NJ Spotlight's Colleen O'Dea reports

Democrats in the Legislature are moving ahead with a proposed constitutional amendment that would delay the redrawing of district boundaries by two years, a plan unpopular among a number of progressive groups and Republicans.

The Assembly Judiciary Committee has scheduled a required public hearing on the amendment, which must ultimately be approved by voters, for Monday at 10 a.m. Both legislative houses need to move quickly to approve the measure with 60% majority votes by Aug. 3, the deadline for placing a question on the November ballot.

It’s Democratic lawmakers who are most supportive of the change embodied in ACR-188, which would push the redrawing of the state’s 40 legislative districts back 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.

There’s really no other choice, say the sponsors of the legislation and Democratic leaders, because the COVID-19 disruption in the decennial census count means the U.S. Census Bureau is not planning to provide the state with the new population numbers needed to redraw district lines until mid-June of 2021. That would be after the primary elections for those legislative districts would typically have occurred.

Assemblyman John McKeon (D-Essex), prime sponsor of the amendment, said that, between redistricting rules and legal election deadlines, next year’s primary would wind up being held around Oct. 22, 10 days before the general election, if the amendment is not approved.

“I’m sure all of you would agree that that would be chaos, not palatable for the democratic process and, unfortunately, this is one other thing that’s a fallout as to life that’s no longer usual, based solely upon COVID,” McKeon told the Judiciary Committee during a hearing Thursday. “I really put this forward with a heavy heart. I don’t want to be here. I don’t think any of us want to … do something that is going to change what a 10-year cycle was going to be. But we really have no choice.”

Critics: There are other ways

Yet 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.

Such progressive groups as the NAACP State Conference, Salvation and Social Justice and Fair Share Housing Center that normally support Democrats expressed strong opposition during the hearing and called for a slower, more thoughtful solution. They suggested other reforms to make the process more transparent and less apt to result in gerrymandered districts.

“Today’s bill is not in the best interest of the people of New Jersey generally, and its people of color, in particular,” said Henal Patel, director of democracy and justice programs with the New Jersey Institute for Social Justice. “It will exacerbate the cracks of structural racism in our foundation by using the existing, outdated legislative maps which do not include the substantial growth of people of color in New Jersey since 2010, thereby diluting the political strength, influence and power to which people of color are entitled based on their composition of New Jersey’s population, as it exists right now.”

Patel suggested that officials could start working now on drawing preliminary districts using the most recent census estimates to enable a speedier adoption of boundaries next year that might still allow for elections then. He also said the state’s notoriously low-turnout legislative elections could be switched to even years when federal seats are also on the ballot.

Correcting imbalances

Decennial census data has many purposes. In the case of legislative redistricting, it is used to redraw boundary lines to ensure that districts have roughly equal populations to follow the constitutional principle of one person, one vote.

While the census of total population and racial and ethnic characteristics is continuing, voter registration data shows some major discrepancies among districts are likely to emerge, at least as far as the adult population is concerned. For instance, McKeon’s 27th District, which covers parts of Essex and Morris counties, had about 55,000 more registered voters on July 6 than the nearby 32nd District that includes parts of Bergen and Hudson counties.

New Jersey’s population has also diversified over the last decade. 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 increased from 8% to 10% and Hispanics from roughly 18% to almost 21%. Blacks remained at nearly 13% of the population.

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 each major political party chairman appoints half the members — the chief justice of the state Supreme Court appoints an 11th member. That member gets an additional month to get 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 U.S. Census Bureau typically prioritizes getting data to these states first.

Census delayed by pandemic

As of Monday, 64% of New Jerseyans had answered the census, according to City University of New York’s Hard to Count map. Right now, the bureau is not scheduled to begin non-response follow-ups — going to the homes of those who did not complete the survey — before Aug. 11. That follow-up was to have ended by July 31 and is now three months behind due to the health concerns stemming from the COVID-19 pandemic.

In an April 13 online posting, census officials said they plan to give all states their data by July 31, 2021.

However, census reporting deadlines are set in law, so the bureau needs Congress to act to change them. One measure proposed to extend the deadlines has not moved in Congress. An extension is also included in the $3 trillion HEROES Act, which would provide additional COVID-19 relief to individuals and states among other provisions. But while that measure has passed the House, it is stalled in the Senate.

Regardless, 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.

Democrats are taking the bureau at its word and assuming they won’t get any data until June. The amendment holds that if the state does not get its data by Feb. 15, redistricting won’t happen until after the general election and the new districts won’t be used until the following election.

Some of those opposed to the bill might support it if the revised timeline were in effect only next year. But the bill would make the change permanent — so in every year following the census, if counts are not received by Feb. 15, new districts will not be put in place until the year ending with a 3.

