The compactness requirement has become a rule without a ruler. To curb gerrymandering, many state and local laws require electoral districts to be compact.1 Yet courts — faced with uncertainty over how to measure compactness and what level of compactness is sufficient — have shied away from developing workable standards to assess and enforce those compactness requirements.2 Recently, in Jersey City United Against the New Ward Map v. Jersey City Ward Commission,3 the Supreme Court of New Jersey held that Jersey City’s ward map complied with the state’s compactness requirement for municipal wards.4 However, by resting on a “bizarre[ness]” standard to assess compactness,5 the court adopted an approach that provides little guidance to courts and legislators, while overlooking alternatives that would have better implemented the state’s compactness requirement and maintained appropriate deference to legislatures.
The Municipal Ward Law6 (MWL) requires that any map dividing a New Jersey municipality into wards satisfy three criteria: compactness, contiguity, and population equality.7 After each decennial census, each municipality’s ward commission must evaluate whether its map complies with those three requirements and revise the map if necessary.8 The 2020 Census revealed that there was a fifty-nine percent population deviation between two of Jersey City’s wards, “far exceed[ing] the maximum . . . authorized.”9 Accordingly, on January 22, 2022, the City of Jersey City Ward Commission (Commission) adopted a new map of Jersey City’s six wards,10 over some public opposition.11
Two groups of plaintiffs — including residents, community organizations, and a city councilperson — challenged the new map.12 They contended that the wards were not sufficiently compact for two reasons.13 First, the wards earned low compactness scores under two common mathematical measures, known as Polsby-Popper14 and Reock.15 Second, the wards split longstanding communities of interest.16 These flaws, they claimed, meant that the map violated the MWL, the New Jersey Civil Rights Act17 (CRA), and state constitutional rights to free speech, association, and equal protection.18 They also alleged violations of the Open Public Meetings Act19 (OPMA) and retaliation against Councilperson Frank Gilmore in violation of the CRA.20 The Superior Court, however, sided against the plaintiffs.21 It dismissed their complaints for failure to state a valid claim.22
The Appellate Division of the Superior Court affirmed in part and reversed in part.23 Beginning with the MWL claim, the court held that compactness should be assessed using a “rational basis” test.24 Accordingly, it reversed for “limited fact-finding” as to the Commission’s basis for the map’s configuration.25 Though its holding did not close the door for the plaintiffs, the court emphasized its “limited” role.26 It refused to consider whether there could be a more compact map and concluded that the plaintiffs could not challenge compactness based on “models” that the Commission did not use, such as Polsby-Popper and Reock.27 The court also held that a challenge based on the splitting of communities of interest was not cognizable under the MWL.28 The court then dismissed the plaintiffs’ equal protection, free speech and association, OPMA, and CRA claims.29 Plaintiffs appealed the rulings on the MWL, equal protection, and CRA claims.30
The Supreme Court of New Jersey affirmed in part and reversed in part.31 Writing for the court, Justice Patterson32 set the stage by emphasizing its deferential posture: “[R]eapportionment,” Justice Patterson explained, “is essentially a political and legislative process.”33 Before addressing the MWL claim head-on, the court summarized its precedent on state compactness requirements: “[C]ompactness is an elusive concept,”34 it is often less important than population equality,35 and it can be assessed “by visual inspection.”36
Next, the court reached two conclusions concerning procedural requirements under the MWL. First, the court held that the Commission was not required to use mathematical measures such as Polsby-Popper or Reock scores when assessing compactness.37 Second, the court held that the Commission was not required to consider the impact of its map on communities of interest.38 Justice Patterson reasoned that nothing in the MWL or its legislative history imposed either requirement.39
Finally, the court considered the compactness requirement directly.40 The court held that each of the challenged wards was sufficiently compact.41 Justice Patterson explained that it was not the court’s role to consider whether any more compact map could exist: The court was required simply to assess the map in front of it.42 Based on a visual inspection, Justice Patterson found that, unlike the horseshoe or shoelace configurations addressed in prior cases, the wards were not “bizarrely shaped.”43 Since the plaintiffs’ equal protection and CRA arguments hinged on their compactness argument, those claims fell in turn.44
Justice Wainer Apter45 concurred in part and dissented in part.46 First, she argued that the plaintiffs alleged sufficient facts to survive a motion to dismiss their MWL claim.47 She accused the majority of “devalu[ing]” the statute’s compactness requirement by deeming it “an elusive concept.”48 She pointed out that the majority’s cited precedent concerned not municipal redistricting, but legislative redistricting, for which it is far more challenging to draw compact districts.49 Next, Justice Wainer Apter argued that the plaintiffs could survive a motion to dismiss because — based on Polsby-Popper, Reock, and a visual inspection — they showed that compactness had “substantially declined” compared to the prior map.50 Nonetheless, she concurred with the majority’s dismissal of the remaining claims.51
Leveraging the significant latitude that courts have when faced with judicially unmanageable legal requirements, the Jersey City United court should have devised a manageable test that implements the MWL’s compactness requirement. Instead, the court adopted a “bizarre[ness]” standard,52 which is no more manageable than the statutory compactness requirement itself is and provides little guidance to lower courts, legislatures, and municipalities. In the process, the court overlooked several alternative doctrinal approaches that would have more faithfully implemented the statute while addressing administrability concerns and preserving appropriate deference to legislatures.
