is the same as in my other case?
Mr. Hellring: --Yes.
That would be a second effort by the Legislature, not by the Court?
Unidentified Justice: That is right.
Mr. Hellring: Well, in such a case where the population deviation was zero, then it should be held constitutional and not struck down unless this Court is ready to say that we will consider whether gerrymandering alone in its most extreme form is unconstitutional.
Unidentified Justice: I want your answer.
I do not want you to rephrase my question.
Mr. Hellring: But under the law that exists--
Unidentified Justice: You keep rephrasing my question.
Mr. Hellring: --Under the law that exists today, it is a constitutional act.
Unidentified Justice: You say it would be?
Mr. Hellring: Yes.
Unidentified Justice: And, you think that is what Gaffney decides?
Mr. Hellring: Well, as to reapportionment it is certain--
Unidentified Justice: There there was an attempt to achieve rough parity between the parties, not have one exploit its dominance.
Mr. Hellring: --Yes, and I think that is, while the facts are different that is generally the concept of Gaffney, which Justice White mentioned.
Unidentified Justice: And, would you describe Gaffney as a gerrymander.
I notice he does, but would you have?
Because you were the one who brought the term up during your argument.
Mr. Hellring: Yes.
I do not remember the exact torturing that was done in that... the exact amount of gerrymandering that was done there, but I would not, based upon my recollection of that case and the description of what--
Unidentified Justice: The objective there was to achieve rough parity between the parties.
Mr. Hellring: --Yes.
No, I would not consider that gerrymandering.
Unidentified Justice: But the lines were drawn with political motivations, isn't that right?
Mr. Hellring: Well, if Your Honor, please, political motivations--
Unidentified Justice: Weren't they?
Mr. Hellring: --Yes, and political motivations are nothing that I--
Unidentified Justice: Well, we are not arguing about what a gerrymander is.
Mr. Hellring: --Well, I did not say that a gerrymander was something which was describable purely because it was something done for political motivations.
We have political motivations all day long--
Unidentified Justice: If it is done deliberately to make sure that a republican rather than a democrat is elected in this district, would you call that a gerrymander or not?
Mr. Hellring: --You see--
Unidentified Justice: Well, would you call it a gerrymander or not?
Mr. Hellring: --It depends upon what it did to the people.
You see, it is not--
Unidentified Justice: It made sure that democrats in the particular district were going to lose every time.
Mr. Hellring: --But, you see, if it twists and turns and squeaks and makes peculiar lines bad enough in order to prevent people in a certain section from having a chance to vote in the place where they have normally been voting solely to change the results and that is the purpose and that is the result, that is a sign of bad faith.
I do not say that it is enough for unconstitutionality.
Unidentified Justice: Your kind of gerrymander has to have the element of bad faith in it?
Mr. Hellring: No, it has to have the element of destroying what is normal for purposes which are bad.
Unidentified Justice: Well, Mr. Hellring, it sounds to me like your argument concedes that every party in power when drawing district lines can and will try to benefit its own party members in drawing those lines.
But, your concern is with the compactness or neatness of the lines that are drawn forming resulting districts that are more compact, is that right?
Mr. Hellring: Well, I would like to say it is all right--
Unidentified Justice: And, to what extent do we have to require compact districts?
Mr. Hellring: --I would like to say that I agree with everything Your Honor put in Your Honor's question, and I agree with almost all of it except the word "neatness".
I am not looking for neatness.
This is so--
Unidentified Justice: Are you looking for compactness?
Mr. Hellring: --Reasonable compactness... reasonable.
I am looking for something which is not so unreasonable--
Unidentified Justice: Is that a constitutional requirement in these redistricting... compactness?
Mr. Hellring: --Not yet.
This Court has never said that it is.
And, all I am arguing with respect to gerrymandering in this case before this Court today is that it demonstrates that there was no good faith effort by this Legislature to arrive at the lowest population deviation and that this was not the result... the unavoidable result--
Unidentified Justice: Well, let me ask you another question.
Suppose the Legislature had before it two plans with very minor population differences, one slightly higher than the other.
What possible justifications do you agree the Constitution would permit to be considered for the Legislature to adopt the plan with the slightly higher deviation and still be acceptable?
Our Court has suggested, for example, anticipated population shifts would justify it.
Mr. Hellring: --That was in Kirkpatrick.
Unidentified Justice: Our Court has suggested protecting incumbents as a possible justification.
Is there any other justification in your view?
Mr. Hellring: Well, I think there could be others.
None that have ever been suggested so far as I know have as yet been acceptable to this Court.
Unidentified Justice: Would you propose that any others should be?
Mr. Hellring: Compactness in the sense of avoiding extremes in gerrymandering, would be one.
Unidentified Justice: So, that it would be your view that if the higher deviation were more compact on the map that that would be a justification for the higher deviation?
Mr. Hellring: Based on degree.
If the degree of gerrymandering were very, very different, then I would say that would be an acceptable reason and an important reason.
Gerrymandering, of course, partakes of some of these other things that Your Honor referred to, such as avoiding contests between two incumbent representatives and things of that sort.
It is part of the seamless web of all of the reasons that go into the determinations made by a legislature.
Unidentified Justice: Is it your view that protection of municipal or district boundaries is a consideration that should permit a higher deviation.
Mr. Hellring: --It is, but I know that this Court has so far not accepted that as a valid ground.
I would urge it upon this Court, it is not necessary to argue that in order to win this case and have it affirmed by this Court.
But, the answer to Your Honor's question is yes, I would consider that to be a very important and valid consideration for a Court to take into consideration.
