                                                                                                                           Opinions of the United
2001 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-23-2001

Page v. Bartels
Precedential or Non-Precedential:

Docket 01-1943




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Recommended Citation
"Page v. Bartels" (2001). 2001 Decisions. Paper 86.
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Filed April 23, 2001

UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

No. 01-1943

DONALD PAGE; GERTRUDE WATERS; HAROLD
EDWARDS; KATHY EDWARDS; WILLIAM COSTLY; CAROL
G. SCANTLEBURY; JOSE A. CABEZA; VICTOR CABEZA;
ANTONIO J. ALMEIDA; MARIO H. NENO; DAVID V ARGAS;
ELVI VASQUEZ; JOSEPH ARTEAGA; FRED SHAW;
CHARLES ROBINSON; AARON COLLINS; ALLEN
BARNHARDT; THE STATE SENATE REPUBLICAN
MAJORITY; ASSEMBLY REPUBLICAN MAJORITY ,
Appellants

v.

LARRY BARTELS; RICHARD CODEY; SONIA DELGADO;
THOMAS GIBLIN; LEWIS GREENWALD; BONNIE
WATSON-COLEMAN, in their official capacity as Members
of the STATE OF NEW JERSEY APPORTIONMENT
COMMISSION; DEFORST B. SOARIES, JR., Secretary of
the State of New Jersey; JOHN FARMER, Attor ney
General of the State of New Jersey

On Appeal From the United States District Court
For the District of New Jersey
(D.C. Civ. No. 01-cv-01733)
District Judge: Honorable Dickinson R. Debevoise

Argued: April 23, 2001

Before: BECKER, Chief Judge, GAR TH and GREENBERG
Circuit Judges.

(Filed: April 23, 2001)
FREDERICK L. WHITMER, ESQUIRE
 (ARGUED)
Pitney, Hardin, Kipp & Szuch
P.O. Box 1945
Morristown, NJ 07962

Counsel for Appellants

JOHN J. FARMER, JR., ESQUIRE
Attorney General of New Jersey
MARK L. FLEMING, ESQUIRE
Assistant Attorney General
DONNA KELLY, ESQUIRE (ARGUED)
Deputy Attorney General
PAMELA E. GELLERT, ESQUIRE
Deputy Attorney General
MARK TURNER HOLMES, ESQUIRE
Deputy Attorney General
Office of Attorney General of
 New Jersey
Department of Law & Public Safety
Division of Law
Richard J. Hughes Justice Complex
P.O. Box 112
Trenton, NJ 08625

Counsel for Appellees The Attorney
General of New Jersey and the
Secretary of State of New Jersey

                         2
       PAUL L. SMITH, ESQUIRE
        (ARGUED)
       Jenner & Block
       601 Thirteenth Street, NW
       Washington, DC 20005

       ROBERT LEVY, ESQUIRE
       Scarinci & Hollenbeck, LLC
       500 Plaza Drive
       P.O. Box 3189
       Secaucus, NJ 07096

       LEON SOKOL, ESQUIRE
       Sokol, Behot & Fiorenzo
       433 Hackensack Avenue
       Hackensack, NJ 07601

       Counsel for Appellees Richard Codey,
       Sonia DelGado, Thomas Giblin, Louis
       Greenwald, Bonnie Watson-Coleman,
       and New Jersey Apportionment
       Commission

       ROBERT L. CLIFFORD, ESQUIRE
       McElroy, Deutsch, & Mulvaney
       1300 Mount Kemble Avenue
       P.O. Box 2075
       Morristown, NJ 07962

       Counsel for Appellee Larry Bartels

OPINION OF THE COURT

BECKER, Chief Judge.

This appeal, considered on an extremely expedited basis,
arises out of a challenge to New Jersey's recently-adopted
state legislative reapportionment plan. On April 11, 2001,
the New Jersey Apportionment Commission, char ged under
the state constitution with the task of apportioning voters
among the legislative districts following each decennial
census, adopted a districting plan supported by the
Commission's five Democratic members as well as the
Commission's neutral "eleventh member." The adoption of

                                 3
this plan came just before the April 19, 2001filing deadline
for candidates for the upcoming state legislative election.
The primary election is (as of the time of this opinion)
scheduled to occur on June 5, 2001, with the general
election to follow in November.

On April 12, 2001, the day after the Apportionment
Commission's adoption of the districting plan, Plaintiffs
(Appellants in the current appeal) filed a complaint in the
District Court for the District of New Jersey, alleging that
the Commission's plan violated S 2 of the V oting Rights Act
of 1965 and the Fourteenth and Fifteenth Amendments to
the Constitution. We set forth the relevant text in the margin.1
Named in the complaint as Plaintiffs ar e: (1) several
African-American registered voters and r esidents of Essex
County; (2) several Hispanic registered voters and residents
of Essex or Hudson County; and (3) the Republican
members of the New Jersey Senate and General Assembly.
We have, and will hereinafter, r efer to these individuals
collectively as "Plaintiffs." Named as Defendants are: (1) the
Apportionment Commission; (2) the Commission's five
Democratic members; (3) the Commission's "eleventh
member," Professor Larry Bartels; (4) New Jersey's
Secretary of State; and (5) New Jersey's Attor ney General.
We will hereinafter refer to these parties collectively as
"Defendants."
_________________________________________________________________

1. Section 2 of the Voting Rights Act of 1965 provides in pertinent part:

       No voting qualification or prerequisite   to voting or standard,
       practice, or procedure shall be imposed   or applied by any State or
       political subdivision in a manner which   results in a denial or
       abridgement of the right of any citizen   of the United States to
vote
       on account of race or color. . . .

42 U.S.C. S 1973.

The Fourteenth Amendment provides that no state shall "deprive any
person of life, liberty, or property, without due process of law; nor deny
to any person within its jurisdiction equal pr otection of the laws." U.S.
Const. amend. XIV, S 1. The Fifteenth Amendment provides that "[t]he
right of citizens of the United States to vote shall not be denied or
abridged by the United States or by any State on account of race, color,
or previous condition of servitude." U.S. Const. amend. XV, S 1.

                               4
The gravamen of Plaintiffs' complaint is one of vote
dilution. More specifically, Plaintif fs contend that New
Jersey's new apportionment scheme deprives African-
American voters in Essex County of their ability to have the
representatives of their choice elected to the New Jersey
legislature. For support, Plaintiffs r ely primarily on the fact
that, under New Jersey's old apportionment plan, thr ee
districts located principally in Essex County had
populations that were majority African-American, while
under New Jersey's newly-adopted apportionment plan, the
African-American population in two of these districts drops
below fifty percent, and in the third, stands at 51.2% of the
total population. Plaintiffs contend that this elimination
and weakening of formerly majority-African-American state
legislative districts was a deliberate act on the part of
Defendants, intended to dilute (and having the ef fect of
diluting) the vote of the African-American population in the
Essex County region of New Jersey.

Upon filing this complaint, Plaintiffs sought and received
from the District Court a temporary restraining order
preventing Defendants from putting the new apportionment
plan into effect. Four days later, on April 16, 2001, the
District Court conducted a hearing concerning Plaintiffs'
application for further relief, in connection with which both
sides presented declarations from experts concerning, inter
alia, voting patterns in Essex County, New Jersey.
Plaintiffs' submissions, based upon analysis of recent
elections, and buttressed by a letter fr om Martin Luther
King III, head of the Southern Christian Leadership
Conference, maintained that the reapportionment plan
would reverse significant electoral and political gains that
African-American voters have secured and thr eatened to
frustrate future opportunities for the vigor ous participation
of African-American voices in the political marketplace.