Where substantive legal requirements are judicially unmanageable, courts often develop manageable standards to implement them. In the context of constitutional adjudication, Professor Richard Fallon distinguishes between the meaning of a constitutional provision and its implementing doctrine.53 When the Supreme Court “determin[es] that the language of a constitutional provision is not itself a judicially manageable standard,” the “Court assumes a responsibility to devise a judicially manageable standard.”54 Likewise for statutory adjudication: When statutory requirements prove judicially unmanageable, courts devise judicially manageable doctrine to implement them.55 Whether a legal requirement or doctrinal test is manageable largely turns on whether future courts are likely to apply it consistently and predictably.56 That determination, in turn, may depend on several variables, including whether there is “relative consensus . . . about the meaning of underlying norms” or whether there are “partisan implications” that are likely to sway judges.57
The MWL’s requirement that a ward be compact is judicially unmanageable. Before assessing an electoral district for compactness, a court must confront two issues, both of which are unsettled. First, a court must consider how to measure compactness.58 However, scholars have proposed nearly one hundred measures;59 even in a single case, courts have considered at least six.60 Second, a court must consider what level of compactness is sufficient. Compactness is measured on a continuum61: Even when assessing compactness visually, a district’s compactness is typically evaluated relative to alternatives.62 But a compactness requirement asks for a binary result, creating a line-drawing problem. And that problem is complicated by the need for courts to determine how compactness should be prioritized relative to other redistricting criteria, such as population balancing. Since there is a lack of consensus on both issues, requiring courts to apply a compactness requirement without further guidance risks producing inconsistent and unpredictable results.63
But, in response to the MWL’s unmanageable compactness requirement, the Jersey City United court applied a standard that was likewise unmanageable. Following precedent, the court assessed compactness by considering whether the wards were “bizarrely shaped.”64 The court did not define “bizarrely shaped,” and it explained the standard only by providing two examples: “‘horseshoe’ and ‘shoelace’ configurations.”65 Bizarreness could be read to mean highly noncompact. But merely restating the statutory input while gesturing at an ambiguous threshold does little to aid future decisionmaking. Alternatively, bizarreness could be read to mean something other than noncompactness. But the natural alternative — the ordinary meaning of bizarreness — is at least as vague as noncompactness is. In ordinary language, something is bizarre if it is “strikingly out of the ordinary.”66 As scholars have noted for the absurdity doctrine, which also attempts to capture deviation from the ordinary, this requirement is so general that it grants courts “broad . . . discretion”67 and is unlikely to improve the consistency and predictability of future decisions.
A third possible reading of the court’s bizarreness standard also falls short. The most restrictive reading of the court’s standard would limit noncompactness to examples identified in prior holdings — that is, boundaries resembling a horseshoe or shoelace. The court offers little guidance on how far a shape’s boundaries can deviate from those examples. Even so, this interpretation may be more manageable than directly applying the compactness requirement. However, it poorly tracks compactness: A shape can be highly noncompact without resembling a horseshoe or shoelace — for example, a three-point star familiar from the Mercedes-Benz logo.68 The core problem with this approach is comparative: Other implementing rules better track compactness, are more manageable, and preserve appropriate deference to the mapmaking body.
