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NEW JERSEY’S MULTI-MEMBER LEGISLATIVE DISTRICTS
AND LATINO POLITICAL POWER
JUAN CARTAGENA
Reprinted from
RUTGERS RACE & THE LAW REVIEW
Volume 7, Number 1-2
Copyright © Rutgers Race & the Law Review, 2005
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NEW JERSEY’S MULTI-MEMBER
LEGISLATIVE DISTRICTS AND
LATINO POLITICAL POWER
Juan Cartagena 1
INTRODUCTION
The recent engagement over the fairness of New Jersey’s
legislative redistricting at the turn of this decade2 focused primarily on the State’s African-American community without a
full appreciation of how New Jersey’s booming Latino community will realize its potential political strength. Swept together
under the rubric of “minority districts,” Latino voters were
commingled with black voters3 and only occasionally after
some deliberation.4 The integration of Latino voices in the
legislative halls in Trenton requires, however, a separate analysis. A focus on the obvious products of redistricting, e.g., how
many Latino majority (or safe) districts are at play and how
many influence districts5 are possible, fails to reach larger is1. B.A. Dartmouth College, 1978, J.D. Columbia Law School, 1981.
The author would like to acknowledge Michael Wright, a law student at
Rutgers Law School – Newark, for his research assistance.
2. See Page v. Bartels, 144 F.Supp. 2d 346 (D.N.J. 2001); Robertson v.
Bartels, 148 F.Supp. 2d 443 (D.N.J. 2001); McNeil v. Legislative Apportionment Commission, 177 N.J. 364 (2003); Trenton Redistricting Map Blocked
Over Claims of Bias, N.Y. TIMES, April 13, 2001.
3. See McNeil v. Legislative Apportionment Comm’n, 177 N.J. at 387.
4. Essex County was especially highlighted as a source of combined minority political unity in Page v. Bartels, 144 F.Supp. 2d at 362
5. The use of race in the creation of representational districts is necessary to ensure that political opportunities for Latinos are open to them on an
equal basis with other groups in society, thus avoiding the unlawful dilution
of their collective voting strength. See, U.S. v. Hays, 515 U.S. 737, 745
(1995) (“We recognized in Shaw . . . that the ‘legislature always is aware of
race when it draws district lines, just as it is aware of age, economic status,
religious and political persuasion, and a variety of other demographic factors.’ ”)”Majority minority” (or in this case majority Latino) districts are representational districts that are created to ensure that Latinos, a protected
class under the Voting Rights Act of 1965, 42 U.S.C. § 1971, et seq., are
created to comply with that Act’s guarantees to afford an equal opportunity
to elect candidates of one’s choice. Indeed, compliance with Section 2 of the
Voting Rights Act of 1965, 42 U.S.C. § 1973, (hereinafter “Section 2”) would
13
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sues in New Jersey politics. These broader issues stem from
the structure of the New Jersey legislature and the intersection
between that structure and the county-based political
machinery.
This article addresses one such structural impediment: the
governance structure of the New Jersey Legislature whereby
all state legislators are apportioned among forty legislative districts. Simply put, a multi-member legislative scheme, where
forty legislative districts elect forty state senators and all eighty
state assemblypersons, operates to the detriment of Latinos in
the state. Coupled with the requirement of town integrity in
the creation of the State’s legislative districts,6 redistricting in
New Jersey will invariably result in having less Latino voices in
the state legislature. Since alternative elections systems
abound, such as, an eighty-district plan for the Assembly or a
switch to proportional representation, the question is whether
the current system is vulnerable to a court challenge. What
follows is a description of various mechanisms to that end.
BACKGROUND
New Jersey has enjoyed a remarkable increase of its Latino
population in the decade from 1990 to 2000. Exceeding over
one million persons for the first time in history, the State’s Latino population climbed to 1,117,191 in 2000, a 51% growth
rate.7 Equally important, with 13.3% of the State’s population, Latinos surpassed the African-American population of
be a compelling justification for creating a majority-minority district if supported by a thorough record considered by the legislature. Shaw v. Hunt,
517 U.S. 899, 914 (1995). “Influence districts” are those districts where the
protected class is insufficient to form a majority but may still be considered
to have an opportunity to elect candidates of its choice by “creating coalitions of voters who together will help to achieve the electoral aspirations of
the minority group. It also, however, creates the risk that the minority
group’s preferred candidate may lose.” Georgia v. Aschcroft, 539 U.S. 461,
481, 123 S.Ct. 2498, 2512 (2003) (citations omitted).
6. See Scrimminger v. Sherwin, 60 N.J. 483, 498 (1972).
7. Angelo Falcón, Latinos and the 2001 Legislative Redistricting in New
Jersey, A Demographic Analysis, PRLDEF LATINO VOTING RIGHTS PROJECT, March 2001 (hereafter “Falcón”). The report analyzes 2000 Census
summary file data for redistricting (PL 94-171).
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1,096,171 for the first time. The non-Hispanic white population in the State decreased by 3.1% while the total population
of the State, fueled by increases within Latino, black and
Asian communities, grew by 9%.8
Housing segregation is another important demographic that
informs redistricting decisions. Compactness of representative
districts is an additional criterion in redistricting9 that is even
more important in the context of creating districts that fairly
reflect minority voting strength after the seminal case of Shaw
v. Reno in the Supreme Court.10 In this vein, residential segregation patterns will have a direct impact on redistricting decisions. In New Jersey, the 2000 Census revealed high levels of
residential segregation between Latinos and non-Hispanic
whites.11
As noted above, Latinos in New Jersey, who have now
reached parity with African-Americans, compose slightly over
13% of the total population and about 12.3 percent of the
state’s voting age population (“VAP”).12
8. Falcón, supra note 7, at 2.
9. Scrimminger, at 60 N.J. at 498.
10. Shaw v. Reno, 509 U.S. 639 (1993). In the field of redistricting the
contours of the districts have been elevated to constitutional significance:
“appearances do matter.” Id. at 647.
11. Falcón, supra note 7, at 2-3, where he reports that the dissimilarity
index between Latinos and Whites measures the percent of one group (here
Latinos) that would have to move across all of New Jersey’s 1,950 Census
tracts to have the same distribution among those tracts as the second group
(here Whites). On this measure, the dissimilarity index between Latinos and
Whites is 0.617, relatively high in his opinion.
12. A look at citizenship VAP, a feature of some redistricting battles in
the last decade especially out of Chicago, Houston and Miami (see Barnett v.
City of Chicago, 141 F.3d 699 (7th Cir. 1998); Campos v. City of Houston,
113 F.3d 544 (5th Cir. 1997); Negron v. City of Miami, 113 F.3d 1563 (11th
Cir. 1997)) would yield another picture of the voting strength of the Latino
community. Overall data for New Jersey reveals a non-citizen VAP rate of
8.2%. Source: Census 2000 Summary File 4 from www.census.gov. Nonetheless, given the significant Puerto Rican population of the state and the
longevity of the Cuban population, I suspect that citizenship VAP will not
represent such a significant drop-off in this state as it was in Houston or
Chicago even accounting for New Jersey’s significant Dominican population.
For example, the Puerto Rican population in the State is 366,788, an increase
of over 46,000 from 1990 representing 32.8% of the State’s Latino population; the Mexican population is close to 103,000 representing 9% of the
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Despite this, the proportion of Latino elected officials in
Trenton, however, is far less. At present there are six Latino
members in the eighty-person Assembly. There are no Latinos within the forty-member, state Senate. History shows us
that this is a peak period in Latino representation, as the following table13 demonstrates:
NJ Senate
Robert Menendez (D) Dist.33 (91-92)
NJ Assembly
Jorge Rod (R) Dist.9 (82-86)
Jose Arango (R) Dist.33 (86-88)
Robert Menendez(D) Dist.33 (88-91)
Jose Sosa (R) Dist.7 (92-94)
Raul Garcia (D) Dist.33 (93-2001)
Elba Perez Cincarelli (D) Dist. 31 (01-03)
Rafael Fraguela (D) Dist. 33 (01-03)
Eric Muñoz (R) Dist. 21 (02-Present)
Nilsa Cruz Perez (D) Dist.5 (95-Present)
Wilfredo Caraballo (D) Dist.29 (96-Present)
Nellie Pou (D) Dist.35 (97-Present)
Joseph Vas (D) Dist.19 (04-Present)
Albio Sires (D) Dist.33 (00-Present)14
State’s Latinos; the Cuban population is over 77,000 representing 7% of all
Latinos; and the Dominican population is just shy of the Mexican population
at 102,630 or 9% of all Latinos. Compare these figures to the proportion of
national origin groups within the nation’s Latino population in 2000 (Mexicans are 58.5%, Puerto Ricans are 9.6%, Cubans are 3.5% and Dominicans
are 2.2%, respectively) and the conclusion is inescapable that New Jersey’s
Latino community is different indeed – especially since Puerto Ricans are
citizens of the U.S. by operation of law. Source: Census 2000 Summary File
1 available at www.census.gov; PRLDEF LATINO DATA CENTER, Puerto Ricans Stateside 2000: A Demographic Overview available at www.prldef.org.
The point here is that conservatively, one in ten eligible voters in New Jersey
is Latino.
13. Roberto Rodrı́guez, Hispanic Council of New Jersey, Hispanic
Elected Officials to the New Jersey State Legislature, March 2001 (on file with
author) updated by Mr. Rodrı́guez (personal communication).
14. It is worth noting that Mr. Sires is the Speaker of the Assembly – a
position of considerable influence.