Defendants countered that the newly-adopted
apportionment plan did not dilute African-American voting
strength, but rather enhanced it. Accor ding to Defendants,
because of the existence of significant racial cr oss-over
voting between African-Americans, whites, and Hispanics in
New Jersey generally and in Essex County specifically, an
African-American group need not constitute a numerical

                               5
majority in any single legislative district in or der to possess
the effective ability to elect preferr ed representatives. In a
submission similarly based upon analysis of r ecent election
trends, Defendants contended that the r etention of the
three majority-African-American districts advocated by
Plaintiffs actually impedes the ability of African-Americans
to elect the representatives of their choice, as it "packs"
unnecessarily large numbers of African-American voters in
the same legislative district, preventing them from exerting
electoral influence in other parts of the state.

After hearing these presentations, the District Court
issued a bench opinion denying Plaintiffs' application for
relief. Plaintiffs timely appealed fr om that denial, and we
agreed to hear that appeal on an extremely expedited basis.
This appeal largely concerns the events that transpired at
the April 16, 2001 hearing, and the precise nature of the
District Court's disposition of Plaintiffs' application for relief
on that date.

Crucial to our resolution of this appeal is the existence of
a special procedural mechanism for constitutional
challenges to statewide legislative apportionment schemes.
That mechanism, codified at 28 U.S.C. S 2284, requires
that a district court of three judges, rather than a single
judge, hear "action[s] . . . filed challenging the
constitutionality of . . . the apportionment of any statewide
legislative body." Although a single district judge has
certain limited powers, including the power to issue
temporary restraining orders, until the convening of a
three-judge court, a single judge does not have the power to
entertain applications for preliminary injunctive relief. See
28 U.S.C. S 2284(b)(3). In this case, the District Court did
not request the convening of a three-judge court, nor did it
determine whether such a request was necessary in light of
Plaintiffs' claims. Accordingly, we must decide whether the
District Court's disposition of Plaintiffs' r elief application,
given the requirements imposed by S 2284, was error.

We conclude that it was, and remand to the District
Court so that a three-judge court can be convened to hear
the Plaintiffs' Voting Rights Act and constitutional claims.
In addition, we decline to grant Plaintiffs' r equest that we
provide for interim relief pending action in the lower courts

                               6
because of our belief that under the present circumstances,
we should avoid undue disruption of New Jersey's
impending legislative elections. Moreover , as we explain
below, we have no jurisdiction to grant interim injunctive
relief in this case.

I.

A.

The New Jersey Legislature comprises a State Senate
consisting of 40 members and a General Assembly
consisting of 80 members. For the purpose of selecting
these representatives, New Jersey is divided into 40
legislative districts, with each district selecting one senator
and two assembly members. The New Jersey Constitution
provides that, following each federal decennial census, "the
Senate districts and Assembly districts shall be established,
and the senators and members of the General Assembly
shall be apportioned among them." N.J. Const. art. IV, S 3,
P 1. To discharge this task, the Constitution authorizes the
creation of an Apportionment Commission to consist
initially of "ten members, five to be appointed by the
chairman of the State committee of each of the two political
parties whose candidates for governor r eceive the largest
number of votes at the most recent guber natorial election."
Id. The Constitution further provides that the state
committee chairs are to make such appointments on or
before November 15 of the year in which the census is
taken, and that the Secretary of State is to certify those
appointments on or before December 1 of that same year.
See id.

Within one month of receipt by the Gover nor of New
Jersey of the official decennial census of the United States,
or on or before February 1 of the year following the year in
which the census was taken, whichever is later , the
Commission is required to certify to the Secretary of State
the apportionment of voters among the districts. See id.
Certification occurs by an affirmative vote of the "majority
of the whole number of [the Commission's] members." Id. If
the Commission fails to certify an apportionment on or

                               7
before the constitutionally-fixed deadline, or determines
prior to that date that it will be unable to do so, the
Constitution mandates that the Chief Justice of the
Supreme Court of New Jersey appoint "an eleventh member
of the Commission." Id. P 2. W ithin one month after the
appointment of this "eleventh member," the Commission,
again by a majority vote, is required to certify the
apportionment of the legislative districts to the Secretary of
State. See id.

B.

The most recent United States decennial census was
taken in the year 2000, and, pursuant to its constitutional
directive, New Jersey followed the legislative district
apportionment procedure delineated above. An
Apportionment Commission was appointed and certified in
November 2000, consisting of five members each fr om the
state Democratic and Republican parties (quite obviously,
these were "the two political parties whose candidates for
governor receive[d] the lar gest number of votes at the most
recent gubernatorial election." Id. P 1). This 10-member
Commission was unable to agree on a district
apportionment plan, necessitating the appointment of the
"eleventh member" by the Chief Justice of the Supreme
Court of New Jersey. On March 27, 2001, the Chief Justice
selected for that position Larry M. Bartels, a pr ofessor of
politics and public affairs at Princeton University, a
founding director of the Center for the Study of Democratic
Politics at the Woodrow Wilson School of Public and
International Affairs, a past pr esident of the Methods
Section of the American Political Science Association, and a
former chair of the Board of Overseers of the National
Election Studies. Professor Bartels has studied and written
extensively on electoral politics and statistical models.

Following preliminary discussions both with the
Commission's Republican and Democratic delegations to
review procedures and standar ds for the Commission's
apportionment work, the Commission set about the
apportionment task, convening the first meeting on April 2,
2001. During the period between April 2, 2001 and April
11, 2001, the Democratic and Republican contingents

                               8
submitted several proposed apportionment plans and
districting maps to Professor Bartels, which he and his staff
received and evaluated. According to Pr ofessor Bartels,
each proposed plan was evaluated against a number of
specified criteria, including: (1) minimizing population
deviations between the districts, in order to secure
compliance with the "one person, one vote" rule established
under the federal Constitution; (2) ensuring the fair
representation of minority voters, as r equired by the Voting
Rights Act and the federal Constitution; (3) keeping each of
the forty existing districts contiguous; (4) keeping each of
the existing districts reasonably compact; (5) respecting
municipal boundaries by not splitting towns smaller than
Newark and Jersey City among different districts; (6)
respecting voting-district boundaries; (7) avoiding any bias
in favor of one or the other political party; (8) ensuring that
some seats remained competitive; and (9) minimizing voter
disruption.

On April 11, 2001, the Commission adopted a modified
version of an apportionment plan, labeled "NJ2001," earlier
submitted by the Commission's Democratic membership.
The final vote was 6-1, with all Democratic members and
Professor Bartels, the "eleventh member ," voting in support
of the "NJ2001" plan, and with four of thefive Republican
members of the Commission abstaining. In adopting the
"NJ2001" Plan, the Commission rejected a competing plan,
labeled "GOP-H20," submitted by the Republican
contingent the previous day, April 10, 2001.

C.

The instant litigation commenced almost simultaneously
with the Commission's adoption of the "NJ2001" plan. On
April 12, 2001, the day following this adoption, Plaintiffs
filed a four-count verified complaint in the District Court.
The First and Second Counts alleged violations ofS 2 of the
Voting Rights Act, the Third Count claimed an infringement
of Plaintiffs' due process and equal pr otection rights under
the Fourteenth Amendment, and the Fourth Count asserted
a violation of the Fifteenth Amendment. That same day,
Plaintiffs requested and received fr om the District Court an
Order to Show Cause with Temporary Restraints. The Order

                               9
to Show Cause "immediately and temporarily r estrained
from employing, ratifying, or in any way putting into effect,
directly or indirectly, the apportionment map purportedly
approved by the New Jersey Apportionment Commission on
April 11, 2001," and further commanded the parties to
appear on April 16, 2001 for a hearing befor e the District
Court as to "why an Order should not be entered against
[the Defendants] restraining and enjoining the [D]efendants
. . . from employing, ratifying or in any way putting into
effect, directly or indirectly, the apportionment map,
purportedly approved by the New Jersey Apportionment
Commission on April 11, 2001."

