Prompted by the COVID-19 pandemic's disruption to the decennial data collection, the third question on the ballot aims to give the New Jersey Apportionment Commission more time to create a map reflecting population shifts and growth since the 2010 census. If voters approve, the new map won't be implemented until 2023 if the Garden State's census numbers are received after Feb. 15, which means the state Senate and Assembly candidates will run according to the outdated map until then.
Detractors say the new map's delay denies minorities their fair representation in New Jersey and comes during a period of racial tension sparked by pushback to Trump administration immigration policies and police killings of Black men and women. They also take issue with the fact that the measure proposes a permanent constitutional amendment that would cement the Feb. 15 date for future censuses.
Princeton University professor Samuel Wang, founder of the redistricting reform think tank Princeton Gerrymandering Project, said the proposal comes as the pandemic and political divide have made it a "difficult time in the nation."
"In the meantime, Latino and Asian population growth in the north of the state will go unaccommodated for two years," he told Law360 last week about the ramifications of the ballot question being approved.
Those populations have increased in New Jersey by about 20% over the past decade, according to Princeton Election Consortium figures.
New Jersey has 21 counties represented by 40 legislative districts that must each contain an equal number of constituents, making redistricting necessary after every census to reflect new clusters of population growth or shifts. According to Princeton data, Hispanic population growth has been concentrated in Bergen, Burlington, Cape May, Gloucester, Hunterdon, Passaic, Salem, Union and Warren counties, while Asian population growth is happening in Gloucester, Hudson, Mercer, Salem and Somerset counties.
The sponsors of the measure fear that, due to the delay in census data posed by the coronavirus, a new legislative district map won't be ready in time to meet state election deadlines. Proponents say rushing out a new map after receiving figures after Feb. 15 would compress the time primary election candidates have to raise money and collect petition signatures in reconfigured districts.
In a statement, bill sponsor Assemblyman John McKeon, D-Essex, noted the pandemic's unforeseeable effect on how quickly a complete and accurate count of New Jersey's population can be made.
"While we hope the federal government will be able to get it done, we recognize the critical importance of having an alternative course of action should delays come to pass," the statement read in part.
McKeon defended the measure during a September panel discussion hosted by the Eagleton Institute of Politics at Rutgers University, saying the bill evoked "passionate" support from several Hispanic state lawmakers as well as from Black Senator Ronald L. Rice, D-Essex, and Sen. Vin Gopal, D-Monmouth, who is Indian American.
Addressing claims that it violates the equal protection clause of the U.S. Constitution, McKeon pointed out that the population is constantly changing, and equal protection with respect to voter redistricting was "nothing but a legal fiction."
Redistricting delays have been panned as convenient for incumbent lawmakers wanting to continue their entrenched advantage. Attorney Henal Patel of the New Jersey Institute for Social Justice in Newark considers redistricting the "foundation of our representative democracy," but a process that's nonetheless packed with political power.
"There is a genuine interest for voters, but it is also arguably the most political process of anything we do in this country," Patel said, noting that all 80 New Jersey Assembly seats and all 40 of the state's Senate seats are up for grabs in 2021.
The measure drew mixed reactions from New Jersey lawmakers, who passed it 51-26 in the Assembly and 25-15 in the Senate, with most of the support from Democrats.
The partisan motivation to control voting district boundaries is high in New Jersey, which is one of only five states that have legislative and gubernatorial elections on odd-numbered years and is a notably majoritarian place, said Benjamin Dworkin, director of the Rowan Institute for Public Policy & Citizenship in Glassboro, New Jersey.
Democrats hold that majority in both of New Jersey's legislative houses, as well as the governor's office — a dynamic that could understandably make Republicans eager to reexamine the districts without delay.
"If you're in the minority, it can be pretty tough. So it really matters whether the legislative map favors your party over the other," Dworkin told Law360. "Conventional wisdom drives donors, and if people expect your party will win, that can help you raise money to run competitive races."
Yet unlike states in which lawmakers update legislative maps, New Jersey aims to curb the manipulation of legislative districts for political advantage, known as gerrymandering, placing it before a bipartisan commission composed of six Republicans and six Democrats who work together to create updated districts after every census. If the sides can't agree on the maps, the New Jersey Supreme Court appoints a neutral chairperson to serve as tie-breaker.
The tie-breaker guides the negotiation process between both sides in the hopes of generating fair maps, according to Eagleton Institute Executive Director John Farmer Jr., who served as the congressional redistricting chairperson following the 2010 census.
At the time, the maps needed to account for population growth in New Jersey's southern region, he told Law360. He's concerned that a delay in new maps won't account for how the growth is now shifting north, and thinks technology advances since the last redistricting process render the measure unnecessary.
Farmer recalled how it used to take weeks to draw maps that accounted for competing dynamics, such as dividing the population up equally while avoiding splitting municipalities.
But he said New Jersey's redistricting timeline — which gives the commission 30 days after receiving the census data to render a map, and an additional month if the tie-breaker must intervene — isn't as daunting as it's been in the past.
"We now have software where you can draw multiple maps a day, and I think it will cause a positive revolution," Farmer said. "So I don't think the timing is as much an issue as it was in the past."
--Editing by Adam LoBelia.
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