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This indicator of successful candidacies can only be appreciated by a full assessment of the numerous attempts by Latino
candidates to gain office in New Jersey. One such compendium exists for period between 1970 and 1991 and it documents the number of Latino candidates who sought election to
all offices in the state as revealed by a Spanish-surnamed analysis of all candidates that appear in the New Jersey state
archives of the New Jersey Division of Elections.15 A review
of that data for the New Jersey State Senate and State Assembly reveals that in the Senate seven Latinos ran for office unsuccessfully and in the Assembly thirty-four Latinos ran
unsuccessfully in the relevant time period.16 Clearly, Latinos
15. Juan Cartagena, Inventory of New Jersey Elections Where Latinos
Ran for Office Against Non-Latinos, Commonwealth of Puerto Rico, Department of Puerto Rican Community Affairs in the United States, March 20, 1991
(on file with author) (hereinafter “Cartagena”).
16. Cartagena, supra note 15 at 3-19 (includes individuals who ran more
than once): In Hudson County: Padilla in the Republican Assembly Primary
on June 7, 1977; Eulalio Jose Negrin lost in the Senate General Election for
District 33 on November 8, 1977; Joseph Yglesias lost in the November 6,
1979 Assembly General Election; Rios lost in the June 2, 1981 District 33
Assembly Democratic Primary; Ralph Montanez lost in the Nov. 3, 1981
General Election for State Senate for District 33 and Carlos Munoz and Jose
Garcia lost for Assembly in the same election; Carlos Munoz lost in a special
election for Senate in District 33 on June 23, 1982; George Guzman lost in
the Assembly Democratic Primary for District 33 on June 7, 1983 while
Francisco Cossio and Erasmo Beltran lost in the Assembly Republican Primary for District 33 in the same election; Carlos Munoz lost in the General
Election for Senate for District 33 on Nov. 8, 1983 while Jorge Gallo and
Francisco Cossio lost in the race for Assembly for District 33 in the same
General Election; Luis Valdivia lost in the Assembly Democratic Primary
Elections of June 4, 1985 for District 33 while Manuel Alcober lost in the
Assembly Republican Primary in the same district; In the Nov. 5, 1985 General Election for Assembly for District 33 Mario Hernandez was unsuccessful; Sixto Macias lost in the June 2, 1987 Assembly Democratic Primary
Elections for District 33; Hector Morales lost in the Nov. 3, 1987 General
Election for Senate for District 33 while Jose Arango and Angelo Valente
lost in the same district for Assembly; Gaston Delgado lost the Republican
Primary contest for District 32 on June 6, 1989 for the Assembly while
Humberto Alvarado, Carlos Munoz and Bartolome Ruiz lost in District 33
Assembly Republican Primary in the same election; In the Nov. 7, 1989 General Elections Octavio Alfonso lost in the race for Assembly for District 32
while Antonio Miguelez lost for Assembly in District 33. In Union County:
Jose Soler lost in the General Election for Assembly for District 21 in November 1973; Manuel Fernandez lost in the General Election of November
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in the Garden State have been trying to break down the barriers to representation for decades.
Currently in New Jersey, there are 40 legislative districts
throughout the state composed of an approximately equal
number of persons per district. Each legislative district elects
one senator and two Assembly members. The Assembly representatives are not required to run for a posted seat – that is,
there are no geographical representation requirements within
the districts. Accordingly, the New Jersey system is a classic,
multi-member district system. All three representatives run
at-large within the district.17 Moreover, redistricting in the
State exalts the principle of town integrity: except for Jersey
City and Newark, all town boundaries are to be preserved
within the 40 legislative districts.18 Senators are elected to
four year terms and Assembly members are elected to two
year terms.
The recent redistricting battle in New Jersey was the subject
of national attention due in large part to New Jersey’s unique
1975 for Assembly for District 21; Luis Bello lost in the Democratic Primary
for Assembly for District 21 in June 1977. In Passaic County: Fred Burgos
lost in the Assembly race for District 35 in the General Election of November 1981; Joaquin Calcines and Jose Moore lost in the General Election for
Assembly, District 35, in November 1989. In Bergen County: Robert Colon
lost in the November 1983 General Election for Assembly in District 38; Eli
Burgos lost in the Democratic Primary for Assembly in District 35 in June
1990. In Essex County: Joseph Santiago lost in a Special Election for Senate
for District 11 on March 2, 1971; Miguel Sanabria lost in the Republican
Primary of June 1977 for Assembly in District 29; In the November 1977
General Elections Miguel Angel Colon lost the Senate race for District 29
while Miguel Sanabria lost in the Assembly race for the same district; Jose
Linares lost in the General Election for Assembly for District 28 in November 1985. In Camden County: Jose DeJesus lost in a Special Election for
Assembly in District 5 on July 28, 1987.
17. Multi-member district systems, where multiple representatives run
at-large within the districts, have been the focus of numerous Constitutional
and Voting Rights Act challenges. At-large electoral systems always submerge the political will of the numerical minority, which can only realize its
political aspirations if other groups in the populace support their preferred
candidates. See, Thornberg v. Gingles, 478 U.S. 30 (1986) the seminal Section 2, Voting Rights Act case interpreting the amended Section 2 provision
allowing proof of discriminatory effect to establish liability.
18. See McNeil v. Legislative Apportionment Commission, 177 N.J. 364
(2003); Page v. Bartels, 144 F. Supp. 2d at 354.
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political calendar: state legislative elections must be held in the
first year of the decade,19 2001, the first year that census data
is available thus putting the State in the national spotlight for
the customary partisan battles inherent in redistricting. Much
was made over the apparent irony of the role reversal inherent
in the litigation: Republicans were touting themselves as the
champions of voting rights for minorities; Democrats were
proclaiming that they were prepared to break down the stereotypes that minorities can only be elected from majority - minority districts.20 Each side saw a convergence between
partisan interests and minority voting rights: the Republicans
sought to benefit from maintaining the current crop of strong,
majority - minority districts to assure minority success without
encroaching on Republican suburban territories; the Democrats saw an opportunity to wrestle control of state legislatures
by creating more competitive races against Republicans by
having minority, urban voters expand into the suburban rings.
The media picked up on this controversy and the political parties reduced it to an elementary simplicity called “packing versus unpacking.”21 In New Jersey, the Democrats prevailed
before the State redistricting commission.22
19. See, N.J. Const. Art. V, § 1; NEW JERSEY OFFICE OF LEGISLATIVE
SERVICES, NEW JERSEY LEGISLATORS’ HANDBOOK, 5 (2004-2005).
20. Hispanics Seek Increased Representation And Republicans Are Very
Eager to Help, WALL STREET JOURNAL, April 2, 2001 (noting how
traditional alliances between partisan and minority interests get “turned on
their head” during redistricting); Redistricting Arguments Put Parties in Opponent’s Territory, ASSOCIATED PRESS, May 1, 2001, electronic document at http://news.findlaw.com/ap_stories (reporting how the two political
parties have switched hats in a “strange year” of redistricting); Democrats’
Map Key to Legislature, STAR LEDGER, April 15, 2001 (noting that if
Republicans in 1991 tried to dismantle majority-black districts as Democrats
were doing in 2001, minority lawmakers would be the first ones in court);
Judges Uphold New Districts in New Jersey, N.Y. TIMES, May 3, 2001 (reporting on the “atypical” alliance between black Democratic incumbents
and white Democrats to dismantle predominately minority districts).
21. See Remap fight focusing on minorities, STAR LEDGER, April 10,
2001 (referring to the Democrats “unpacking” strategy for minority dominated districts in New Jersey); Miguel Perez, Either redistricting proposal dilutes Latino clout, BERGEN RECORD, April. 18, 2001 (noting Latino
opposition to the Democrats “unpacking” strategy); Minorities want to be
spread out, TIMES TRENTON, April 5, 2001, at A3.
22. Page, 144 F.Supp. at 349.
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Latino voices23 garnered less attention than African-American concerns in this contest and probably for good reason.
The only Latino majority district in the state, District 33 in
Hudson County,24 was left intact in the competing Republican
and Democratic proposals and in the final plan known as the
Bartels Plan in honor of the 11th and tie-breaking member of
the commission, Professor Larry Bartels. While the Republicans boasted a second Latino district in their proposals, most
observers would agree that it was a strong influence district at
best.25 With no threat to the only Latino majority district in
play, Latinos stood in a different posture than blacks in this
battle. African-Americans could at least have a legitimate debate over the fairness of reducing 3 strong black districts to
one majority black district and two strong influence districts in
Essex County and environs. For Latinos, the only ball in play
was the contours of Latino influence districts – none of which
ever surpassed 40% Latino population in any plan, even the
one produced by the Latino Voting Rights Committee of New
Jersey sponsored by the Puerto Rican Legal Defense Fund.26
23. The New Jersey Legislative Apportionment Commission reportedly
did receive in March 2001 a Proposed New Jersey Latino Legislative Redistricting Plan (on file with author) submitted by the Latino Voting Rights
Committee of New Jersey, an ad-hoc coalition sponsored by the Puerto Rican Legal Defense Fund’s Latino Voting Rights Project. In addition, Miguel
Pérez, a columnist for BERGEN RECORD noted that Assemblyman Wilfredo
Caraballo and Assemblywoman Nellie Pou were both active before the Apportionment Commission and endorsed the Democratic “unpacking” plan to
the dismay of the Latino Leadership Alliance of New Jersey. Perez, supra
note 21. Congressman Robert Menendez was also active in this round as well
as another Latino group known as Concerned Hispanics in Search of Progress and Advancement. Miguel Perez, Overcoming The Undercount, BERGEN RECORD, February 14, 2001.
24. District 33 is composed of a portion of Jersey City and all of the following towns/cities: Guttenberg, Hoboken, Union City, Weehawken, and
West New York and 57.5% of its 206,676 residents are Latino (who also
compose 54% of the district’s VAP). Source: NJ Legislative Apportionment
Commission plan (on file with author). The next four legislative districts
ranked in order of Latino population are District 32 (40%); District 35
(39%); District 29 (36%) and District 20 (34%). Id.
25. Interview with Lucı́a Gómez (personal communication on file with
author) .