Now, Appellants have enjoyed in this case at all levels including this Court to talk about population deviations which are within the limits of the statistical imprecisions of the census which makes them equal to zero.
If that has any meaning at all, and I suggest it does not, then it can only mean that any population deviation which already is created by the Legislature in adopting a particular redistricting plan has got to be a much greater population deviation if you superimpose upon it and add to it the statistical imprecision of any census no matter what that statistical imprecision may be.
Now, if the statistical imprecision somewhere up on high in the omnipresent sky, which we do not know what it is, is less than 0.7 of a percent as the population deviation here is, then their argument falls for that reason.
But, if it is more, let's say if it is one percent, or one and one-half or as was largely studied eight or nine years after the 1970 census a statistical imprecision of two and one-half to 2.6 percent... 2.6 percent supposedly... If it is that high then you have to add about 12,000 to 15,000 people to the 3,674 people by which you already have a population deviation.
So, that this argument about population deviation within the confines of statistical imprecisions of the census is backwards because if you strive for zero population deviation it may very well be that because of the statistical imprecisions of any census in the nature of things, there would any way be some kind of a deviation.
But, why strive for anything different from zero?
If you strive for a one percent de minimus under the argument of statistical imprecision, then the cases before you will then say why not 1.3?
Why not 1.4?
Why one percent?
Why not one percent, two percent, three percent, four percent, six percent?
Where do we stop?
The right answer is one man-one vote.
Three thousand six hundred seventy-four is too many unless it is the result, the unavoidable result, of a good faith effort... a good faith effort, not this... on the part of a legislature in adopting a redistricting plan.
In this case there has been no showing of good faith.
The Court below annexed to its opinion what it called a remarkable document which was a letter from the Speaker of the Assembly to Dr. Reock of Rutgers University in response a few days after Dr. Reock sent his proposed lowest population deviation plan to all the members of the Legislature, he got a letter from Speaker Jackman which they recall... which they call a remarkable document, and which says, you are silly if you think that we are going to pay attention to population deviation as the main event.
We are realistic legislators and we know we have got the power now because we have got a democratic house and a democratic senate and a democratic governor, and we are going to get it before he leaves office, and on the day that the democratic governor left office, minutes before he left office, he signed this bill for the purpose of accomplishing the objectives which are described in Speaker Jackman's letter which is annexed to the decision of the Court below and which is before Your Honors.
This was coupled by the testimony of the majority leader of the Assembly who says, well, its population deviation is small.
That is an aspiration somewhere.
That is not the real thing we have got to consider.
A letter by another assemblyman to his constituents and to other important leaders in the state in his party saying, now this new statute that has been adopted, there is talk about changing it.
Let's get behind it because you know what it does for us.
Nevermind the population deviation question being at its lowest.
These are clear pieces of evidence in this record alongside of this map to show that instead of a good faith effort, there was a bad faith effort.
Chief Justice Burger: Do you have anything further, Mr. Guido?
Mr. Guido: Yes, I do, Your Honor.
Chief Justice Burger: You have three minutes remaining.
ORAL ARGUMENT OF KENNETH J. GUIDO, JR. ON BEHALF OF THE APPELLANT -- REBUTTAL
Mr. Guido: After listening to the Appellees' argument, I am a bit curious whether or not this case is about population equality or whether it is about gerrymandering or some sort of set of statutory standards about compactness or what.
There have been references to straight lines and crooked lines in the arguments of the Appellees that I would like to just address the Court to page 17 of the Joint Appendix to take a look at the lines that Mr. Reock's map, which was stressed so heavily, has... Those lines may not be schematic as these lines, but I think that if you look at all of the maps in the Joint Appendix you will see crooked lines and not what are traditionally compactness that you may find in other states because of the nature of the population and its distribution.
I would also like to address the question of partisanship that has been maintained here.
It is uncomparable within the record... I think it is at the appendix on page 83, paragraph 8 of Mr. Karcher's statement... which he says they were concerned with the preservation of cores of preexisting districts where practicable and the discussions in a November, 1981 meeting included discussions of various interests of incumbent congressmen both Republican and Democrat.
There is no finding in the District Court below that there was partisan gerrymandering in this case.
And, the record does not support any such claim.
There is no allegation in the complaint to that effect.
In fact, the election results belie any suggestion.
All incumbents but one were reelected in his district.
And, as the record shows, people were aware that the one seat that was lost could be attributed to Millicent Fenwick running for the Senate so that none of the incumbents would be hurt.
Everyone knew that some members of Congress would move because the district lines had to be changed because they wanted to be closer to their core constituencies.
That is what the record shows about partisan gerrymandering, which is allegedly the claim of bad faith in this case.
In addition, I think that the Court should recognize that this case is not a case about good faith.
It is about a good faith effort to achieve population equality.
The Appellees in this case have nowhere shown that even if partisan factors were at play here that they had any connection to the population variations that exist in this case.
And, as this Court has repeatedly stressed, most recently in Rogers v. Lodge and Mobile v. Boulden is that you can make some allegations about... you can make allegations about certain things, but you sure to better show the connection between that and the harm claimed.
And, the harm in this case--
Chief Justice Burger: Your time is--
Unidentified Justice: Just one very brief question on the compactness problem and the study, the Rutgers study that you called our attention to.
The professor has a table which he talks about the degree of compactness for each of his districts, is there anything in the record that tells us the degree of compactness of your districts?
Mr. Guido: --No, Your Honor.
And, the other thing is there are probably 15 definitions of compactness if you read the literature on reapportionment.
Chief Justice Burger: --Thank you, gentlemen.
The case is submitted.