On April 16, 2001, the District Court conducted the
hearing and, shortly after the hearing's conclusion, issued
an order denying Plaintiffs' application. The events that
transpired at this April 16th hearing, and the precise
nature of the District Court's disposition of Plaintiffs'
application are our central focus, as they go to the
significant and dispositive jurisdictional issue raised by this
appeal. Accordingly, we will reserve discussion of these
matters for Section II below.

Although the District Court denied Plaintiffs' application
for relief, it concurrently issued an oral temporary stay,
enjoining the printing of ballots for the upcoming election
until noon on April 17, 2001. Plaintiffs immediately filed an
emergency motion before us, requesting that we continue in
effect the District Court's stay of the ballot printing and
that we expand the stay to reimpose the general prohibition
against the implementation of the newly-adopted
reapportionment plan that the District Court had initially
granted in its April 12, 2001 Order to Show Cause with
Temporary Restraints. On April 17, 2001, Judge Leonard I.
Garth heard Plaintiffs' emergency motion and, sitting as a
single judge of the Court of Appeals pursuant to Federal
Rule of Appellate Procedure 27(c), or dered that the stay
entered by the District Court be continued until noon on
April 24, 2001.2 That same day, Plaintiffs noticed their
_________________________________________________________________

2. Judge Garth declined Plaintiffs' r equest to expand the stay to
reimpose the general restraints on implementation that were a part of
the District Court's original Order to Show Cause with Temporary
Restraints.

                               10
timely appeal to this Court. In light of New Jersey's
impending legislative elections--as noted above, the
deadline for candidates to file in the 2001 Senate and
Assembly races was set to expire on April 19, 2001, and the
primary election is (at the time of this opinion) set for June
5, 2001--we agreed to hear this appeal on an expedited
basis. We have jurisdiction over this appeal pursuant to 28
U.S.C. S 1292(a).

II.

The matter of the District Court's jurisdiction, given the
specialized procedural requirements imposed by 28 U.S.C.
S 2284 for challenges made to state apportionment plans,
forms the heart of the instant appeal. The central inquiry
before us can be stated as follows: Given the constraints
that S 2284 imposes on the actions of a single district judge
in proceedings in which a three-judge court is required, did
the District Court act outside of its authority when, in its
April 16, 2001 order, it denied Plaintif fs' application for an
order restraining the implementation of the newly-adopted
apportionment plan?3 We further note that our own
appellate jurisdiction over the merits of Plaintif fs' claims is
a function of the district court's jurisdiction. See Idlewild
Bon Voyage Liquor Corp. v. Epstein, 370 U.S. 713, 715-16
(1962) (per curiam) (explaining that a court of appeals may
not review the merits of a case that should originally have
been determined by a court of three judges, although it
may review the district judge's decision not to request such
a court).

In general, 28 U.S.C. S 2284 authorizes the convening of
_________________________________________________________________

3. We note here that all of the parties have had ample opportunity to
brief and argue this jurisdictional issue. Judge Garth first recognized
the
existence of a potential 28 U.S.C. S 2284 jurisdictional defect at the
time
he heard Plaintiffs' emergency motion for a continuance and expansion
of the District Court's stay. As a result, Judge Garth directed the
parties
to brief this jurisdictional issue as part of the instant appeal.
Moreover,
during the course of a case management confer ence held on April 19,
2001 pursuant to Federal Rule of Appellate Pr ocedure 33, we requested
that the parties file further supplemental letter briefing speaking in
part
to the S 2284 issue, and the parties complied.

                               11
a district court composed of three judges, specifies the
situations in which such a court is requir ed, and outlines
the procedure that such a court is to follow.4 The two
provisions most pertinent to this appeal ar e contained in
S 2284(a) and S 2284(b)(3). Section 2284(a) identifies those
situations in which the convening of a three-judge court is
compulsory:

        A district court of three judges shall be convened
       when . . . an action is filed challenging the
       constitutionality of . . . the apportionment of any
       statewide legislative body.

28 U.S.C. S 2284(a) (emphasis added). Section 2284(b)(3)
delineates the scope of a single district judge's authority to
act (and thus his or her jurisdiction) in pr oceedings that
require the establishment of a thr ee-judge district court:

        A single judge may conduct all proceedings except the
       trial, and enter all orders permitted by the rules of civil
       procedure except as provided in this subsection. He
       may grant a temporary restraining order on a specific
       finding, based on evidence submitted, that specified
       irreparable damage will result if the or der is not
       granted, which order, unless previously revoked by the
       district judge, shall remain in force only until the
       hearing and determination by the district court of three
       judges of an application for a preliminary injunction. A
       single judge shall not appoint a master, or order a
       reference, or hear and determine any application for a
       preliminary or permanent injunction or motion to vacate
       such an injunction, or enter judgment on the merits.
       Any action of a single judge may be reviewed by the full
       court at any time before final judgment.
_________________________________________________________________

4. We observe that there has been some doubt expressed as to whether
the three-judge court must always be convened for subjects within the
scope of S 2284(a), or whether such a court is necessary only when one
of the parties has requested it. See, e.g. , 17 Charles Alan Wright,
Arthur
R. Miller, & Edward H. Cooper,Federal Practice and ProcedureS 4235 (2d
ed. 1988). But see Armour v. Ohio, 925 F.2d 987 (6th Cir. 1991) (en
banc) (holding that three-judge courts ar e mandatory for cases
encompassed within S 2284(a)). We need not resolve the issue today, for
Plaintiffs did request at the April 16, 2001 hearing that such a court be
convened.

                               12
Id. S 2284(b)(3) (emphasis added). The provisions of
S 2284(a) and S 2284(b)(3) are necessarily interdependent:
The constraints imposed by S 2284(b)(3) on a single district
judge's authority to act are not trigger ed unless the action
is one that is required, under the ter ms of S 2284(a), to be
heard by a district court of three judges. Grants or denials
of injunctive relief by a three-judge court are directly
appealed to the United States Supreme Court. See 28
U.S.C. S 1253.

Our analysis of the District Court's actions on April 16,
2001 will thus proceed in two stages. First, we will
ascertain the exact nature of the District Court's denial of
Plaintiffs' application. If the District Court merely denied an
application for a temporary restraining or der, we would
clearly lack appellate jurisdiction over that denial.5 See,
e.g., Robinson v. Lehman, 771 F.2d 772, 782 (3d Cir. 1985)
("The denial of a temporary restraining or der is not
generally appealable unless its denial decides the merits of
the case or is equivalent to a dismissal of the claim."). If,
however, the District Court's decision constituted a denial
of a preliminary injunction, we would have to consider the
propriety of such action under S 2284(b)(3), which
proscribes a single district judge from"hear[ing] and
determin[ing] any application for a pr eliminary . . .
injunction" in matters in which the convening of a three-
judge district court is required. Should we find that the
District Court denied a preliminary injunction, it will then
be necessary to proceed to the second stage of our analysis,
i.e., whether Plaintiffs' suit repr esented "an action . . .
challenging the constitutionality of . . . the apportionment
of any statewide legislative body" within the meaning of
S 2284(a). We turn now to thefirst stage of our analysis.
_________________________________________________________________

5. As explained above, even in actions for which the convening of a
three-judge district court is requir ed under 28 U.S.C. S 2284, a single
district judge retains the authority to issue a temporary restraining
order
upon "a specific finding, based on evidence submitted, that specified
irreparable damage will result if the or der is not granted." 28 U.S.C.
S 2284(b)(3). This temporary order continues in effect "only until the
hearing and determination by the district court of three judges of an
application for a preliminary injunction." Id.