26. On file with author.
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Litigation ensued as was expected. Page v. Bartels was a
federal Constitutional and Voting Rights Act challenge to the
Bartels plan as it affected African-American, and ostensibly,
Latino voters in Essex County.27 It resulted in a major opinion by a three-judge District Court, which contains overly
broad and troubling portions that relate to racially polarized
voting by Latinos in New Jersey, discussed below. The court
found that the reduction of African-American voters in District 27, and the corresponding introduction of such voters into
District 34, did not deprive African-Americans of an equal opportunity to elect candidates of its choice, and in fact, increased the opportunity of minorities to be elected.28 The
court also found that African-Americans and Latinos support
each other’s candidates in the districts at issue29 and held that
the Bartels plan did not violate the Voting Rights Act or the
14th or 15th Amendment.
In large part the viability of Page v. Bartels as precedent in
future Voting Rights Act challenges to New Jersey legislative
districts is uncertain because an argument can be made to limit
its reach to two legislative districts in Essex County. Nonetheless, it is a significant development in the advocacy efforts that
will no doubt reappear to make New Jersey’s districts fairly
reflect Latino voting strength. Two other court challenges also
emanated from the adoption of the Bartels plan, neither of
which addressed the important issues of Latino political power
in the state: Robertson v. Bartels 30 and McNeil v. Legislative
27. The court in Page v. Bartels was very clear that it was only addressing
two legislative districts in Essex County, Districts 27 and 34, even after acknowledging that the plaintiffs therein originally challenged two additional
districts from Essex County (Districts 28 and 29). Page, 144 F.2d at 352.
District 27 went from a 52.8% black VAP to a 27.5% black VAP, while District 34 went from a 3.9% black VAP to 35.3% black VAP. None of the
districts at issue were majority Latino districts and neither surpassed ten percent Latino VAP in the final Bartels plan upheld by the court. Id. at 353
28. Id. at 362.
29. Id. The court gave credence to the testimony of the only Latinos
who testified in the case: Assemblyman Wilfredo Caraballo and U.S. Congressman Robert Menendez.
30. 148 F.2d 443 (D.N.J. 2001) was primarily an unsuccessful challenge to
the creation of District 34 in the Bartels plan on the basis that it was allegedly fashioned with race as its primary consideration to the subordination of
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Apportionment Commission.31 The latter is a decision from
the New Jersey Supreme Court that is written broadly to uncritically adopt the entire Page v. Bartels analysis and will be
addressed separately below.
I submit that despite the best efforts of Latino advocates in
the 2001 redistricting engagement in New Jersey, a significant
impediment to a redistricting plan that accurately portrays the
voting strength of Latinos in Jersey is found in the governance
structure that the state has adopted, not in the fairness or unfairness of the partisan interests that dominate redistricting.
Simply put, a multi-member governance structure will usually
operate to the detriment of Latinos in the state. Coupled with
the criteria of town integrity, redistricting in New Jersey will
invariably result in Latinos having less opportunity to elect
candidates of their choice.
NEW JERSEY’S MULTI-MEMBER DISTRICTS
The history of New Jersey’s multi-member structure for a
bicameral legislature goes back over 225 years to the New
Jersey Constitution of 1776, which provided each county with
one senator and three assemblymen.32 The history of the
state’s journey from county-based representation to its current
40 / 80 legislature is complex, however. It is found in a series
of multiple decisions by the New Jersey Supreme Court in the
1960s and 70s such as, Jackman v. Bodine,33 Scrimminger v.
Sherwin 34 and Davenport v. Apportionment Commission.35
traditional redistricting principles in violation of the 14th and 15th Amendment. This is commonly referred to as a Shaw challenge under Shaw v.
Reno 509 U.S. 630 (1993). .
31. 177 N.J. 364 (2003) is an unsuccessful state constitutional challenge to
the division in the Bartels plan of both Newark and Jersey City into three
separate legislative districts. The court ruled that New Jersey’s constitutional prohibition on dividing the two largest cities into more than two districts cannot be enforced without violating the federal constitution’s
Supremacy Clause. 177 N.J. at 371.
32. See Jackman v. Bodine, 78 N.J. Super. 414, 425-26 (N.J. Super. Ct.
Ch. Div. 1963).
33. Id. at 414.
34. 60 N.J. 483 (1972).
35. 124 N.J. Super. 30 (N.J. Super. Ct. App. Div. 1973).
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In summary, the historical decisions by the United States
Supreme Court that developed the one person, one vote principle of the 14th Amendment’s Equal Protection Clause36 created the impetus to change the governance structure of the
state’s legislature. Like many states in the 1960s New Jersey
sought to avoid federal court decrees by having its state courts
and its citizens amend the long-standing practice of countybased representation found in its constitution. The early decisions in this area all ruled that the 1947 (and 1844) New Jersey
Constitution was not in compliance with the one person, one
vote requirement because it called for a Senate of twenty-one
members (one per county) and an Assembly of sixty members
apportioned on the basis of equal population but no county
having fewer than one Assemblyman.37 In 1966 a constitutional convention was celebrated in New Jersey to amend Article IV and its results were ratified by the voters that year.38 It
called for a Senate of forty members and an Assembly of
eighty members.39 The Senate was to be apportioned on the
basis of equal population but each Senate district was to be
composed, “wherever practicable, of one single county, and if
not so [practicable, of two or more contiguous whole counties.”40 Where a “Senate district” composed of two or more
counties. . . the senators were required to run singly in Assembly districts.”41 Thus, it appears that Assembly districts within
Senate districts were authorized – but this was only in the
event that a Senate district amassed two or more counties.42
Otherwise, it would be two Assembly members per Senate district. This constitutional mandate did not last long as it be36. The one person, one vote doctrine requires representational districts
to be approximately equal in population so as to not debase the vote of the
residents of large populated districts to the benefit of smaller districts when
the districts elect the same number of representatives. See Reynolds v. Sims,
377 U.S. 533 (1964); Baker v. Carr, 369 U.S.186 (1962).
37. See Davenport, 124 N.J. Super. at 36.
38. Id. at 37.
39. Id.
40. Id. (quoting N.J. CONST. art IV, § 2, par. 1).
41. Davenport, 124 N.J. Super., at 37 (citing N.J. CONST. Art. IV, § 2,
par. 2).
42. See Davenport v. Apportionment Comm’n, 63 N.J. 433, 435-36
(1973).
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came apparent to the New Jersey Supreme Court that it would
be unlawful under federal law to insist on Senate districts composed of one or more whole counties given the wide disparity
in population among the counties. In effect the courts had to
disregard the 1966 Constitution43and essentially conclude that
“the county concept ceased to have any viability in the creation of Senate districts.”44
The long and short of this jurisprudence is that the current
40/80 multi-member structure in New Jersey is a direct product
of the New Jersey Supreme Court’s interpretation of federal
Constitutional law. And throughout this case law we can ascertain that at one point, New Jersey sanctioned the use of Assembly districts that were sub-units of the larger Senate
districts that they composed.45 The case law also makes the
occasional reference to the unfairness of the at-large system it
authorizes, some of it in racial tones. For example, in Jackman
v. Bodine, 46 the Supreme Court discussed the question of “not
whether in this respect the multi-member district denies the
principle of one man one vote, but whether such districting
generates other inequalities equally violative of the equal protection clause,”47 and did so by noting the disadvantage to minority interests.48 Indeed, in this opinion the court mulled the
possibility of “whether the equal protection clause requires
single-member districts to insure the maximum chance of election by minorities. . ,”49 but went no further after concluding
that the matter was “far from settled” by the United States
Supreme Court.50 The New Jersey Supreme Court subsequently cited with approval the U.S. Supreme Court’s observa-
43.
44.
45.
46.
47.
48.
49.
50.
Id.
Davenport v. Apportionment Comm’n, 65 N.J. 125, 133 (1974).
See also Jackman v. Bodine, 49 N.J. 406, 409-10 (1967).
55 N.J. 371 (1970).
Id. at 384.
Id.
Id. at 385.
Id.
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tion in Connor v. Johnson 51 that “single-member districts are
preferable to large multi-member districts.”52
The recognition by the New Jersey Supreme Court of the
potential racial implications of multi-member districts noted
above could be addressed under various civil rights protections
currently found in either federal or state law. For example, the
effect of the State’s legislative districts on the political aspirations of Latino voters merits further discussion from the standpoint of the New Jersey Constitution’s Equal Protection of the
Laws mandate.53 The New Jersey Constitution has been held
to provide for a broader protection of rights than the federal
Constitution’s Equal Protection Clause as noted by the state
Supreme Court in Robinson v. Cahill.54 A “balancing” approach is called for under New Jersey jurisprudence, which allows state courts to weigh the “nature of the affected right, the
extent to which the governmental restriction intrudes upon it,
and the public need for the restriction.”55 Arguably, a case
can be made that when a fundamental right, like voting, is at
issue, the broadest protection of the state constitutional provision is warranted.56 However, the initial decision of a lower
New Jersey court addressing the intersection between the
state’s Equal Protection of the Laws and its constitutional
sanction of felon disenfranchisement laws found in Article II,
section 1, paragraph 7, would restrict discrimination claims to
a heightened standard of discriminatory intent.57 Nonetheless,
51. 402 U.S. 690, 692 (1971).
52. See Scrimminger v. Sherwin, 60 N.J. 483, 496 (1972); see also Jackman
v. Bodine, 43 N.J. 453, 472 (1964) (stating that New Jersey withdrew its ratification of the 14th Amendment before the Amendment became effective).
53. 48 N.J. STAT. ANN. § 1
54. 62 N.J. 473, 491-92 (1973).
55. Greenberg v. Kimmelman, 99 N.J. 552, 567 (1985).
56. See Right to Choose v. Byrne, 91 N.J. 287, 310 (1982); Planned
Parenthood v. Farmer, 165 N.J. 609, 632 (2000) (in appropriate cases the
court would “read the broad language of Article I, paragraph 1, to provide
greater rights than its federal counterpart.”)
