Home>Campaigns>For challenge to N.J. congressional map, Supreme Court asks Democrats to respond to Wallace amplification

New Jersey Supreme Court Chief Justice Stuart Rabner speaks at Seton Hall Law School in 2019. (Photo: Seton Hall University).

For challenge to N.J. congressional map, Supreme Court asks Democrats to respond to Wallace amplification

Republicans argue that opportunity for Wallace to explain vote violated open public meeting law

By David Wildstein, January 24 2022 12:59 pm

This story was updated at 2:34 PM.

In what might be a careful scrutinization of congressional redistricting tiebreaker John E. Wallace, Jr.’s stated reason for picking the Democratic map, the New Jersey Supreme Court today ordered the Democratic commission members to respond to Republican allegations that he didn’t properly state his reasons.

Chief Justice Stuart Rabner later asked Wallace to “amplify” his reason for voting for the Democratic map.  Wallace did so by simply saying Democrats did a better job on their proposal and that he liked their map better.

Bu the Republican counsel to the Congressional Redistricting Commission, Matthew Moench and Michael Collins, believe it is unconstitutional for the top court to affirm the map based on hi supplemental statement.

“This statement was drafted by Chair Wallace in private, to the exclusion of all other NJRC commissioners and the public.  This means that no commissioner had an opportunity to discuss the Amplification Statement, ask questions, or question its accuracy.  It was also only written in direct response to this litigation, which creates a perverse incentive to take a position that would support affirmance.”

The GOP says that even if Wallace’s statement amplifying his reasons were to be considered, it “impermissibly contradicts the record below and demonstrates that the decision under review remains arbitrary, capricious, and unreasonable.”

Republicans maintain that Wallace’s January 11 amplification of his reasons should be rejected because it “impermissibly attempts to supplement the record from a proceeding that the New Jersey Constitution requires to be public.”

The suggestion is that Rabner was incorrect in likening the tiebreaker to a trial judge  or agency officer who sometimes render their decisions in private.  The GOP says that the state’s open public meeting law would have required Wallace to state his reasons at the meeting and not afterwards.

The Republican commissioners also think that Wallace’s amplification statement violates their federal and state due process rights.

“Our Constitution recognizes New Jersey’s solemn obligation to draw the state’s congressional districts, and it assigns this duty to the NJRC and this Court,” Moench and Collins stated.  “If the Court were to consider the amplification statement at all, it violates (Republicans’) procedural due process rights to have the NJRC’s determination made ‘pursuant to a majority vote of the full authorized membership of the commission convened in open public meeting, of which there shall be at least 24 hours’ public notice.’”

According to the Republican lawyers, a decision to use the amplification statement would deprive some commissioners of an “opportunity to respond to the ultimate reasons that are utilized to affirm the NJRC’s action, such as providing any responsive arguments or facts which may influence the independent member or Democratic Delegation members.”

“Wallace’s own words established that his ultimate decision was based upon his consideration that ‘fairness’ required that Democrats prevail because the Republicans ‘won’ in the last redistricting cycle,” Republican lawyers argued.  “Those are his words – not the Republican Delegation attempting to read meaning into an ambiguous statement or distort the record.”

They say the legislative intent of the independent member was “to be a nonpartisan figure that could resolve disputes” between the two parties.

“If the Independent Member reaches an impasse between the delegations’ proposals, the Constitution further specifies a process under which the two maps receiving the greatest number of votes are certified to the Supreme Court for a selection,” Republicans said.

Under Chair Wallace’s stated reasoning, New Jersey’s Congressional redistricting was reduced to an alternating possession that the Democratic party was entitled to win because they had the “possession arrow” in their favor. While alternating possession may be an acceptable way to decide jump balls in college basketball, it could not have possibly been the intent of the Legislature and people for the adoption of a Congressional map when they established the NJRC. The Democratic Delegation has filed

Because the Democratic Delegation cannot defend the substance of Chair Wallace’s remarks (and therefore outright ignore them in their statement of facts), they attempt to argue that they were procedurally superfluous. They write that Chair Wallace was “under no obligation to explain why he selected a map,” “protected from disclosing his reasoning,” “free to select either map for any reasoning,” and that his “reasoning should not matter.” They also claim that this Court cannot consider Chair Wallace’s motives in voting to adopt the Democratic map.

New Jerseyans expect – and this Court should interpret the Constitution to require – that the State’s Congressional Districts are adopted based upon a record established at a constitutionally-required public meeting demonstrating that the decision is being made in accordance with the Constitution’s intent and not on an arbitrary, capricious, or unreasonable basis.

Moench and Collins said in their brief that the State Constitution “has been interpreted as conferring the right to equal treatment under the law, a right analogous to the guarantee of equal protection under the Fourteenth Amendment to the New Jersey Constitution.”

“Although conceptually similar, the right under the State Constitution can in some situations be broader than the right conferred by the Equal Protection Clause,” the GOP lawyers stated.

The top court did not ask for a brief on three other counts, including one that alleged that Wallace had a conflict of interest because his wife, former Washington Township Mayor Barbara Wallace, contributed to Democratic federal candidates and an anti-Republican federal PAC during the current cycle.  Barbara Wallace also received over $140,000 in campaign contributions from Democratic officeholders, party officials and labor unions during two mayoral campaigns.

There was no request for a brief on another count, that map violated the Fourteenth Amendment of the U.S. Constitution.

In a lawsuit filed this month, Republicans argue that Wallace didn’t properly state his reasons for siding with the Democrats and asked that the map adopted last month be vacated.

Wallace, a former state Supreme Court Justice, initially stated that he only picked the Democratic map to balance a decision by tiebreaker John J. Farmer, Jr. to support the map presented by the Republicans a decade ago.

“In the end, I decided to vote for the Democratic map, simply because in the last redistricting map it was drawn by the Republicans,” Wallace said before casting his vote on December 22.  “Thus, I conclude that fairness dictates that the Democrats have the opportunity to have their map used for this next redistricting cycle.”

Republicans maintain that Wallace’s reasonings “were reduced to a predetermined decision that a Democratic map must prevail because Republicans ‘won’ last time.

The Republican lawyers contend that Wallace never brough the two parties together to negotiate and that there was no public discussion of the map among the commissioners.

“At no time during the three-days of discussions did Chair Wallace meet with the two partisan delegations together, nor did the partisan delegations exchange maps,” the GOP brief said.

According to the Republicans, if Wallace “found there to be an impasse between the Democratic Delegation’s map and the Republican Delegation’s map that he could not resolve, the New Jersey Constitution designates the Supreme Court of New Jersey to resolve the impasse and select between the two maps receiving the greatest number of votes.”

Republicans brought their challenge directly to the New Jersey Supreme Court.

The Court wants the Democratic brief of no more than fifteen pages filed by Thursday, according to a letter from Heather Joy Baker, the Supreme Court Clerk.


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