                               13
A.

At the outset, it should be noted that the District Court's
April 16, 2001 order and bench opinion accompanying that
order are less than pellucid as to the exact nature of the
Court's disposition. The text of the order itself merely
recites that "plaintiff 's [sic] application is denied," without
specifying whether this action is a denial of a temporary
restraining order, or of a pr eliminary injunction. There is
record evidence, specifically a portion of the April 16, 2001
hearing before the District Court, which suggests that
Plaintiffs' counsel understood that pr oceeding (at least at
its outset) to be one concerning the extension of a
temporary restraining order, rather than one related to
preliminary injunctive relief.6

Nonetheless, after reviewing the full text of the transcript,
we are convinced that the District Court's decision
constituted a denial of preliminary injunction relief. Most
significantly, the District Court, in issuing its bench
opinion, explicitly stated that "[t]his, of course, is an
application for [a] preliminary injunction," and proceeded to
summarize its analysis under each of the four well-known
prongs of the test for preliminary injunctive relief.
Accordingly, we are convinced that the District Court's April
16, 2001 order amounted to a denial of a pr eliminary
injunction. We now proceed to the second, and more
involved, stage of our jurisdictional analysis.

B.

As noted above, the bar imposed by 28 U.S.C.
S 2284(b)(3) on a single district judge's authority to hear
and determine a preliminary injunction application is
triggered only in proceedings in which the convening of a
three-judge district court is requir ed. Phrased in statutory
_________________________________________________________________

6. Plaintiffs' counsel characterized the r elief he was requesting from
the
District Court on April 16, 2001 in the following terms: "We believe that,
at a minimum, the restraints that you enter ed on the 12th [i.e., April
12th] should be continued to the maximum period permitted under the
restraints, to 20 days. . . . I believe you ar e required, your Honor, to
have
final relief here to convene a thr ee-judge panel to have a court to try
this
case within those 20 days . . . ."

                               14
terms, the jurisdictional issue at this second stage of our
analysis is whether the suit instituted by Plaintif fs in the
District of New Jersey constitutes "an action . ..
challenging the constitutionality of . . . the apportionment
of any statewide legislative body" within the meaning of
S 2284(a).

1.

Plaintiffs' verified complaint contests the New Jersey
Apportionment Commission's adopted redistricting plan on
both constitutional and statutory grounds. Counts One and
Two allege vote dilution on the part of Defendants in
violation of S 2 of the Voting Rights Act, while Counts Three
and Four present Fourteenth and Fifteenth Amendment
challenges to the apportionment plan. Moreover , in the
April 16, 2001 hearing, Plaintiffs' counsel pr esented both
the Voting Rights Act and the constitutional grounds for
restraining implementation of the apportionment plan to
the District Court. Had Plaintiffs' counsel only brought the
Fourteenth and Fifteenth Amendment claims befor e the
District Court, and had the Court denied the pr eliminary
injunction as to those claims, our jurisdictional answer
would be simple and straightforward: Plaintif fs' action was
clearly one challenging the constitutionality of New Jersey's
statewide apportionment scheme under S 2284(a), and thus
the District Court, acting as single district judge, was
explicitly proscribed from hearing (let alone denying) the
application for preliminary injunctive r elief under
S 2284(b)(3).

At the outset of its bench opinion on April 16, 2001, the
District Court recognized that Plaintif fs had presented both
statutory and constitutional challenges to the New Jersey
Apportionment Commission's redistricting plan, observing
that Plaintiffs' claims "arise under the Fourteenth and
Fifteenth Amendments of the United States Constitution
and the Voting Rights Act of 1965." In r endering its
decision, however, the District Court stated that the
"principal issue" before it was whether the apportionment
plan "violates Section 2 of the Voting Rights Act of 1965"
and then, taking up the first of the four well-established
factors for assessing the propriety of pr eliminary injunctive

                               15
relief, announced that "there is no likelihood that plaintiffs
will ultimately prevail on the merits." W e read the District
Court as confining its ruling only to the V oting Rights Act
claim, and remaining silent on the constitutional claims.

Thus, from a procedural perspective, we ar e faced with a
situation in which the District Court had befor e it both
Voting Rights Act and constitutional challenges to a
statewide apportionment scheme, and proceeded to the
merits of only the statutory claim. Insofar as Plaintiffs did
not waive their constitutional challenge during the District
Court proceedings,7 we must determine whether the
District Court had authority under 28 U.S.C. S 2284 to
render such a disposition. For the reasons set forth below,
we believe that the District Court acted outside of its
authority in entertaining the preliminary injunction
application, and thus its decision must be vacated.

Our starting point is the statutory language.8 A
straightforward reading of the pertinent language suggests
that the entire case, and not just the constitutional claims,
must be heard by a three-judge court. This is because the
language of S 2284 itself is broadly applicable to "actions"--
not narrowly to "claims"--challenging the constitutionality
of the apportionment of a statewide legislative body. Under
this view, because the "action" in this case includes a
challenge brought under S 2 of the V oting Rights Act, the
S 2 challenge, as well as the Fourteenth and Fifteenth
Amendment challenges, are subject to S 2284(a)'s
_________________________________________________________________

7. To be sure, the bulk of the discussion at the April 16, 2001 hearing
related to the Voting Rights Act claim and, as noted, the District Court
focused on that claim, but it is clear from the transcript and from the
briefs submitted to the District Court that Plaintif fs' counsel was
asserting the constitutional claims.

8. Our resort to the case law has not pr oved fruitful. We have been able
to locate only one case that squarely addr esses this precise issue: In
Armour v. Ohio, 925 F.2d 987 (6th Cir. 1991) (en banc), the Court of
Appeals for the Sixth Circuit held that a district judge, sitting alone,
had
no jurisdiction to rule on the merits of a S 2 Voting Rights Act challenge
to a reapportionment scheme brought in conjunction with constitutional
challenges. However, two members of the court wrote separately,
concluding that the district court (and hence the appellate court) did
have jurisdiction over the merits of the Voting Rights Act claim.

                               16
requirement that they be heard by a three-judge district
court.9

However, our analysis cannot be so simple, largely
because of the precedent that was generated under older
statutory versions of the three-judge court r equirements.
Prior to 1976, the Three-Judge Court Act mandated that a
three-judge court be convened to hear any action in which
plaintiffs sought to enjoin the enforcement of a state statute
on constitutional grounds. Because the scope of the Act
was potentially quite broad, with resulting disruptions and
inefficiencies in the administration of cases, the Supreme
Court determined that the Act should be construed to
require a three-judge court in as few situations as possible.
See, e.g., Swift & Co., Inc. v. Wickham, 382 U.S. 111, 128-
29 (1965); Phillips v. United States, 312 U.S. 246, 250-51
(1941). Consequently, decisions from both the Supreme
Court and the courts of appeals leaned towar d the view
that when a case was presented that included some issues
requiring the convening of a three-judge district court and
some issues that could be ruled upon by a single district
judge, there existed no jurisdictional bar to a single judge
disposing of the issues properly within his or her province.
See, e.g., Rosado v. Wyman, 397 U.S. 397, 403 (1970).
Further, some courts appeared to suggest that even where
a single district judge improperly consider ed issues that
should have been referred to a thr ee-judge court, the courts
of appeals would have jurisdiction to consider appeals
based solely on the aspects of the judge's ruling that could
have been legitimately decided by a single judge. See, e.g.,
Stone v. Philbrook, 528 F.2d 1084 (2d Cir. 1975).

These rules reached their zenith with the Supr eme
Court's decision in Hagans v. Lavine, 415 U.S. 528 (1974).
In that case, the plaintiffs challenged a state statute both
on the ground that it conflicted with federal law, and on
_________________________________________________________________

9. It is beyond dispute that a three-judge court, once convened, would
have jurisdiction over the Voting Rights Act claim. See, e.g., United
States
v. Georgia Pub. Serv. Comm'n, 371 U.S. 285, 287-88 (1963). Rather, the
question we face is whether the single judge, sitting alone, had
jurisdiction over this claim, given the constitutional claims that were
also present.