57. New Jersey State Conference - NAACP v. Harvey, No. UNN-C-4-04,
Slip op. at 4-5 (N.J. Super. Ch. Div. June 30, 2004) (citing Greenberg v. Kimmelman, 99 N.J. 552, 580 (1985)). Judge Span’s decision never addresses a
number of Equal Protection cases that provide for increased judicial scrutiny
to undo burdens placed on fundamental constitutional rights. See Planned
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more attention should be paid to state avenues of redress for
the discrimination inherent in New Jersey’s multi-member legislative district structure.
SECTION 2 VOTING RIGHTS ACT IMPLICATIONS OF
NEW JERSEY’S MULTI-MEMBER
DISTRICT SCHEME
Voter discrimination challenges to multi-member district
structures are not new. Even before the 1982 watershed
amendments to Section 2 of the Voting Rights Act, creating a
results test for Section 2 violations,58 the U.S. Supreme Court
was very familiar with the claims of minority voters against atlarge schemes:59 Fortson v. Dorsey 60 (An unsuccessful one
person, one vote challenge to Georgia’s fifty-four member
Senate elected on the basis of counties, with the largest counParenthood, 165 N.J. 609; In the Matter of Absentee Ballots Cast by Five
Residents of Trenton Psychiatric Hospital, 331 N.J. Super. 31 (App. Div.
2000). This begs the question of whether voting can be elevated to a fundamental right under New Jersey law – a question that should be answered in
the affirmative. See Abromowitz v. Kimmelman, 203 N.J. Super. 118, 124-25
(1985) (“A law that merely affects voting, without actually denying the right
to vote or depriving voters of equal representation, is usually not subject to
strict scrutiny”) (emphasis added). Felon disenfranchisement laws have
been the subject of numerous recent challenges in federal courts on Constitutional and Voting Rights Act grounds because of the incredibly stark racial
characteristics of persons in prison and on parole in the United States. See
Johnson v. Bush, 353 F.3d 1287 (11th Cir. 2003) vacated and set for a reh’g en
banc, granted by 377 F.3d 1163 (2004); Muntaqim v. Coombe, 366 F.3d 102
(2d Cir.), cert. denied, 125 S.Ct. 480 (2004) rehearing en banc, granted, 2004
U.S. App. LEXIS 27081 (2d Cir., Dec. 29, 2004; Farrakhan v. Washington,
338 F.3d 1009 (9th Cir. 2003); Hayden v. Pataki, 2004 U.S. Dist. LEXIS
10863 *1 (S.D.N.Y. June 14, 2004). Latinos in New Jersey are overrepresented in the classes of persons who have lost their voting rights because of a felony conviction: With 13.3% of the State’s population, Latinos
compose 18 % of the prison population, 20% of the parolee population and
15% of those on probation. New Jersey State Conference – NAACP v. Harvey, (No. UNN-C-4-04, Complaint, par. 25)(N.J. Super. Ch. Div. June 30,
2004).
58. S. REP. NO. 97417, at 28-30 (1982).
59. An excellent overview and casebook of the Constitutional and statutory implications of voting structures in the United States is found in I.
I.SSACHAROFF AND P. KARLAN, THE LAW OF DEMOCRACY: LEGAL STRUCTURE OF THE POLITICAL PROCESS (1998).
60. 379 U.S. 433 (1963).
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ties having up to seven members apportioned. The court left
open the question of whether a minority vote dilution claim
could be made when a multi-member district scheme operates
to “minimize or cancel out the voting strength of racial or political elements of the voting population.”61); Whitcomb v.
Chavis 62 (Unsuccessful black voter challenge to Indiana’s legislature composed of a House of one hundred members from
thirty-nine districts, twenty-five of which were multi-member,
and a Senate of fifty members from thirty-one districts, eight
of which were multi-member.63 The court noted that “experience and insight have not yet demonstrated that multi-member districts are inherently invidious and violative of the
Fourteenth Amendment.”);64 White v. Register 65 (Successful
challenge by Black and Latino voters to multi-member districts in Dallas & Bexar Counties in Texas resulting in court
order to create single member districts.66 The court upheld a
district court finding that multi-member districts in Bexar
County overlaid upon the cultural and economic realities of
the Mexican-American community constituted a blend of “history and intensely local appraisal” that warranted
affirmance.).67
The crux of any Section 2 challenge to New Jersey’s legislative districts, however, is the important case of Thornberg v.
Gingles, 68 itself a successful voting rights challenge to North
Carolina’s General Assembly which combined single member
and multi-member districts in a way that canceled the voting
strength of black voters.69 Section 2 (b) of the Voting Rights
Act empowers a court to find a violation if “based on the totality of the circumstances, it is shown that the political processes
leading to nomination or election in the State or political subdivision are not equally open to participation by members of a
61.
62.
63.
64.
65.
66.
67.
68.
69.
Id.
403 U.S. 124 (1971).
Id. at 127.
Id. at 159-60.
412 U.S. 755 (1973).
Id.
Id.
478 U.S. 30 (1986).
Id.
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class protected by subsection (a) in that its members have less
opportunity than other members of the electorate to participate in the political process and to elect representatives of
their choice.”70. The case of Thornberg v. Gingles sets out
three prerequisites that must be addressed before a court can
consider the wide range of evidence that can be accepted
under the “totality of circumstances” standard.71
Taking the three Gingles factors in turn, we can now ask the
following:
Gingles One: Are Latinos large enough and geographically
compact in New Jersey to constitute a majority in a single
member district under an eighty district plan for the Assembly? Every Section 2 challenge to multi-member district plan
is typically accompanied by a proposed single-member district
plan. This stems from the first prerequisite to establish Section
2 liability but it also speaks to the remedies available for Section 2 violations under the Gingles rubric. Whether Latinos in
New Jersey can become effective majorities in more than the
six Assembly districts remains to be seen. However, it is clear
that such an exercise would be worthwhile if such a plan is not
coterminous with the current forty legislative districts because
it would provide for smaller geographic representation of communities and neighborhoods and especially if such a plan is not
required to uphold the town integrity requirements of New
Jersey law.72 It appears that New Jersey’s courts are prepared
to find that state constitutional requirements which impede
compliance with federal statutory or Constitutional norms in
70. 42 U.S.C. § 1793 (b).
71. Page v. Bartels, 144 F.Supp.2d at 364.
72. Before McNeil v. Legislative Apportionment Commission was decided in 2003, there was a recognition in the New Jersey Supreme Court that
municipal boundaries should be respected in legislative redistricting:
Municipal lines should be observed, if possible, for if they are followed, dividends may be expected in terms of furthering the relationship of these political subdivisions and the State and also in
terms of restraining to some extent the opportunities for drawing
lines for partisan advantage. Municipalities are thus appropriate
building blocks for the creation of districts.
McNeil, 177 N.J. at 403-04 (LeVecchia, J. dissenting) (quoting Scrimminger
v. Sherwin, 60 N.J. 483, 497-98 (1972)).
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redistricting must be set aside – at least this was the clear import of the McNeil v. Legislative Apportionment Commission
which set aside a bright line state constitutional mandate not
to divide the State’s largest two cities into more than two legislative districts.73 Similarly, town integrity74 cannot be allowed
to stand in the way of creating a federal right to a redistricting
plan that fairly reflects Latino voting strength.
73. 177 N.J. 364, 371 (2003). The McNeil opinion is an interesting pronouncement from the State’s highest court which arguably went out of its
way to sidestep a clear state constitutional mandate that limits the choices
the State can legally make when redistricting its legislative districts. In addition to ruling that federal law prohibits the enforcement of the constitutional
prohibition on unnecessary fracturing of the State’s two larges cities, id. at
388-400, the majority opinion in McNeil essentially adopted the U.S. District
Court’s opinion in Page v. Bartels in its entirety to foreclose any showing
that the division of Jersey City and Newark into only two legislative districts
(instead of the three districts adopted in the Bartels Plan) could also satisfy
the requirements of Section 2 of the Voting Rights Act. The surprising element of its conclusion is that it ruled against the plaintiffs who were seeking
to overturn the Bartels Plan without ever reviewing, or demanding, an alternative plan that would satisfy both the Voting Rights Act and Article IV,
section 2, paragraph 3 of the New Jersey Constitution. See id. at 400
(Verniero, J. dissenting).
Another intriguing section of the majority opinion rejects the relief sought
by the plaintiffs because it would somehow diminish partisan control of the
legislature. After noting that creating only two legislative districts in Newark and Jersey City would result in unlawfully “packing” minorities into
those districts in contravention of the Voting Rights Act the court goes forward to find that such an unwarranted result would reduce by one-third the
number of seats allocated to those cities where “minorities were elected to
fill approximately sixty-one percent of the Senate and Assembly seats in six
districts.” Id. at 385. Then the court makes a confusing reference to “democratic control:” “Clearly, the attempt to reduce the number of districts in
Newark and Jersey City from three to two is to minimize the chance of democratic control of the Legislature.” Id. (emphasis added). Is there any other
way to read this passage without concluding that Justice Coleman was referring to Democratic control of the Legislature? And if so, why did the court
adopt the Page v. Bartels uncritically without exploring how Latinos in the
state fared if its concern was with cities where “minorities” were elected?
74. In general, town integrity is a recognized criterion for redistricting.
McNeil v. Legislative Apportionment Commission, 177 N.J. at 405
(LeVecchia, J. dissenting) (recognizing a number of federal cases that acknowledge that the respect for town boundaries is a legitimate factor in redistricting and quoting Reynolds v. Sims, 377 U.S. 533, 580-81 that respect
for political subdivisions gives “some voice to political subdivisions as, as
political subdivisions”).
