The next step in the redistricting process is the appointment of independent members – some call them tiebreakers – hugely important players in the production of final maps for congressional and legislative districts.
While the tiebreakers may ultimately play the same role — break a logjam between Democrats and Republicans by voting for one of the party’s maps — the appointment process is entirely different.
The stakes are high when it comes to congressional redistricting. A flip of just five seats could result in a change of party control in the U.S. House of Representatives. In New Jersey, Republicans have lost three seats since the last map was approved – a process that had generally been viewed as a GOP win.
There is no genuine view that legislative redistricting would result in Republican majorities in the State Senate and General Assembly. But the GOP will press for some gains, and the leadership math that preserves the current coalition will loom large.
Here are the answers to some of the questions we’ve fielded on tiebreakers:
When are the appointments made?
Congressional comes first and the 13th member will be picked by August 10, 2021. Legislative will come one month after the official U.S. Census Bureau count for New Jersey is certified to the governor. Census officials indicated that will come by September 30, which means the 11th member must be selected no later than October 31.
Voters approved the new schedule for picking an 11th member of the legislative commission in a 2020 constitutional amendment. In past decades, the tie breaker on the Legislative Apportionment Commission wasn’t made until the panel deadlocked.
Who picks the tiebreaker?
The 13th member of the Congressional Redistricting Commission can be picked by the six Democrats and six Republicans on the commission. If they can’t agree on one name, the names top two vote-getters go to the full seven-member New Jersey Supreme Court who must choose one of the two. This may be one of the last votes cast by Justice Jaynee LaVecchia, who retires on August 31.
The congressional panel must hold a vote on a tiebreaker by July 15, and the Supreme Court vote must come by August 10.
That puts the top court in the potentially precarious role of choosing between preferred choices of Democrats and Republicans. Justices rarely vote along party lines and on hugely political votes traditionally will voice their views behind closed doors and rally behind the majority in a public vote.
Chief Justice Stuart Rabner alone names the 11th member of the Legislative Apportionment Commission.
What are the qualifications of a tiebreaker?
They are different for congressional and legislative.
The congressional tiebreaker has a five-year New Jersey residency requirement and may not have held public or party office during those five years. The State Constitution sets broad parameters: “The one more qualified by education and occupational experience, by prior public service in government or otherwise, and by demonstrated ability to represent the best interest of the people of this state.”
For legislative, the decision rests entirely with the Chief Justice.
How will the Rabner make his pick for legislative redistricting?
According to his spokesman, Pete McAleer, the Chief Justice will ask both parties for names. He’ll have a retired Justice review the list, and if any names appear on both the Democratic and Republican lists, he’ll pick one of those names.
What if there are no common names on the list?
Rabner will pick his own tiebreaker. There are two types of tiebreakers: an independent member who views his or her role as a mediator and work to forge a compromise between Democrats and Republicans on a map; the other would be an activist 13th member who might be anxious to draw his or her own map befitting the type of plan they view as best and then cajoling six members to vote for it. The Chief Justice hasn’t commented on criteria.
Who have the past tiebreakers been?
Donald Stokes, the dean of the Woodrow Wilson School of Public and International Affairs at Princeton University, was the legislative tie tiebreaker in 1981 and 1991, named both times by Chief Justice Robert Wilentz.
Larry Bartels, then a political science professor at Princeton University, was the legislative tiebreaker in 2001. Chief Justice Deborah Poritz picked him out of nowhere after meeting him at a cocktail party and walking away impressed. She was, apparently, one of just a few who were.
Alan Rosenthal, a political scientist who ran the Eagleton Institute of Politics at Rutgers for nearly 20 years, was the tiebreaker for congressional in 1991 and 2001 and legislative in 2011.
John Farmer, while serving as Dean of Rutgers Law School in Newark, was the 13th member of the congressional commission in 2011. A registered independent, he served as New Jersey’s Attorney general from 1999 to 2002, and for about 90 minutes on January 8, 2002, he was the Governor of New Jersey. Farmer now has Rosenthal’s old job.
Before 1981, the legislature drew their own districts with the approval of the governor. An independent commission started drawing congressional districts for the 1992 elections after a federal court overturned the 1982 map and a panel of three federal appellate court judges drew their own map for 1984.
The commissions agreed on Rosenthal in 2001 for congressional and at the ill-fated suggestion of Republican National Committeeman Bill Palatucci in 2011 for legislative, and on Farmer for congressional in 2011. That obviated the need for the Supreme Court to be involved.
Does it have to be an academician?
No, although it has been in all seven occasions. The stable of high-profile academics has been reduced in recent years, especially as social media has offered a platform for them to express their personal political leanings. That might cast doubt on impartiality when the Chief Justice or his court mulls short lists. Still, there are several qualified and credible candidates.
What’s the alternative to a professor?
Look for a retired judge to fill the role, especially if the judiciary opts for a mediator and not an activist. That could work out fine as long as the deciders avoid the slippery slope of an ex-judge who is now associated with a politically connected law firm. Gary Stein, an 88-year-old retired Supreme Court Justice, has been actively campaigning for the job, leaders from both parties told the New Jersey Globe.
What’s the record on diversity when it comes to the redistricting tiebreaker?
It’s not good. New Jersey has had seven tiebreakers – all white men. Four of them were picked by the judiciary.
Will diversity play into the decision-making by the court?
That’s not clear, but their record isn’t exactly stellar either. In New Jersey’s fifteen Superior Court vicinages, twelve of the Assignment Judges are white. Of the eight presiding judges of the Appellate Division, six are white. Thirteen of the 32 appellate court judges are women and more than 75% of them are white. One the Senate confirms a Superior Court Judge, their advancement is entirely up to the Chief Justice.
Is there transparency on the selection of tiebreaker?
Who is on the redistricting commission?