                               17
constitutional grounds. Under the old thr ee-judge court
requirements, the constitutional claims could only be heard
by a three-judge court, but there was no such requirement
for the statutory challenge. Thus, in the lower court
proceedings in Hagans, a single district judge, without
requesting a three-judge court, consider ed the statutory
issues alone and held in the plaintiffs' favor . Then, because
the case had been resolved on statutory gr ounds, the judge
determined that the convening of a thr ee-judge court to
entertain the constitutional challenge was not r equired.

The case made its way to the Supreme Court, which
upheld the district judge's choice to adjudicate the
statutory claims before determining whether the convening
of a three-judge court was necessary. The Court rested its
holding on several policy considerations, chiefly concerns
for judicial efficiency, and the fact that, had the three-judge
court been convened at the outset, the statutory issues
might still have been remanded for the single judge's
resolution. See id. at 544-45. Thus, a straightforward
application of Hagans might well lead us to conclude that
the District Court had authority to act upon (and thus that
we have appellate jurisdiction over the merits of) Plaintiffs'
Voting Rights Act claim. We believe, however, that Hagans
is not apposite to the precise situation befor e us.

In 1976, Congress amended the Three-Judge Court Act
in response to complaints that the system was
cumbersome, labyrinthine, and unnecessary. The new
statute, as described at the outset of this Section, only
requires a three-judge district court for certain
constitutionally-based apportionment challenges, and when
another Act of Congress specifically r equires one. See 28
U.S.C. S 2284(a). Thus, the 1976 amendments limited the
scope of the Three-Judge Court Act considerably, making it
questionable whether the policy considerations that drove
the original, narrow construction are still applicable today.
These revisions militate in favor of our br oader reading of
S 2284(a)'s scope.

One could respond to this analysis by ar guing that
Congress deliberately intended to exclude statutory-based
apportionment challenges brought under S 2 of the Voting
Rights Act from the three-judge court r equirement imposed

                                18
by 28 U.S.C. S 2284(a). In support of this ar gument, one
could point to 42 U.S.C. S 1973c, which necessitates the
convening of a three-judge court to hear claims brought
under the preclearance requirements of S 5 of the Voting
Rights Act. This might suggest that Congress made a
deliberate choice to require a thr ee-judge court for only
particular types of Voting Rights Act cases, exempting
claims brought under S 2. If such wer e the case, then there
would be no reason not simply to follow Hagans and allow
a single judge to resolve the statutory questions first.

However, although this argument is plausible, we believe
it must ultimately fail. We do not believe that Congress
made a deliberate choice to distinguish between
constitutional apportionment challenges and apportionment
challenges brought under S 2 of the V oting Rights Act. This
is because, when the three-judge court statutes were
revised in 1976 to require that this specialized tribunal
hear challenges to the "constitutionality of . . . the
apportionment of any statewide legislative body," S 2 of the
Voting Rights Act was not available to litigants seeking to
challenge apportionment. At that time, apportionment
challenges were generally constitutional in nature. See
Holder v. Hall, 512 U.S. 874, 893-94 n.1 (1994) (Thomas,
J., concurring in the judgment) (explaining the history of
apportionment and vote dilution claims). Section 2 of the
Voting Rights Act did not become widely used for
apportionment challenges until the 1982 amendments to
that provision, and the Supreme Court's subsequent
decision in Thornburg v. Gingles, 478 U.S. 30 (1986). In
fact, as late as 1980, the Supreme Court had not even
definitively determined whether S 2 of the Voting Rights Act
created a private right of action for voters. See City of
Mobile v. Bolden, 446 U.S. 55, 60 (1980). When Congress,
in 1976, revised 28 U.S.C. S 2284 to limit the three-judge
court requirement to those actions in which "the
constitutionality of . . . the apportionment of any statewide
legislative body" was challenged, the established statutory
basis for such apportionment challenges was S 5 of the
Voting Rights Act, see Allen v. State Bd. Of Elections, 393
U.S. 544, 569 (1969), whose own statutory pr ovisions
required the convening of a three-judge court, see 42
U.S.C. S 1973c.

                               19
Further, the legislative history of the 1976 revisions to 28
U.S.C. S 2284 clearly demonstrates that Congr ess was
concerned less with the source of the law on which an
apportionment challenge was based than on the unique
importance of apportionment cases generally. The Senate
Report, for example, consistently states that "three-judge
courts would be retained . . . in any case involving
congressional reapportionment or the r eapportionment of
any statewide legislative body," S. Rep. No. 94-204 (1976),
reprinted in 1976 U.S.C.C.A.N. 1988, 1988, and goes on to
explain that "[t]he bill preserves thr ee-judge courts for
cases involving . . . the reapportionment of a statewide
legislative body because it is the judgment of the committee
that these issues are of such importance that they ought to
be heard by a three-judge court," id. at 1996; see also
Allen, 393 U.S. at 582-83 n.1 (Harlan, J., concurring in
part and dissenting in part) (concluding that, unlike in
other cases involving the three-judge court r equirement, the
three-judge requirement of S 5 of the Voting Rights Act
should not be interpreted narrowly, because "generally a
plaintiff attacking a state statute [underS 5] could also
make at least a substantial constitutional claim").

Based upon this history, we conclude that because
statutory Voting Rights Act challenges to statewide
legislative apportionment are generally inextricably
intertwined with constitutional challenges to such
apportionment, those claims should be consider ed a single
"action" within the meaning of S 2284(a). Thus, when a
single district judge is presented with both types of claims,
he or she may not resolve the Voting Rights Act issues in
isolation while reserving the constitutional claims to a
three-judge district court; rather, the single district judge
should adhere to the limitations on his authority imposed
by S 2284(b)(3).

Finally, we note that practical and policy considerations
support our construction of S 2284. Questions regarding
the legitimacy of the state legislative apportionment (and
particularly its review by the federal courts) are highly
sensitive matters, and are regularly r ecognized as
appropriate for resolution by a thr ee-judge district court.
See, e.g., Chapman v. Meier, 420 U.S. 1, 14 (1975)

                               20
(referring to apportionment challenges as "r egular grist for
the three-judge court"). As the Supr eme Court has
explained, in such redistricting challenges, the potential for
federal disruption of a state's internal political structure is
great, counseling in favor of the establishment of a
specialized adjudicatory machinery: "Congr ess has
determined that three-judge courts ar e desirable in a
number of circumstances involving confr ontations between
state and federal power or in circumstances involving a
potential for substantial interference with government
administration." Allen, 393 U.S. at 563. Thus, challenges to
apportionment are the kinds of claims r equiring what has
been described as the "special and extraor dinary
procedure" represented by the convening of a three-judge
district court. Kennedy v. Mendoza-Martinez, 372 U.S. 144,
155 (1963).

More significantly, it is clear that questions regarding the
legitimacy of an apportionment scheme, whether under the
Constitution or under the Voting Rights Act of 1965, are
"intimately related," Armour v. Ohio, 925 F.2d 987, 988 (6th
Cir. 1991) (en banc), and are intensely fact-bound,
depending "entirely on the facts and cir cumstances of each
case." Voinovich v. Quilter, 507 U.S. 146, 155 (1993). These
observations inveigh against permitting a single district
judge to reach the merits only as to statutory Voting Rights
Act claims. Under a scheme in which a single district judge
can legitimately adjudicate the merits of a V oting Rights Act
challenge (while leaving resolution of the Fourteenth and
Fifteenth Amendment claims to a three-judge court), two
tribunals would be considering closely similar , albeit not
perfectly identical, challenges to the same state government
action. Not only does this cleavage seem unnecessarily
redundant, but it creates the danger that the single district
judge's conclusions with regard to the statutory claims--
particularly his or her factual findings--might well have the
effect of dictating the outcome of the constitutional claims,
thereby thwarting the expressed congr essional policy of
requiring a specialized three-judge court for the disposition
of such singularly important matters.10
_________________________________________________________________

10. We recognize that the Supr eme Court in Hagans was obviously not
concerned that a single district judge's factual conclusions in resolving

                               21
For these reasons, we conclude that when plaintiffs
mount challenges to statewide legislative apportionment
schemes on both Voting Rights Act and constitutional
grounds, both sets of claims must be hear d by a three-
judge district court. A single district judge may act on these
claims only to the extent permitted by the pr ocedure set
forth in S 2284(b)(3).

