Before: Honorable Leonard I. Garth, United States Circuit Judge;
Honorable Dickinson R. Debevoise, United States District Judge;
Honorable Harold A. Ackerman, United States District Judge
(convened pursuant to 28 U.S.C. § 2284)
The opinion of the court was delivered by: Per Curiam
Plaintiffs filed a Complaint seeking injunctive relief to prevent defendants from implementing a plan for redistricting of New Jersey's Senate and General Assembly districts. The plaintiffs having failed to satisfy their burden of proof, we will deny the injunction sought by the plaintiffs and enter final judgment for the defendants.
Article 4, Section III, ¶ 1 of the New Jersey State Constitution provides that:
After the next and every subsequent decennial census of the United States, the Senate districts and Assembly districts shall be established, and the senators and members of the General Assembly shall be apportioned among them, by an Apportionment Commission consisting 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 receive the largest number of votes at the most recent gubernatorial election. . . . The Commission, by a majority of the whole number of its members, shall certify the establishment of Senate and Assembly districts and the apportionment of senators and members of the General Assembly to the Secretary of State within one month of the receipt by the Governor of the official decennial census of the United State for New Jersey, or on or before February 1 of the year following the year in which the census is taken, whichever date is later. N.J. Const. Art. 4, § 3, ¶ 1.
Pursuant to this mandate, an Apportionment Commission was appointed in November 2000, consisting of five Democrats and five Republicans. The Commission met several times in February and March 2001 but was unable to certify the establishment of Senate and Assembly districts. Accordingly, the Commission submitted a certification to this effect to the Chief Justice of the New Jersey Supreme Court pursuant to Article 4, Section III, ¶ 2 of the New Jersey State Constitution, which provides: If the Apportionment Commission fails so to certify such establishment and apportionment to the Secretary of State on or before the date fixed or if prior thereto it determines that it will be unable so to do, it shall so certify to the Chief Justice of the Supreme Court of New Jersey and he shall appoint an eleventh member of the Commission. The Commission so constituted, by a majority of the whole number of its members, shall, within one month after the appointment of such eleventh member, certify to the Secretary of State the establishment of Senate and Assembly districts and the apportionment of senators and members of the General Assembly. N.J. Const. Art. 4, § 3, ¶ 2.
On or about March 26, 2001, the Chief Justice appointed Professor Larry Bartels of Princeton University as the Commission's eleventh member. After reviewing plans and maps submitted by the Republicans and the Democrats, Professor Bartels endorsed a plan *fn1 that was similar to the plan submitted by the Democrats. This plan was certified by the Commission on April 11, 2001 by a vote of six to one. *fn2
Immediately after the Commission approved the redistricting plan, plaintiffs *fn3 filed a Verified Complaint on April 12. The Verified Complaint contained four counts against several defendants. *fn4 First, the complaint claimed that "Defendants' actions as alleged infringe plaintiffs' rights as protected by § 2 of the Voting Rights Act of 1965." The second count charged that "[t]he Bartels Plan, as adopted by a 6-1 vote of the Apportionment Commission, accordingly purposefully and intentionally violates § 2 of the Voting Rights Act of 1965." Third, the complaint alleged that "[r]atification and employment of the Bartels Plan, purported to be adopted by the Apportionment Commission on April 11, 2001, violates Plaintiffs' rights to Due Process and Equal Protection as guaranteed by the 14th Amendment of the United States Constitution." Finally, the fourth count claimed that "Defendants' actions as alleged violate Plaintiffs' rights under the 15th Amendment of the United States Constitution."
In connection with all four counts, the plaintiffs requested: a preliminary and permanent injunction, enjoining and restraining the defendants, their officers, agents, employees, servants, attorneys, and all those in action, concert or participation with them from a) 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; b) from printing, causing to be printed, distributing, disseminating or causing to be distributed or disseminated ballots or other means of effecting an election in connection with any primary election for New Jersey Legislative Districts. (Compl. at 24.)
Additionally, plaintiffs requested generally "such other and further relief as this Court may deem just and proper, including, enjoining and restraining defendants [from] the holding of any primary election for New Jersey Legislative Districts until further Order of this Court."