The court could have devised a better rule, taking advantage of the flexibility of implementing doctrine, in several different ways. This comment outlines two: one based on mathematical metrics and one based on visual guidance.
First, a court could take a relative approach based on mathematical metrics. Professor Michael McDonald proposes such a framework, which he calls the “Predominance Test.”69 Under this framework, challengers draw a maximally compact map that complies with all legal requirements.70 Next, for every challenged district, the court must “identify the nearest equivalent district,”71 by either area or population.72 Finally, the court compares the compactness of the challenged district to that of the comparison district by mathematical metric.73 McDonald proposes a fifty-percent threshold: If the value for the challenged district is less than half the value for the comparison district, then the district violates the compactness requirement.74 McDonald’s is not the only relative approach. Alternatively, a court could consider how the existing map compares to simulated maps.75 In either case, the relative approach balances administrability76 with accuracy. It also allows courts to calibrate deference by adjusting either the threshold or the test to require maps to survive comparisons on multiple metrics.
The Jersey City United court’s reasoning might prevent future New Jersey courts from developing a relative metric. In her majority opinion, Justice Patterson asserted that courts should not consider whether a more compact map could exist.77 That could be interpreted to bar any approach that involves the consideration of a more compact map, even just as a baseline. In fact, the plaintiffs in Jersey City United proposed an alternative map78 that the majority opinion did not consider.79 Still, that is not the only interpretation of the majority’s argument. As justification, Justice Patterson wrote that the court’s only task is to consider the compactness of the existing map.80 Since a more compact map would merely be a tool in that inquiry, it may be permissible. Moreover, the court’s aversion to alternative maps is grounded in deference to the legislature.81 Since the Predominance Test can preserve deference in other ways, a ban on considering alternative maps might be unnecessary to achieve the court’s goal.
Second, a court could take a guided visual approach. To craft a manageable standard, a court should lay out what specific features might make a ward noncompact.82 A statistical model developed by Professors Aaron Kaufman, Gary King, and Mayya Komisarchik suggests that more compact districts are generally “squarish, with minimal arms, pockets, . . . or jagged edges.”83 Accordingly, a court could explain that a ward is presumptively noncompact if it has either numerous or sizable arms, pockets, or jagged edges. If a ward fails this inquiry, the Ward Commission could rebut that presumption by demonstrating that the problematic visual features were justified by municipal boundaries or other legal requirements.
One might object that implementing doctrines, such as the two proposed approaches, come with a cost: By underenforcing or overenforcing the underlying statutory requirement,84 they ignore the legislature in favor of the courts. The answer to this objection depends on whether the court selects an implementing doctrine that errs in the direction of underenforcement or overenforcement. If the former, the proposed approaches are already an improvement. The risk of underenforcement is much higher for the court’s approach, because the vague bizarreness standard does little to constrain future courts. Moreover, some underenforcement might align with New Jersey precedent. Justice Patterson explained that, since political considerations and redistricting are intertwined, courts must generally take a deferential approach to redistricting cases.85 Any underenforcement would shift power back to the political bodies entrusted with mapmaking, aligning with the court’s deferential posture. If the doctrine is overenforcing, the proposed approaches could be justified by political process concerns. Professor John Hart Ely, a champion of political process theory,86 argued that courts should intervene in the political process to prevent self-interested legislators from “choking off the channels of political change.”87 Accordingly, overenforcement might be justified to prevent legislators from drawing maps that favor those in power. In short, a court may have good reason to permit some underenforcement or overenforcement.
The court’s approach in Jersey City United perpetuated a persistent problem: Courts lack workable standards to assess and enforce the many state and local compactness requirements. Yet the court could have taken a different path. At least two alternative approaches better effectuate the statute while ensuring consistent and predictable results. By failing to leverage its latitude to craft implementing doctrine, the Jersey City United court failed to provide clear guidance to lower courts, missing an opportunity to be a model for state courts interpreting compactness standards around the country.