“It’s not clear to me why that action has been chosen in a constitutional amendment affecting every election in perpetuity,” said Laura Zurfluh, a member of both Indivisible Cranbury and Good Government Coalition of New Jersey. “This could be introduced as a similar amendment, enabling us to accommodate the delayed census numbers for this unique challenge, probably very similar to the amendment you propose currently, but that would not permanently alter our future redistricting.”

The Princeton University Gerrymandering Project agreed. In written testimony to the Assembly committee, Sam Wang, a Princeton professor and director of the project, also said Feb. 15 is too early a date, given that the Census Bureau is not required to provide data to states before April 1 of the year after the count, but has given New Jersey and Virginia its data sooner “traditionally and out of courtesy.”

A changing state

Wang has other concerns about the amendment, most particularly that it would “dilute the voting power” of Latinos and Asians, in particular, whose numbers in New Jersey have grown by 20% since 2010.

“The Legislature therefore faces the task of weighing the loss of representation by those communities against the benefit of taking an extra two years to redistrict the state,” Wang wrote.

Map shows changes in the Hispanic population in New Jersey, 2010-2018

The project’s analysis shows that the white population has decreased in every state legislative district except the 30th along the Shore in Monmouth and Ocean counties, while the Asian and Hispanic populations have risen in all but four districts. In three districts in particular — the 16th, 20th and 22nd — the white population declined by more than 5% while the Latino or Asian populations grew by at least 4%.

“To avoid representational harm to these communities, it would be best to adapt the redistricting and election schedule for 2021 to be as efficient as possible,” Wang continued.

The project put out its own timeline suggesting that even if data is not received until July 1, the state could have a new map in place by Aug. 1, an Oct. 12 primary election and a general election delayed until Dec. 12.

That schedule would need a change already allowed under the New Jersey Constitution, according to Wang: the appointment of the 11th member of the commission immediately, rather than after the partisans deadlock. It’s a change Wang and others have called for previously.

McKeon disagreed. “I’m no expert in this area, but about the worst way to get additional minority representation into the Legislature is to have any kind of consolidated process,” he said, also noting that part of what a candidate needs to win an election is enough money and it would be difficult for a newcomer to do that in a very short amount of time.

Moving election dates and changing certain rules are certainly possible. Through an executive order, Gov. Phil Murphy delayed this year’s primary by five weeks due to the novel coronavirus and made the vote primarily by mail, with about half the normal polling places open.

Following a confusing timeline — the measure, only introduced last Monday, was scheduled for a hearing, then withdrawn, then re-scheduled — the Judiciary Committee voted 4-2 along party lines for approval. The step had to be completed 20 days prior to a vote by both houses, with a public hearing in the interim.

Leaders of both the Assembly and Senate say they should have enough votes to pass the measure and put it on the ballot.

GOP: Democrats looking to maintain unfair advantage

The Democrats’ last attempt to revise the redistricting process in late 2018 was not successful. Introduced late in the last legislative session and put on a fast track, the measure was criticized as giving Democrats an edge in redrawing districts. Vocal and organized opposition from progressive groups, among others, killed it.

Sen. Tom Kean said Republicans are in the upper house are unanimous in opposing this effort as a political move to protect incumbents for two more years.

“This is just the latest in a series of efforts by Democrats in recent years to hijack the redistricting process for partisan gain,” said Kean (R-Union). “This newest effort is another thinly veiled attempt by Democrats to maintain an iron grip on the Legislature after two decades of control.”

Helen Kioukis of the League of Women Voters said lawmakers should use this as a chance to improve the redistricting process by including such reforms as an independent commission that includes regular citizens, rules for protecting communities of color and mandatory public hearings in a constitutional amendment they place on the November ballot.

“This is an opportunity to really put into place some measures that would give us a better process,” said Kioukis, who’s part of the League’s Fair Districts New Jersey project. “If we’re going to put something forward to the voters in November, let’s give them a question about whether they want a better and fairer process.”

Assemblywoman Carol Murphy (D-Burlington), vice chair of the committee, said that’s not the goal of the measure.

“We’re not talking about redesigning the redistricting commission with this bill,” she said. “We are saying, ‘Can we put it on the ballot for our public to decide whether or not they want to delay the redistricting.’”

Even if the resolution is ultimately approved by voters, it might not withstand a legal challenge. Patel said that while the courts might approve of a delayed redistricting because of logistical problems posed by the pandemic, they “may not allow a postponement of those new districts to 2023, which could trigger a series of special elections … which would come at great cost to the taxpayers at a time when the state is facing a mounting budget shortfall.”

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