2.

Our analysis cannot end here, however, as we still must
consider the argument that the District Court effectively
complied with the procedure set forth inS 2284(b)(3) in its
April 16, 2001 disposition of Plaintiffs' pr eliminary
injunction request. More specifically, our holding leaves
open the possibility that a single district judge before whom
both Voting Rights Act and constitutional challenges to a
statewide apportionment scheme are raised could decline to
convene a three-judge court and could r each the merits of
the statutory claims if he or she were to conclude that the
plaintiffs' constitutional challenge was legally frivolous and
insubstantial. The authority for this proposition comes from
the Supreme Court's decision in Goosby v. Osser, 409 U.S.
512 (1973), in which the Court stated that the convening of
a three-judge district court is not requir ed when the
plaintiffs' "constitutional attack" on state government
action is "insubstantial." Id. at 518; see also Bailey v.
Patterson, 369 U.S. 31, 33 (1962) (per curiam) (concluding,
under the older version of the Three-Judge Court Act, that
a three-judge district court is requir ed "only when an
injunction is sought `upon the ground of the
unconstitutionality' " of a state gover nment act, and that
_________________________________________________________________

a statutory claim might dictate the decision of the three-judge court on
the constitutional claim; to the contrary, the Court recognized that the
three-judge court, in considering the constitutional claim, might well
prefer a single judge to make detailed factualfindings. See Hagans, 415
U.S. at 544. Nor was the Hagans Court concer ned with the relationship,
intimate or otherwise, between the statutory and constitutional claims.
However, as explained above, we believe that the 1976 revisions evince
Congress's particular sensitivity to apportionment challenges and lessen
the need for a narrow construction of thr ee-judge court requirements,
rendering Hagans inapplicable.

                               22
"[t]here is no such ground when the constitutional issue
presented is essentially fictitious"). Thus, deeming the
District Court's decision on April 16, 2001 to be in
compliance with the procedure set forth in 28 U.S.C.
S 2284(b) would require us to characterize the District
Court's decision in the following terms: W e would have to
conclude that, in its April 16, 2001 order and bench
opinion, the District Court found Plaintiffs' constitutional
claims to be frivolous, and then proceeded to consider the
merits of only their Voting Rights Act claim. We cannot
reach such a conclusion, for two reasons.

First, having read the transcript of the District Court's
proceedings on April 16, 2001, we believe that the Court
never reached the requisite conclusion as to Plaintiffs'
Fourteenth and Fifteenth Amendment claims. Quite clearly,
the Court never explicitly held that the claims wer e
frivolous or insubstantial. Moreover, to the extent that a
single district judge can reach an implicit conclusion that a
claim is frivolous, we do not believe that the District Court
reached such a conclusion in this case. Even were we to
interpret the Court's statement in its bench opinion that
"there is no likelihood that plaintif fs will ultimately prevail
on the merits" as a comment on the constitutional, as well
as the statutory, claims, it cannot properly be characterized
as a ruling that Plaintiffs' constitutional claims are
insubstantial, as it is well-established that a district court's
conclusion that a party will lose (or is likely to lose) on the
merits of a claim is not equivalent to a conclusion of
frivolousness for the purposes of establishing jurisdiction.
See Bell v. Hood, 327 U.S. 678, 682-83 (1946).

Second, we believe that Plaintiffs' Fourteenth and
Fifteenth Amendment challenges are not constitutionally
frivolous or insubstantial, as assessed under the standard
announced in such Supreme Court cases as Goosby and
Bailey. Goosby and Bailey set an extremely high bar for
frivolousness: To be deemed frivolous, a constitutional
claim must be "essentially fictitious,""wholly
insubstantial," and "legally speaking non-existent," Bailey,
369 U.S. at 33. The Goosby decision elaborated on this
rigorous standard:

                               23
       In the context of the effect of prior decisions upon the
       substantiality of constitutional claims, . . . claims are
       constitutionally insubstantial only if the prior decisions
       inescapably render the claims frivolous; pr evious
       decisions that merely render claims of doubtful or
       questionable merit do not render them insubstantial
       . . . . A claim is insubstantial only if its unsoundness
       so clearly results from the previous decisions of this
       court [i.e., the Supreme Court] as to for eclose the
       subject and leave no room for the infer ence that the
       questions sought to be raised can be the subject of
       controversy.

409 U.S. at 518 (internal citations and quotations omitted).
Plaintiffs' constitutional claims, on their face, cannot be
deemed constitutionally frivolous or insubstantial. 11 Indeed,
Defendants did not press this point at oral ar gument.

An apportionment scheme will be subject to strict
scrutiny under the Fourteenth Amendment's Equal
Protection Clause if race is the "pr edominant factor" in the
drawing of district lines. Bush v. Vera , 517 U.S. 952, 959
(1996) (plurality opinion); see also Shaw v. Reno, 509 U.S.
630, 649 (1993) (explaining that legislative districting
schemes can violate the Fourteenth Amendment's Equal
Protection Clause if they "cannot be understood as
anything other than an effort to separate voters . . . on the
basis of race"). Such a redistricting scheme may also violate
the Fifteenth Amendment, at least if done with the purpose
of depriving a racial minority group of the right to vote. See,
e.g., City of Mobile v. Bolden, 446 U.S. 55, 62-63 (1980)
(plurality opinion); Gomillion v. Lightfoot, 364 U.S. 339, 346
(1960) (holding that "when a legislature singles out a
_________________________________________________________________

11. An argument might be advanced that this Court ought not to be
making an insubstantiality determination, on the theory that only the
District Judge may rule upon this matter in thefirst instance, subject to
appellate review. See, e.g., Fort v. Daley, 431 F.2d 1128, 1131 (7th Cir.
1970). We disagree. Given the exigencies under which this type of
litigation is perforce conducted, and the extensive scope of the
submissions and arguments before us, it would seem fatuous for us not
to reach this issue, which is an essential ingr edient informing the
District Court's decision as to whether to r equest a three-judge court --
a decision which is itself subject to our plenary r eview.

                               24
readily isolated segment of a racial minority for special
discriminatory treatment," such as by r econfiguring city
boundaries so as to deprive African-American r esidents of
the right to vote in municipal elections, such action
"violates the Fifteenth Amendment.").12

Plaintiffs have alleged both Fourteenth and Fifteenth
Amendment violations in Counts Three and Four of the
verified complaint they filed before the District Court. The
legal theories and factual support underlying these
constitutional claims are not yet fully developed, but this is
understandable given the fact that Plaintiffs brought their
complaint only one day after the Apportionment
Commission adopted and certified the latest districting plan
for the state of New Jersey. As Goosby and Bailey teach,
our inquiry here is not whether Plaintif fs have a probability
(or even a possibility) of prevailing on their constitutional
arguments, but whether such claims are inherently
implausible on their face, e.g., because they ar e clearly
foreclosed by existing precedent. Examining Plaintiffs'
constitutional claims, underdeveloped as they may be, we
cannot say that they are legally implausible.