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Alternative remedies outside of single-member districting –
essentially forms of proportional representation that retain the
at large nature of districts but change the weight of the votes
cast – should also be studied as possible solutions to the underrepresentation of Latinos in the halls of Trenton as they have
in places like Texas.75 These proportional representation systems include cumulative voting, limited voting and preference
voting.76 Cumulative voting allows voters in a multimember
district to apportion a certain number of votes among a group
of candidates. Voters can give all their votes to one candidate
or distribute them as they choose. Numerical minorities in
multimember districts can vote cohesively and concentrate
their votes on a small number of candidates thus ensuring their
election. Limited voting assigns one vote per candidate to
each voter but the total number of votes to be cast by each
voter is less than the total number of seats to be filled. Again,
cohesive and strategic voting behavior by the numerical minority will allow minority preferred candidates to succeed, because the majority cannot vote as a bloc to fill every available
seat. Preference voting forces voters to rank candidates in order of preference and their votes are then tallied in rounds of
ballot counting. Winning candidates in the first round have
their excess votes (the number of first preference votes received above a minimum set to win one seat) reassigned to the
second preferred candidate listed by the voter, and so on until
every seat is filled. Some states have used these proportional
75. Cumulative voting – one form of proportional representation – has
been used successfully in a number of communities in Texas with significant
Latino populations. See, Robert R. Brischetto & Richard L. Engstrom, Cumulative Voting and Latino Representation: Exit Surveys in Fifteen Different
Texas Communities, 78 SOC. SCI. Q. 973 (1997).
76. Most notably, proportional representation systems were advocated
forcefully by Lani Guinier as a method to ensure that representative democracy fairly reflects black (and minority) political strength, especially during
her short-lived nomination to head the Civil Rights Division of the Department of Justice in the Clinton Administration. See LANI GUINIER, THE TYRANNY OF THE MAJORITY: FUNDAMENTAL FAIRNESS IN REPRESENTATIVE
DEMOCRACY (1994). For general information on proportional representation systems, see www.fairvote.org, the website of the Center for Voting and
Democracy.
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systems as remedies to Voting Rights Act violations of multimember districting schemes, such as, Illinois77 and Alabama.78
Gingles Two: Are Latinos politically cohesive? Have they
demonstrated sustained Latino support for Latino candidates?
Expert testimony on racially polarized voting is indispensable
in these cases and will serve to show if racially polarized voting
occurs in a certain jurisdiction – that is whether, more often
than not, minority voters vote as a racial bloc.79 In New Jersey
this would require a full analysis of voting patterns in Latino
communities across a spectrum of Assembly elections and possibly other, exogenous elections. In the Page v. Bartels litigation, the court did acknowledge a number of findings that
speak to this issue: For Democratic candidates in general Assembly elections80 the average support from Latino voters for
the Democratic candidate was eighty-three per cent,81 evidence that Latino voters coalesce around certain candidates.82
77. McCoy v. Chicago Heights, 6 F.Supp. 2d 973, 985 (N.D. Ill. 1998)
(cumulative voting used as a remedy to a Section 2 violation);
78. Dillard v. Town of Cuba, 708 F.Supp. 1247, 1246 (M.D. Ala. 1988)
(settlement provided for limited voting as a remedy under Section 2); Dillard v. Chilton County Board of Education, 699 F.Supp. 870, 876 (M.D. Ala.
1988), aff’d, 868 F.2d 1274 (11th Cir. 1989) (settlement provided for cumulative voting as a remedy).
79. See, Thornberg v. Gingles, 478 U.S. 30, 51 (1986).
80. The elections studied in this portion of the analysis were from 1991 to
1999. Bartels, 144 F.Supp. 2d at 360.
81. Id. at 361.
82. A review of the political science literature by Rudolfo de la Garza
appears to present a mixed view of Latino political cohesiveness in various
regional studies. Rudolfo de la Garza, Latino Politics, 7 ANN. REV. POLIT.
SCI. 91-123 (2004). While none of the literature focuses on New Jersey, support for what de la Garza refers to as “coethnic candidates” appears mixed
or at the very least is grounded in Latino support of Democratic party candidates. Id. at 98. This view comports with the expert testimony cited favorably in Page v. Bartels (“In sum, Dr. Lichtman concluded from these results
that the most salient factor in determining the winner of these elections was
not the race of the candidate but the party of the candidate”). Bartels, 144
F.Supp. 2d at 361. However, one study cited in the literature review demonstrates a high rate of political cohesion for Latinos: 77% of Latinos would
support a Latino candidate when given the option between a Latino and a
non-Latino. Rudolfo de la Garza, Latino Politics, 7 ANN. REV. POLIT. SCI.
98 (2004).
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Gingles Three: Does the white majority vote as a bloc to
defeat the Latino preferred candidate? This is the mirror image of Gingles Two and it goes to the heart of the political
reality in New Jersey: Do Latino candidates enjoy significant
white crossover votes to the extent that it defeats a Section 2
case premised on Gingles?
The concept of “minority preferred” candidates reveals a
tension inherent in Section 2 between Congress’ express rejection of proportionality as a measure of Section 2 compliance
and its recognition that minority candidates’ success, or actually the lack thereof, is evidence that can prove a violation of
Section 2.83 In other words, the fact that Latinos are 13% of
the New Jersey population (or even 12.3% of the State’s VAP)
does not create a legally enforceable right to 13% of the districts within the Senate or Assembly. And yet the fact that
Latinos have only elected one Latino senator in history, and
six Assembly members at present, is relevant to the issue of
racially polarized voting in the state. That very tension results
in pronouncements as varied as Justice Thomas’ surprising84
opinion in Holder v. Hall,85 in which he proposes that Section
2 should not be held to reach minority vote dilution cases at
all, only “practices that affect minority citizens’ access to the
ballot.”86 This clear break from stare decisis was occasioned
by his view that in the preference for single-member districts
and in the pursuit of the “ideal measure of voting strength,
[the Court has] devised a remedial mechanism that encourages
federal courts to segregate voters into racially designated districts to ensure minority electoral success,” thereby contribut83. “The extent to which members of a protected class have been elected
to office in the State or political subdivision is one circumstance which may
be considered: Provided, That nothing in this section establishes a right to
have members of a protected class elected in numbers equal to their proportion in the population.” 42 U.S.C. § 1973(b).
84. “Justice Thomas’s concurrence in Holder is in some ways the most
extraordinary voting rights opinion of modern times.” ISSACHAROFF S.
KARLAN, THE LAW OF DEMOCRACY: LEGAL STRUCTURE OF THE POLITICAL
PROCESS 535 (1998).
85. Holder v. Hall, 512 U.S. 874 (1994) (Thomas, J. dissenting).
86. Id. at 914.
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ing to the racial “balkanization” of the country.87 On the
other side of this debate we can place the wonderfully succinct
observation by one of the leading experts on racially polarized
voting: “Defining which candidates should qualify as ‘minority-preferred’ is a question the courts are still grappling with,
but for the purposes of this Article, we have assumed that minority voters cannot be said to have a truly equal opportunity
to elect if only their favorite white candidates can be elected to
office.”88
In New Jersey’s legislative districts Hudson County’s District 33 stands out in this regard. It is the only Latino majority
district, as noted above, and the only one that ever elected a
Latino state senator. It now consistently elects Sen. Bernard
Kenny who routinely obtains the support of the county’s Democratic political machine. In a Latino majority district Senator
Kenny is arguably the preferred candidate of Latinos – at least
of the Latinos who turnout on election day.
The Third Circuit Court of Appeals, which includes New
Jersey, has decided an important case in this regard, Jenkins v.
Manning, 89 a challenge to the at-large method of electing
members to the Red Clay Board of Education in Delaware.
The Jenkins decision rejected a Voting Rights Act challenge in
large part because of its view of the “totality of circumstances”
factor. That factor is discussed below. Nonetheless, because
Jenkins is one of the few cases in this Circuit, attention must
be paid to its view of “minority preferred” candidates.
Clearly, “minority preferred” speaks to the theoretical notion
that minority voters can elect white candidates (or even that
every minority candidate is not necessarily a “minority preferred” candidate) without running afoul of the Voting Rights
Act.
In Jenkins, the Third Circuit rejected a bright line rule that
only a minority candidate is the equivalent of a minority-pre87. Id. at 892.
88. Bernard Grofman, et al. Drawing Effective Minority Districts: A Conceptual Framework and Some Empirical Evidence, 79 N.C. L. REV. 1383,
1387 (2001) (emphasis in original).
89. Jenkins v. Manning, 116 F.3d 685 (3d Cir. 1997).
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ferred candidate, and insisted that proof of voting patterns and
lay testimony is relevant to the inquiry.90 But it went further.
A white candidate (Cavanaugh) who defeated a black candidate in 1983, then went on to win unopposed in 1988 was
deemed a “minority preferred” candidate by the lower court.91
This finding was questioned by the Third Circuit, even in the
face of a finding that the white incumbent had focused on the
needs of the black community and had supported their issues.92 And yet, the court approved as not clearly erroneous a
lower court finding that another white candidate (Reinbold)
was “minority preferred” when she ran on issues concerning
blacks, attracted the support of black leaders in the campaign,
and showed there were no barriers to a black candidate running in opposition, despite the fact that black turn out decreased disproportionately in that year (because plaintiffs
couldn’t show that the decrease was attributed to the absence
of a black candidate).93
The significance of Latino electoral success, arguably limited
as it may be, is the area that requires most of our attention in
this analysis, particularly, but not exclusively, in light of the
Page v. Bartels decision. In Page the court focused primarily
on the third Gingles factor and never fully addressed the first
two factors: “We hold that the plaintiffs have not satisfied their
burden under the third Gingles element, in other words, they
have not proved that the Bartels plan will impair minorities’
ability to elect their preferred candidate.”94 The court found
significant levels of white and Latino crossover votes to enable
black candidates to win with lower concentrations of black
voters in new Districts 27 and 34.95 It accepted expert testimony that eight out of fifteen black incumbents were elected
from districts with less than a 30% black VAP – signifying for
the court significant cross-over voting in New Jersey.96 The
90.