Throughout the admittedly brief period of this litigation,
Plaintiffs have pleaded in their papers and continue to
contend that Defendants acted with a discriminatory
purpose--particularly a discriminatory purpose tar geted at
African-American voters in Essex County--in that
Defendants sought to dilute the effective str ength of the
African-American vote in that region. Plaintif fs principally
_________________________________________________________________

12. We are aware that the Supr eme Court has not expressly concluded
that a claim of vote dilution is cognizable under the Fifteenth
Amendment, see, e.g., Reno v. Bossier Parish Sch. Bd., 528 U.S. 320,
334 n.3 (2000) ("[W]e have never held that vote dilution violates the
Fifteenth Amendment."), and has never explicitly found a legislative
redistricting plan to run afoul of the Fifteenth Amendment, see Voinovich
v. Quilter, 507 U.S. 146, 159 (1993) ("[W]e never have held any
legislative
apportionment inconsistent with the Fifteenth Amendment.").
Nonetheless, Bossier Parish and V oinovich do not alter our frivolousness
analysis in regard to Plaintiffs' Fifteenth Amendment claim. We simply
cannot conclude that the Court's silence and r eservation of these issues
clearly forecloses Plaintiffs' Fifteenth Amendment claim, so as to render
it frivolous or insubstantial under Goosby's strict standard.

                               25
allege that this discriminatory and dilutive intent is obvious
from the fact that, under the newly-adopted plan supported
by Defendants, the percentage of the African-American
population in two of the three existing majority-African-
American legislative districts in Essex County (Districts 27
and 29) would be reduced to below fifty per cent, while in
the third (District 28), the African-American majority would
be preserved by a mere 1.2%.

Plaintiffs amplify their argument by contending that
these three majority-African-American districts were
created as part of the post-1990-decennial-census
reapportionment with the goal of safeguar ding the strength
of the African-American vote in Essex County, and that, in
the intervening decade, no changes in conditions or
circumstances occurred that justify the elimination of such
districts. According to Plaintiffs, the inference that must
therefore be drawn is that Defendants purposefully sought
to reduce and dilute the strength of the African-American
vote in the Essex County region. Further , Plaintiffs assert
that, in at least one of these three districts (District 27), the
reduction in African-American population was done with
the deliberate intent of safeguarding the incumbent
senator's seat by transforming his constituency from a
majority-African-American to a majority-white one.

If Plaintiffs' claims are factually corr ect, then such
purposeful action on the part of Defendants may ar guably
amount to a violation of either the Fourteenth or Fifteenth
Amendments. As noted above, at this nascent stage of the
litigation, the evidence supporting Plaintif fs' contentions as
to the Defendants' motivation in favoring the newly-adopted
apportionment plan is scant at best. But Goosby 's
frivolousness standard is not a test of the sufficiency of
Plaintiffs' evidence; rather, it is an inquiry into whether, on
their face, Plaintiffs' constitutional claims are "essentially
fictitious," "wholly insubstantial," and"legally speaking
non-existent." We cannot say that they ar e.13
_________________________________________________________________

13. We emphasize, of course, that by r endering this opinion we intimate
no view as to whether Plaintiffs' claims should ultimately prevail.

                               26
3.

Thus, we conclude that the District Court committed
error by failing to follow the procedur e specified in 28
U.S.C. S 2284(b). When presented with an action involving
both statutory Voting Rights Act and constitutional
challenges to the apportionment of a statewide legislative
body, a single district judge cannot reach the merits of the
statutory claims unless he or she concludes that the
constitutional claims are legally frivolous and insubstantial.
The District Court made no such ruling in this case, and
our own review leads us to conclude that Plaintiffs'
Fourteenth and Fifteenth Amendment claims ar e not legally
frivolous. Accordingly, we will vacate the District Court's
April 16, 2001 order, with instructions to the District Court
to initiate the procedure for convening a three-judge court
to hear both the Voting Rights Act and the constitutional
challenges brought by the Plaintiffs.

III.

Having reached (and explained) our conclusion as to the
District Court's error, we are obliged to address one
additional matter, i.e., the issue of further interim relief. On
April 16, 2001, Plaintiffs requested and received orally from
the District Court a temporary stay enjoining Defendants
from printing ballots for the upcoming legislative elections.
This stay was set to expire at noon on the following day,
April 17, 2001. On April 17, 2001, Plaintiff r equested and
received from our Court (acting thr ough Judge Garth,
sitting as a single judge) an extension of the District Court's
stay; this extended stay is scheduled to expir e at noon on
April 24, 2001. Judge Garth declined Plaintif fs' request for
an expansion of the stay that would generally enjoin
Defendants from implementing the Apportionment
Commission's redistricting plan. On this appeal, Plaintiffs
ask that we grant them further and broader interim relief,
in order to prevent (in some fashion) the implementation of
the newly-adopted redistricting plan. W e decline to do so.

First, we are unsure as to the exact natur e and scope of
the relief that Plaintiffs request. In the conclusion of their
Brief to this Court, Plaintiffs ask us to"impose interim

                               27
injunctive relief against defendants to enjoin and restrain
implementation or reliance" on the newly-adopted
legislative redistricting plan. To the extent that Plaintiffs are
asking us to grant preliminary injunctive r elief, we are
powerless to oblige. It is beyond cavil that the thr ee-judge
district court, and not this Court, is the pr oper forum for
seeking such an interim injunction. Neither ar e we faced
with a request for an injunction pending appeal. With this
opinion and the accompanying judgment, the (pr esent)
appeal is over.14 Mor eover, given the nascent stage of these
proceedings, and the heavy factual development that will
likely need to occur prior to a final disposition of this
matter, it would not, at all events, seem appropriate either
to extend or expand the current stay, which Judge Garth
had entered with the understanding that it would be
temporary in nature. For all these reasons, we will simply
allow that stay to expire at its scheduled time, at noon on
April 24, 2001.

In reaching these conclusions, we also note our own keen
awareness of the significant disruption that action on our
part (or on the part of any federal court issuing interim
relief) will have on the upcoming New Jersey legislative
elections. The original deadline for filing a State Senate or
General Assembly candidacy, April 19, 2001, has alr eady
passed. We are also fast approaching the date of this
summer's upcoming legislative primary, scheduled (as of
the time of this opinion) to occur on June 5, 2001, in
conjunction with the gubernatorial primary and the
primaries for certain local races.15 Any interim injunctive or
_________________________________________________________________

14. Further, we are aware that the issuance of a "temporary stay" for an
indefinite period may well be the functional equivalent of a (forbidden)
preliminary injunction. See Stratton v. St. Louis Southwestern Ry. Co.,
282 U.S. 10, 17 (1930) (explaining that the exclusive powers of a three-
judge court are ones of "substance and not .. . form," and that "[i]t
matters not whether the injunction is called pr eliminary or
interlocutory,
or is styled a temporary restraining or der").

15. We have been informed by counsel that the New Jersey Legislature
is considering a bill, introduced on April 20, 2001, that would postpone
the date of the primary election by three weeks, to June 26, 2001, and
make an identically lengthy postponement to the candidacy filing
deadline, moving it to May 10, 2001. We ar e not aware of the current
status of this bill.

                               28
restraining action on our part, particularly action that
broadly proscribes the implementation of the redistricting
plan adopted by the Apportionment Commission, would
likely delay or suspend the legislative elections. Further, if
the legislative elections were delayed in this fashion, the
State of New Jersey, if it desired to also avoid postponing
the concurrent gubernatorial and local elections, would be
required to hold two separate primaries and general
elections for its state offices, at great expense to the
taxpayers. Defendants have forcefully spun out the
implications of such disruption in their briefs. 16 Federal
court intervention that would create such a disruption in
the state electoral process is not to be taken lightly. This
important equitable consideration, going to the heart of our
notions of federalism, was expressed quite cogently by the
Supreme Court in Reynolds v. Sims, 377 U.S. 533 (1964):

       [U]nder certain circumstances, such as where an
       impending election is imminent and a State's election
       machinery is already in progress, equitable
       considerations might justify a court in withholding the
       granting of immediately effective relief in a legislative
       apportionment case, even though the existing
       apportionment scheme was found invalid. In awar ding
       or withholding immediate relief, a court is entitled to
       and should consider the proximity of a forthcoming
       election and the mechanics and complexities of state
       election laws, and should act and rely upon general
       equitable principles.

Id. at 585 (emphasis added). This war ning in Sims on the
issue of relief was delivered after the Supreme Court found,
_________________________________________________________________

16. They stress the need for at least seven weeks between the filing
deadline and the election to allow for preparation of ballots, and
delivery
of absentee and military ballots overseas. They further argue that
delaying the primary election would, in turn, create other problems,
including truncating the general election campaign, depriving candidates
of sufficient time to gather support for their candidacies, and depriving
voters of time to develop informed choices. Finally, they stress that,
even
assuming final adjudication on the merits in Plaintiffs' favor, there
would
be further delays while New Jersey was given its fair opportunity to
correct apportionment errors befor e the imposition of a court-ordered
remedial plan.

                               29
on the merits, that a state legislative apportionment plan
violated the Constitution. If aggressive federal court
intervention is not necessarily appropriate following an
adjudication of unconstitutionality, then sur ely it cannot be
any more appropriate at this early stage of the proceedings.
See Chisom v. Roemer, 853 F.2d 1186, 1189 (5th Cir. 1988)
(vacating a district court's preliminary injunction of a state
election, on the rationale that "intervention by the federal
courts in state elections has always been a serious
business, not to be lightly engaged in" (inter nal quotations
and citations omitted)).

Moreover, in undertaking the equitable calculus
suggested by Sims, we certainly must account for the scant
factual record brought before the District Court and before
us. For instance, Plaintiffs' principal legal challenge to New
Jersey's apportionment plan thus far has been a vote
dilution claim brought under S 2 of the V oting Rights Act. It
is well-established that, to make out a claim that a
legislative districting scheme has diluted a minority group's
vote in contravention of S 2, a plaintif f must demonstrate,
as a threshold matter, the existence of three factors first
articulated in Thornburg v. Gingles , 478 U.S. 30 (1986): (1)
that the minority group "is sufficiently large and
geographically compact to constitute a majority in a single
member district"; (2) that the minority gr oup is "politically
cohesive," i.e., that it votes as a racial bloc; and (3) "that
the white majority votes sufficiently as a bloc to enable it
. . . to defeat the minority's preferred candidate." Id. at 50-
51; see also Jenkins v. Red Clay Consol. Sch. Dist., 4 F.3d
1103, 1115 (3d Cir. 1993). It is also clear that a plaintiff 's
showing of these three factors is necessarily fact-intensive,
requiring a careful and searching examination of the
specific circumstances of each case. See, e.g., Voinovich v.
Quilter, 507 U.S. 146, 154-55 (1993); Gr owe v. Emison, 507
U.S. 25, 41 (1993); Gingles, 478 U.S. at 46 ("[T]he [S2]
results test does not assume the existence of racial bloc
voting; plaintiffs must prove it.").

But it is not just Plaintiffs whose claims r equire factual
development. Thus far, Defendants have principally argued
that, although the newly-adopted apportionment scheme
may reduce the African-American percentage in previously

                               30
majority-minority districts to below fifty per cent, that
reduction does not dilute the African-American group's
voting power in violation of S 2 of the V oting Rights Act
because, at least in Essex County, there is significant
cross-over voting between white, African-American, and
Hispanic groups. We note here that the Supreme Court has
expressly reserved a final decision as to several of the
issues raised by Defendants' argument her e--i.e., (1)
whether an "influence district" in which a minority group
comprises less than half the population can nonetheless
comport with S 2 requirements, given the existence of cross-
over voting by the majority group, see, e.g., Voinovich, 507
U.S. at 154 (recognizing the possibility of influence districts
in which minority group members "could elect their
candidate of choice . . . if they are numer ous enough and
their candidate attracts sufficient cross-over votes from
white voters" but noting that "[w]e have not yet decided
whether influence-dilution claims such as appellees' are
viable under S2" and resolving not to "decide that question
today"); and (2) whether the presence of two minority
groups, e.g., African-Americans and Hispanics, can be
aggregated for purposes of determining voting strength and
effectiveness, if cross-over voting between the two groups
can be demonstrated, see, e.g., Growe, 507 U.S. at 41
(assuming, without deciding, "that it was per missible for
the District Court to combine distinct ethnic and language
minority groups for purposes of assessing compliance with
S 2").

Whichever way these issues are ultimately r esolved as a
legal matter, one thing is certain: Evidence establishing the
factual existence of such voting behavior will be absolutely
vital. See, e.g., id. ("[W]hen dilution of the power of . . . an
agglomerated [i.e., multi-minority group] political bloc is the
basis for an alleged violation, proof of minority political
cohesion is all the more essential."). Such proof in
apportionment challenges usually comes in the for m of
expert testimony and empirical evidence analyzing the
voting behavior of the majority and minority gr oups in the
region at issue. We do not have such a r ecord before us.
Both Plaintiffs and Defendants rely primarily on statements
made by witnesses in certifications whose accuracy and
credibility has not been tested through cr oss-examination.

                               31
Given the fact-sensitive nature of a challenge to a statewide
legislative apportionment scheme, we believe that the most
appropriate procedural course is a r emand to the District
Court for a convening of a three-judge court that will
oversee the factual development necessary for full and
appropriate resolution of Plaintif fs' challenges. Moreover,
given the paucity of the facts before us, we certainly believe
that any further intervention on our part, in the form of
interim relief, would be inappropriate at this juncture.

In denying interim relief, we certainly ar e not foreclosing
the Legislature by statute from postponing the time of the
primary in order to permit the thr ee-judge court to be
constituted and for it to consider an application by
Plaintiffs for a preliminary injunction after development of
an adequate record. In this regar d, we point out that if the
Legislature postpones the primary, an action which already
has been proposed, it might be possible to r econcile the
obviously desirable end of having the legal issues Plaintiffs
raise decided prior to the primary election with the
important consideration that the state election pr ocess not
be disrupted unduly. Of course, at least at this time, any
decision to postpone elections should be made in the
legislative rather than judicial arena.

And in stating that we are declining at this stage to issue
any further relief, we are not for eclosing (in fact, we could
not foreclose) the possibility of the parties seeking some
form of interim relief in the proceedings on remand below,
assuming, of course, that the procedures set forth in
S 2284(b) are followed. That is, Plaintif fs could, consistently
with S 2284(b)(3), seek another temporary r estraining order
from the District Court, and the District Court could grant
that temporary order upon "a specificfinding, based on
evidence submitted, that specified irreparable damages will
result if the order is not granted." 28 U.S.C. S 2284(b)(3).
Moreover, as noted above, once the thr ee-judge district
court is convened, Plaintiffs could apply to that court for
preliminary injunctive relief.

IV.

Given the potentially disruptive effects that our actions
could have on New Jersey's electoral process, it is

                               32
incumbent upon us to articulate our disposition of this
appeal with surgical accuracy. Our exact disposition is as
follows: We will vacate the District Court's April 16, 2001
order, and remand the case to the District Court, so that a
district court of three judges, as specified in 28 U.S.C.
S 2284, can be convened to hear both the V oting Rights Act
and the constitutional challenges brought by Plaintiffs.
With respect to interim relief, the temporary stay issued on
April 17, 2001 will expire at its scheduled time, April 24,
2001 at noon. We will grant no further interim relief in this
matter. We note, however, that neither the District Court,
acting as a single judge, nor the district court of three
judges that will be convened, is foreclosed fr om acting (and
issuing interim relief), provided that they comply with the
limitations on their authority imposed by 28 U.S.C.S 2284.

A True Copy:
Teste:

       Clerk of the United States Court of Appeals
       for the Third Circuit

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