91.
92.
93.
94.
95.
96.
Jenkins, 116 F.3d at 693.
Id. at 695.
Id.
Id.
Page v. Bartels, 144 F.Supp. 2d at 364-65.
Id.
Id. at 365.
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decision in Page poses particular challenges for Latino voting
rights advocates if read broadly to close the door on critical
issues regarding racially polarized voting in the state. For example, the court concluded that “drawing all the threads of the
evidence together, we are satisfied that the Bartels plan is designed not to prevent or interfere with the election of minority
representatives but rather will enhance and expand the opportunity of African Americans and Hispanics to participate in a
meaningful way in the political process.”97 It is telling that in
the remainder of this section which rejected plaintiffs’ proof
on Gingles Three, the court cites evidence of racially polarized
voting but none on Latino voting patterns—all of it is black /
white.98 Moreover, the court limited its findings of fact to African American electoral success.99 What the court did find,
however, was significant proof of coalitions by blacks and
Latinos:
Though we recognize and respect that the African-American and Hispanic communities have several differing sociological and political interests, the evidence of minority
candidate coalitions and testimony about cross-over support by both Hispanic and African-American legislators
strongly suggests, and we so find, that the African-American and Hispanic communities often vote as a bloc – a fact
which may be considered in assessing the ability of either
community to elect the candidate of its choice.”100
The testimony the court considered relevant in this regard
came from Congressman Menendez and Assemblyman
Caraballo. Both testified to the common interests that their
communities share with African Americans and / or the level
of support they received from blacks in previous contests. Menendez supported the Bartels plan by testifying that he received “wide support from the African-American community
and leaders and from white voters.”101 Caraballo testified in
favor of the Bartels plan by noting that he “could not have
97.
98.
99.
100.
101.
Id.
Id.
Id.
Id.
Id.
(emphasis added).
at 365-366.
at 366.
at 358.
at 356-57.
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been elected without substantial African-American and white
support.”102
As important as this testimony is to establish the contours of
coalition politics in New Jersey, and the role of Latino leaders
within that phenomenon, the entire premise of the Menendez
and Caraballo theory, indeed the premise of the Democratic
party’s redistricting strategy in this decade, rests squarely on
the power of incumbency – a fact that the court in Page did not
address. Congressman Menendez is a case in point. He enjoys
national stature as the third highest ranking Democrat in the
House of Representatives103 and he sits in a legislative body
that has an incredibly high rate of return for sitting incumbents.104 Would not the Congressman be able to amass considerable support, financial and otherwise, from the
Democratic Party to ward off any potential challengers? And
should it surprise anyone that he can accurately and confidently say that he can be re-elected with a far lower percentage of Latino voters in his Congressional district? The real
question is what is the fate of Latino political interests in his
district if the Congressman should decide not to seek re-election.105 Would white voters readily embrace another Latino
for that seat in Congress? Would they turn out in larger numbers in the event the seat becomes an open seat?106
102. Id. at 357.
103. See, Jason Fink, Menendez leads Democrats’ Charge in Reaching Out
to Hispanic Voters, THE JERSEY JOURNAL, July 28, 2004.
104. Center for Voting and Democracy, Redistricting and Incumbent Protection in 2001-2002, at www.fairvote.org/redistricting/incumbentprotection.
htm (reporting that in 2002 only four Congressional incumbents lost to their
challengers – the lowest number in history – and that the average margin of
victory in that year was almost 40%).
105. The possibility of Representative Menendez’s departure for a higher
office, possibly the U.S. Senate, was the subject of considerable conjecture
after the recent retirement announcement by Governor James McGreevey
and the push to have U.S. Senator Jon Corzine abandon his seat for the
Governor’s post. See Senator Considers Run for Governor, THE STAR
LEDGER, Aug. 18, 2004; Jason Fink, HCDO Leaders to Call for McGreevey
to Step Down Now, THE JERSEY JOURNAL, Aug. 19, 2004.
106. The role of turnout in racially polarized voting analyses deserves further attention. For example, the absence of a minority candidate on the ballot can have an appreciable effect on minority voter turnout that may impact
upon the conclusion that a successful white candidate is somehow “minority
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Incumbency, of course, plays a significant role in all redistricting decisions. And when redistricting plans are challenged
as discriminatory, as in Page, the votes of minority legislators
in the adoption of the plan are always notable. For example,
in Page the court heralded the fact that minority legislators
supported the Bartels plan and “felt confident that the plan
would increase minority election opportunities over the next
ten years.”107 The real question here is how Latino voters can
divorce their independent interests from the interests of their
representatives who must weigh multiple factors in deciding
whether to support a plan, such as, incumbency protection or
legislative leadership and power for sitting incumbents.108 It
almost goes without saying that relying upon minority representatives’ views on how plans affect minority voting power is
problematic, exactly because they have other competing interests to serve.109
preferred” as noted above in the Jenkins case. See Jenkins v. Red Clay Consol. Sch. Dist. Bd. of Educ., No. 89-230-LON, 1996 U.S. Dist. LEXIS 4747, at
*21-22 (D. Del. Apr. 10, 1996). Conversely, does the power of incumbency,
especially in Congressional elections, depress turnout among white voters in
a way that overstates the role of white crossover voting for minority candidates? Dr. Lichtman’s analysis in Page v. Bartels confirms Congressman Menendez’s testimony that white crossover voting exists in New Jersey – the
linchpin for the court’s refusal to find a Section 2 violation in that case. But
as noted above, the inquiry here is what do these findings say about white
crossover support for Latino candidates.
107. Page v. Bartels, 144 F.Supp. 2d at 366. See also, Georgia v. Ashcroft,
539 U.S. 461, 484 (2003) (Under Section 5 of the Voting Rights Act “it is also
significant, though not dispositive, whether the representatives elected from
the very districts created and protected by the Voting Rights Act support the
new districting plan.”)
108. See Georgia v. Ashcroft, 539 U.S. 461, 483 (2003) (In a Section 5
Voting Rights Act case the ability to elect is not dispositive and courts
should also examine whether redistricting plans promote “legislative leadership, influence and power for representatives.”)
109. Meghann Donahue, “The Reports of My Death are Greatly Exaggerated”: Administering Section 5 of the Voting Rights Act After Georgia v. Ashcroft, 104 Colum. L. Rev. 1651, 1670 (2004) (“Minority representatives not
only cannot be charged with the responsibility to know the statistical voting
patterns of their district, but also cannot be assumed to have only minority
voters’ interests in mind when voicing support for a plan.”)
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BEYOND GINGLES: THE TOTALITY
OF CIRCUMSTANCES FACTOR
A number of cases post-Gingles have held that even accepting proof that all three Gingles factors are met, a finding
of a Section 2 violation may not be in order if under the totality of the circumstances, the plaintiffs have enjoyed an equal
opportunity to participate in the political process and elect
candidates of choice.110 In New Jersey, the Red Clay school
district case discussed above, Jenkins v. Manning, is illustrative. In Jenkins I,111 the same court ruled that it would be a
“highly unusual case” in which plaintiffs could lose even after
meeting the three Gingles prerequisites. Minority electoral
success is the linchpin here and this court ruled that this was
such an “unusual” case. Jenkins noted that there was substantial minority electoral success:
“Considering that black voters comprise only 13% of the
VAP (Voting Age Population), their success has been great. It
has not been persistent or sustained, but it has been impressive.”112 The majority opinion here noted that while several
black candidates were defeated, often by whites, others were
successful and in some elections, blacks were able to elect
white candidates of their choice. The dissent observed that in
a decade’s worth of elections, only three African-American
candidates ever won: one in a never-repeated plurality win,
one who won by defeating another black candidate, and one in
a little-noticed, mid-term election: “This hardly exemplifies
substantial or consistent electoral success.”113
The “totality of circumstances” avenue would allow courts
in New Jersey to address important and related issues that affect Latino voting and electoral success. One very important
factor in New Jersey politics is the role of the county political
machinery and slating. The slating of candidates by the political parities authorized by the state to automatically run candi110. See Johnson v. DeGrandy, 512 U.S. 997 (1994).
111. Jenkins v. Red Clay Consol. Sch. Dist. Bd. of Educ., 4 F.3d 1103 (3d
Cir. 1993).
112. Jenkins, 116 F.3d 685, 696 (3d Cir. 1997).
113. Id. at 701-02 (Rosenn, J., dissenting).
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dates is already a recognized area of proof in Section 2
cases.114 In the Jenkins case the lower court had found that
the slating processes in Delaware were open to African-Americans.115 To what extent are the processes open to Latinos in
New Jersey? The issue in New Jersey is further complicated
by the fact that it uses multimember districts for its Senate and
Assembly. For example, the Page v. Bartels opinion noted that
the building of cross-racial coalitions is a strategy in these multimember districts. It referred to Assemblyman Caraballo’s
testimony that because one district elects three representatives, coalitions ensure “that the ticket included representatives of racial groups that reside in the district in significant
numbers.”116 This in turn raises additional questions about the
slating process in the State: to what extent are districts with
sizeable racial minorities allocated only one of the three spots
on the slate? Who makes those decisions and how are Latino
concerns addressed, if at all, by these decision makers? Another set of inquiries could easily focus on the New Jersey Senate and the slating processes for those seats. This is
particularly relevant because an Assembly member like Wilfredo Caraballo or Nilsa Cruz Perez (the two most senior Latino Assembly members in the State)117 has demonstrated
electability within the district – the very same district that
elects a state Senator. Thus, to what extent are candidate slating processes for the state senate allowing for legitimate Latino candidates to run for the Senate in a state that has only
had one Latino state senator in its history?
In this respect the current representation within the state
delegation of Hudson County’s three legislative districts is illustrative of the political realities that confront its largest voting bloc: Latino voters. In July 2004, the delegation included
the following:118
114.
115.
116.
117.
118.
See Jenkins, 780 F.Supp. at 223.
Id. at 235.
Page v. Bartels, 144 F.Supp. 2d 346, 357 (D.N.J. 2001).
See Rodriguez, supra note 13 (table of Latino elected officials).
Legislative Roster, at www.njleg.state.nj.us/members/roster.asp.
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District 31: Senator Joseph Doria
Assemblyman Anthony Chiappone
Assemblyman Louis Manzo
District 32 Senator Nicholas Sacco
Assemblyman Anthony Impreveduto
Assemblwoman Joan Quigley
District 33: Senator Bernard Kenny
Assemblyman Albio Sires
Assemblyman Brian Stack
In District 33 Assemblyman and Union City Mayor Brian
Stack in 2003 replaced Rafael Fraguela who lost the Democratic Party support and ran for Senate on the Republican line.
In District 31, in the same year, Elba Perez Cincarelli lost a reelection bid to the team of Chiappone and Manzo. And in
2004 the Democratic Party’s district leaders appointed former
Assemblyman (and former Bayonne Mayor) Joseph Doria to
the term of the late Glenn Cunningham, Jersey City’s first African-American mayor who died in office. As a result, Jersey
City, the state’s second largest city, does not have its own state
senator.119 And the largest concentration of Latinos anywhere
in New Jersey has only one Latino elected official out of nine
positions within its delegation: Assembly Speaker Albio Sires.
Obviously, the state’s candidate slating processes can justify,
for good or for bad, the fact that in Hudson County with so
many Latinos and African-Americans, whites are over-represented to the tune of eight out of nine elected positions.
Coalition politics in Hudson County, at least the form of coalition politics lauded by Assemblyman Caraballo in the Page
case, as noted above, is working to the detriment of Latino
representation and to the benefit of ethnic white voters in
Hudson County at this time.
Another important area of proof under the totality of circumstances standard is the history of discrimination in the political process against Latinos in the State. Take for example,
the history of English-only elections in New Jersey and their
119. Indeed, by July 2004 Jersey City could only claim two out of current
nine positions in this delegation.
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impact on Latino voting strength. Providing access to language minority voters of the State of New Jersey has a long
history in the Garden State – all of it initiated as a result of the
efforts of civil rights advocacy organizations that addressed issues of concern to Puerto Rican communities first, then to
other Latino communities and now to Asian American communities.120 These advocates used the federal courts, and recently the federal Department of Justice, as the primary
vehicles to enforce the guarantee of the right to vote to citizens who have yet to master the English language. Now with
the passage of Help America Vote Act,121 New Jersey is poised
to enforce these elementary protections and play a leadership
role in providing access to the vote to language minority
citizens.
Thirty years ago in 1973 a federal court in Newark ordered
election officials in Hudson and Essex counties to comply with
Section 4 (e) of the Voting Rights Act by providing bilingual
(Spanish and English) voter registration forms, and other
materials and assistance to the mostly Puerto Rican populations of those counties at that time in the case of Marquez v.
Falcey.122 With the subsequent passage of the bilingual assistance provisions of the Voting Rights Act,123 additional counties in the State were required to provide written and oral
assistance to the growing Latino population of New Jersey. In
the 1990s these included Essex, Hudson, Middlesex, Passaic
and Union counties. In this decade, Bergen and Cumberland
counties were added in recognition of the growing population
of Latinos in the State.124
120. See New Jersey Citizen’s Coalition on Implementation of the Help
America Vote Act, Making New Jersey’s Votes Count, February 2004 (on file
with author) (lists both the Asian American Legal Defense and Education
Fund and the Korean American Voters’ Council – NY/NJ, among other
groups who seek a number of improvements to the multi-lingual voting assistance provided in New Jersey).
121. 42 U.S.C. § 15301.
122. Civil No. 1447-73 (D.N.J.) (Consent Decree, Oct. 9, 1973).
123. H.R. REP. No. 91-397, reprinted in, 1970 U.S.C.C.A.N. 3377.
124. Jurisdictions Covered under Secs. 4(f)(4) and 203(1) of the Voting
Rights Act of 1965, as amended, 28 C.F.R. app. §55 (2004).
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These federal protections were codified in the New Jersey
election code (Title 19), which includes numerous references
to providing assistance to Spanish speaking voters for counties
in which the primary language of ten percent or more of its
registered voters is Spanish.125
And yet enforcement of these language minority protections
is often left to the federal courts or the federal government. In
1989, a federal court in Vargas v. Calabrese 126 issued a Consent
Decree to increase the availability of Spanish speaking district
board members at the polls in Hudson County and to ensure
that new procedures and complaint forms for voters being
challenged were available in Spanish. In the late 1990’s the
U.S. Department of Justice sued Passaic county and city election officials (United States v. Passaic City) for their failure to
comply with the bilingual provisions of the Voting Rights Act
which resulted in a significant Consent Decree that forced
election officials to engage in recruitment of bilingual election
workers, publish election notices and materials in Spanish, and
provide voter assistance to Spanish-speaking voters.127
Finally, the totality of the circumstances factor in Section 2
cases would allow for a full elaboration of episodic practices of
voter discrimination against Latino voters in the Garden State.
Section Two’s broad proscription of practices that result in
voter discrimination extend to practices beyond structural impediments; episodic practices are equally outlawed.128 For example, voter intimidation and selective, election day challenge
procedures against Puerto Rican and Latino voters have been
challenged in federal courts in New Jersey. The Vargas v.
Calabrese litigation, noted above, sought relief for a class of
African-American and Latino voters who clearly rejected the
125. N.J. STAT. ANN. § 19: 23-22.4 (1999).
126. Civil No. 85-4725, (Consent Decree issued January 3, 1990). For
background on this litigation, see, Vargas v. Calabrese, 634 F.Supp. 910
(D.N.J. 1986); 714 F.Supp. 714 (D.N.J. 1989); 750 F.Supp. 677 (D.N.J. 1990).
127. US v. Passaic City, No. ___ (D.N.J. issued Consent Decree June
1999), available at www.usdoj.gov/crt/voting/sec_203/documents/passaic.htm
(last visited Jan. 12, 2005).
128. See S. REP. NO. 417, 97th Cong., 2d Sess., 30 reprinted in 1982 U.S.
Code Cong. & Admin. News 177, 207.
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incumbent administration of Mayor Gerald McCann in a municipal election and were subject to a series of targeted actions
to “slow down the vote” in those sectors (especially public
housing residents) in a hotly contested runoff election in June
1985.129 The Vargas litigation resulted in significant reforms of
election procedures in Hudson County130 which later were
codified in the state’s election code:
No member of the district board and no duly authorized
challenger shall, however, challenge, delay or prevent the
right to vote of any person because of that person’s race,
color, national origin, expected manner of casting a vote or
residence in a particular ward, housing complex or section
of a municipality or county . . . .131
The Vargas litigation also resulted in a Consent Decree
where two defendants denied liability but, nonetheless, consented to an order that would prohibit them in future elections
from challenging voters “based on a voter’s race, color, ethnicity, creed, residence in the housing projects.”132 Other litigation in the 1980s in New Jersey addressed the issue of unlawful
intimidation tactics133 against black and Hispanic voters. In
1982, the Republican National Committee and the New Jersey
Republican State Committee entered into a Consent Order in
federal court which, while not establishing liability or constituting an admission of such liability, clearly proscribed the actions of the so-called “National Ballot Security Task Force”
which had undertaken a number of activities in the November
1981 statewide election, allegedly against qualified black and
Hispanic voters.134 The Consent Order proscribed both Republican political entities to
129. See Vargas, supra note 114. “”“”
130. See Vargas v. Calabrese, supra note 114, Consent Decree.
131. N.J. STAT. ANN. § 19:15-18 (1999).
132. The two defendants were Gerald McCann and Mark Munley. See
Vargas v. Calabrese, supra note 114, Consent Decree, at ¶ 2A.
133. Racially based intimidation tactics on election day are clearly cognizable under the Voting Rights Act. See Harris v. Siegelman, 695 F.Supp. 517
(M.D. Ala. 1988).
134. Democratic National Committee v. Republican National Committee,
Civil No. 81-3876, (D.N.J. issued Consent Order Nov. 1, 1982) and Democratic National Committee v. Republican National Committee, Civil No. 813876, (Complaint of Dec. 14, 1981) (pleadings on file with author).
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refrain from undertaking any ballot security activities in
polling places or election districts where the racial or ethnic
composition of such districts is a factor in the decision to
conduct, or the actual conduct of, such activities there and
where a purpose or significant effect of such activities is to
deter qualified voters from voting . . .; [and] refrain from
attiring or equipping agents, employees or other persons . . .
in a manner which creates the appearance that the individuals are performing official or governmental functions, including, but not limited to, refraining from wearing public
or private law enforcement or security guard uniforms . . .
[and] refrain from having private personnel deputized as
law enforcement personnel in connection with ballot security activates.135
Accordingly, there is some precedent in New Jersey using
the federal courts to protect the federal Constitutional and
statutory rights of Latino voters from unlawful and discriminatory election day challenge practices and intimidation tactics.
CONCLUSION
This article has focused specifically on the gap between Latino representation by Latino elected officials in Trenton and
Latino political strength – both real and potential - within the
context of historical practices and policies that have excluded
Latinos from full participation in the political life of the state
and within the current governance structures that dictate how
Legislators get elected to the State House. In many ways,
however, the tension between direct representation of a protected minority in the State and the ability of the current system’s office holders to adequately represent these minority
interests, regardless of their race, goes eventually to the very
issue of race in America and the use of remedies based on race
to eliminate, or at least ameliorate, existing disparities and historical exclusion.
The discussion can start with an examination of what “representation” means in a democracy. Earlier works by political
scientists point to three basic components of representation:
135. Democratic National Committee v. Republican National Committee,
Civil No. 81-3876, (D.N.J. issued Consent Order Nov. 1, 1982, ¶’s 2(e), (f)
and (g) of the Settlement Agreement) (on file with author).
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descriptive, symbolic and substantive representation.136 Descriptive representation is achieved when the representative
comes from the same social or demographic group that she
represents in an elected government. Substantive representation is obtained when representatives get results consistent
with, and responsive to, the political needs of their constituents, regardless of the representative’s race or social background. Symbolic representation, on the other hand, is either
descriptive representation without the substance, or as more
recently understood, a worthy concept on its own merits that
creates trust in the relationship between representatives and
their constituents.137
The question raised herein, however, is whether Latinos
have to be descriptively represented in the New Jersey Legislature to be fairly represented by the State’s current governance
structures.
Recent U.S. Supreme Court cases demonstrate that the issue is not a mere abstract, theoretical notion, instead it has
direct effects in the way the judiciary will respond to claims of
voting rights discrimination. Theorists who argue that the focus on race and ethnicity continues to create an unnecessary
racial divide criticize advocates for descriptive representation,138 including the kind advanced in this article. These commentators argue that as long as these advocates insist on
majority minority districts as a mechanism for achieving descriptive representation, they endanger the country by “Balkanizing” the political system in the words of Justice Thomas
in Holder v. Hall 139 and, more importantly in the reasoning of
136. HANNA F. PITKIN, THE CONCEPT OF REPRESENTATION 60-111
(1967).
137. For a discussion of these three components of representation and the
current literature that explores these principles see KATHERINE TATE,
BLACK FACES IN THE MIRROR: AFRICAN AMERICANS AND THEIR REPRESENTATIVES IN THE U.S. CONGRESS 13-17 (2003).
138. See e.g., CAROL M. SWAIN, BLACK FACES, BLACK INTERESTS: THE
REPRESENTATION OF AFRICAN AMERICANS IN CONGRESS (1993). STEPHAN
THERNSTROM AND ABIGAIL THERNSTROM, AMERICA IN BLACK AND WHITE
(1997).
139. 512 U.S. 874, 892 (1994) (Thomas, J. & Scalia, J. dissenting).
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Justice O’Connor in the watershed case of Shaw v. Reno.140
Last term the Supreme Court squarely addressed these concerns in another redistricting case, Georgia v. Ashcroft, which
addressed descriptive representation versus substantive representation of minorities within legislatures.141 Justice
O’Connor elaborated upon the perceived advantages and disadvantages of both strategies as a means to create fair voting
systems. “Descriptive representation” would result in the creation of safe minority districts, that is districts with high minority concentrations, in order to maximize the electoral success
of the minority group. Such districts would result in “more
‘descriptive representation’ because the representatives of
choice are more likely to mirror the race of the majority of
voters in the district, [however] the representation may be limited to a fewer areas.”142 Conversely, spreading out minority
voters among more districts increases the opportunities for minorities to elect candidates of choice. And while Justice
O’Connor acknowledges that these influence districts run the
risk that the minority group’s preferred candidates may lose
“[s]uch a strategy has the potential to increase ‘substantive
representation’ in more districts, by creating coalitions of voters who together will help to achieve the electoral aspirations
of the minority group.”143 In Georgia v. Aschcroft the Court,
like the federal court in Page v. Bartels in 2001, sanctioned the
use of influence districts as a method of complying with the
Voting Rights Act. Thus, the trend is now in favor of influence
districts that focus less on descriptive representation and more
on the promise of substantive representation of minority political interests. More importantly, Georgia v. Aschcroft allows
courts to assess the “comparative position of legislative leadership, influence and power” of representatives from minority
districts, another nod in favor of the “substantive representa140. Shaw v. Reno, 509 U.S. 630 (1993).
141. Georgia v. Ashcroft, 539 U.S. 461, 480-84 (2003). It is important to
note that Georgia v. Ashcroft is a Section 5 Voting Rights Act, not a Section
2 case. Section 5 does not apply in New Jersey. See 28 C.F.R. § 51 (1995).
142. Georgia v. Aschcroft, 539 U.S. at 481.
143. Id.
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tion” goal.144 This new and complicated standard for Section 5
compliance places federal courts in the very unenviable task of
assessing minority electoral success within the context of “partisan battles for legislative hegemony.”145 In New Jersey, its
application turns once again to the question of whether Latino
voters are better served by having fewer, more powerful, representatives in Trenton than having more Latinos serving.
On the other side of this debate is a reexamination of the
value of descriptive representation for its own sake. Legitimate questions can be raised about whether descriptive representation results in a more active constituency of minority
voters, in a minority community that perceives, correctly or
not, that it is better represented when its representatives come
from their same demographic group, and in a minority electorate that is convinced that minority representatives strive to
represent them better than white representatives.146 In addition, other political scientists advance the notion that descriptive representation of racial minorities serves to dispel the
myths of the inability of minorities to adequately play a leadership role, that it questions the paternalistic notion that
whites can represent minority concerns as good or better than
minority legislators, and that it also serves as an entry point for
racial minorities into politics which then allow minority legislators to be seen as capable of representing all racial groups.147
Unfortunately, most of the public debate on this issue limits
its focus to black / white dynamics with no appreciation of how
Latinos would fare under a new construct: a troubling omission in the face of the Latino population boom in the country.
Jeffrey Toobin recently repeated what is being whispered in
144. Id. at 483.
145. Samuel Issacharoff, Is Section 5 of the Voting Rights Act a Victim of
its Own Success, 104 Colum. L. Rev. 1710, 1730 (2004).
146. For a discussion of these research questions within the AfricanAmerican community see, KATHERINE TATE, BLACK FACES IN THE MIRROR: AFRICAN AMERICANS AND THEIR REPRESENTATIVES IN THE U.S. CONGRESS 13-17 (2003).
147. BERNARD GROFMAN ET AL., MINORITY REPRESENTATION AND THE
QUEST FOR VOTING EQUALITY 134-37 (1992).
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the Capitol: “Is the Voting Rights Act obsolete?”148 In similar
vein Henry Louis Gates, Jr. echoes these points by noting that
the previous salutary effects of the Voting Rights Act may
have waned.149 The absence of Latino concerns to date in a
debate that will peak with the reauthorization battle in Congress of key provisions of the Voting Rights Act in 2007 is remarkable. It is also reflected in the political science literature
and research on these questions which again parrots this black
/ white construct. Rudolfo de la Garza is maybe one of the
exceptions in this regard with his review of the nascent literature on Latino political behavior.150 And yet without addressing the issues advanced herein, such as, the effects of at-large
elections on Latino voting strength, access to the polls through
bilingual assistance or the pressing need to stop voter intimidation tactics, de la Garza categorically and inexplicably questions the need for Voting Rights Act protections for
Latinos.151
It would be interesting to test his view against the historical
and political backdrop in New Jersey for the largest minority
in the state with no Latino representation in the Senate and
where whites occupy eight out of nine seats in the county with
the largest concentration of Latinos.
Descriptive representation of Latino political interests arguably has a place in New Jersey for these reasons and more.
The inability of Latinos to fully integrate the legislative body
should be of concern to all residents in New Jersey.
148. Jeffrey Toobin, Poll Position: Is the Justice Department Poised to Stop
Voter Fraud – or Keep Voters From Voting?, THE NEW YORKER, Sept. 20,
2004.
149. Henry Louis Gates, Jr., When Candidates Pick Voters, THE NEW
YORK TIMES, Sept. 23, 2004.
150. Rudolfo de la Garza, Latino Politics, 7 ANN. REV. POLIT. SCI. 91-123
(2004).
151. Id. at 115-16 One reading of de la Garza’s pronouncement would
limit its reach to majority-minority districts. But that is not at all clear in the
context of his article. At a time when the country is approaching the debates
on reauthorizing various sections of the Voting Rights Act, including the
bilingual assistance provisions, his blanket rejection of the Act’s protections
appear to be unsubstantiated. .
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The experiences of the McGreevey administration with New
Jersey Supreme Court appointments has added another chapter to this pressing need to ensure that electoral structures
fairly reflect Latino voting strength: During Governor McGreevey’s first years in office a major event for New Jersey’s
Latino community unfolded as the Governor sought to fill a
position in the New Jersey Supreme Court created by the departure of the first and only African-American jurist on the
Court. His first announced choice was a Latina attorney of
incredible talent and commitment, Zulima Farber of Afro-Cuban background. He ultimately dropped Ms. Farber for what
were pretextural reasons and ultimately gave in to the political
pressure of African American elected officials by eventually
appointing another African-American to the bench.152
Much was made in the press and in the halls of Trenton
about the competing demands of loyal Black and Latino Democrats upon the new Governor and about the manner in which
his office withdrew his support for Ms. Farber.
What was often neglected is that the Senate of New Jersey,
which by law must confirm such appointments, is composed of
40 members without one Latino or Latina among them. “We
don’t have a single Latino senator. This is abominable,” Assemblyman Wilfredo Caraballo was quoted as saying long
before the Farber controversy.153 Indeed, New Jersey is apparently the only state with a Latino population that exceeds
ten percent that did not have a Latino in its Senate154 and until
only recently never had a Latino on its Supreme Court.155
Eliminating New Jersey’s questionable multi-member legislative district scheme may not have prevented what many Latinos still consider a slight to their community. But it would in
152. See, Walter Fields, Supreme Silliness: Black Politicians in New Jersey
Reach New Low, THE NORTHSTAR NETWORK, April 14, 2003, available at
www.thenorthstarnetwork.com.
153. Hispanics Rrework Political Map to Give Their Candidates an Edge,
THE STAR-LEDGER, March 27, 2001.
154. Id.
155. Governor McGreevey nominated and the New Jersey state senate
approved in June 2004 the appointment of Roberto Rivera Soto, Puerto Rican, to the New Jersey Supreme Court.
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RUTGERS RACE & THE LAW REVIEW
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[Vol. 7
the long term provide enough political power to Latinos that
may translate to increasing political power in places that Latinos have yet to consistently penetrate.