Also on April 12, plaintiffs submitted a proposed Order to Show Cause with Temporary Restraints to District Court Judge Dickinson R. Debevoise of the District of New Jersey. Judge Debevoise entered the order on April 12, 2001, which "immediately and temporarily restrained [defendants] 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." The Order stated that "the Defendants shall show cause. . .why an Order should not be entered against them restraining and enjoining the defendants, and each of them, 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." The parties were further ordered to appear before Judge Debevoise on April 16, 2001 for a hearing on the Order to Show Cause.
After hearing from the parties on April 16, Judge Debevoise issued an opinion from the bench, stating that "[i]n the present case the facts compel the conclusion that reducing the concentration of black Essex County voters in the three districts does not reduce the opportunities of black voters to participate in the political process." (Tr. 54.) Accordingly, the District Court concluded, inter alia, that "there is no likelihood that plaintiffs will ultimately prevail on the merits," and denied plaintiffs' application for a preliminary injunction. *fn5 (Tr. 57.) Judge Debevoise did, however, extend the temporary restraints he had previously entered until noon on April 17, so that plaintiffs would have time to file an emergency appeal.
Plaintiffs filed an emergency appeal on the following day, which was heard by Judge Leonard I. Garth of the Third Circuit Court of Appeals, sitting as a single judge of that court. At the argument, Judge Garth raised the issue of Judge Debevoise's jurisdiction to issue the April 16, 2001 preliminary injunction inasmuch as 28 U.S.C. § 2284 requires that "[a] district court of three judges shall be convened when otherwise required by Act of Congress, or when an action is filed challenging the constitutionality of the apportionment of congressional districts or the apportionment of any statewide legislative body." 28 U.S.C. § 2284(a). Accordingly, Judge Garth ordered briefing of the statutory court jurisdictional issue and extended the stay ordered by Judge Debevoise "until noon April 24, 2001, or until earlier and further action of a three-judge panel of the Court of Appeals." The Court of Appeals acted rapidly on this order and heard the plaintiffs' appeal on Monday, April 23. *fn6
At oral argument before the Third Circuit panel, the issue of the election schedule and the effect that any relief to plaintiffs would have on the timing of the election was discussed in detail. As originally legislated, the filing deadline for candidates was April 19, 2001, and the primary was to be held on June 5. The general election is scheduled to take place on November 6, 2001. The Attorney General explained that, during the interim period of approximately seven weeks between the filing deadline and the primary date, ballots had to be drawn and printed and the printed absentee and military ballots had to be mailed.
This schedule had already suffered delays at the time of the argument before the Third Circuit panel, in that the original filing deadline of April 19 had been extended indefinitely. Indeed, on the date that the jurisdictional argument was being heard by the Third Circuit, the New Jersey Legislature enacted legislation extending the filing date to May 10, 2001 and the primary date to June 26, 2001. That bill was signed into law by the acting Governor of New Jersey on April 23.
The Third Circuit panel which reviewed Judge Debevoise's April 16 order ruled from the bench on April 23 and issued a written opinion. After discussing the requirements of 28 U.S.C. § 2284 in detail and holding that § 2284 barred Judge Debevoise from ruling on the preliminary injunction application in the absence of a statutory three-judge panel, the opinion concluded as follows:
Given the potentially disruptive effects that our actions could have on New Jersey's electoral process, it is 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. § 2284, can be convened to hear both the Voting 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 from acting (and issuing interim relief), provided that they comply with the limitations on their authority imposed by 28 U.S.C. § 2284. Page v. Bartels, 2001 WL 417146, at 17 (3d Cir. April 23, 2001).
Directly after oral argument and the issuance of the order vacating the District Court's April 16 denial of a preliminary injunction, Chief Judge Becker informed the parties that Judge Debevoise had now requested the convening of a three-judge panel consistent with the Third Circuit's ruling. Chief Judge Becker then designated a statutory three-judge court pursuant to 28 U.S.C. § 2284(b)(1). The three-judge panel consisted of Judge Garth as the presiding judge, and District Court Judges Dickinson R. Debevoise and Harold A. Ackerman.
A pretrial conference was held on the following day, Tuesday, April 24. At the pretrial conference, the parties were informed that a two-day trial would be held on Monday, April 30 and Tuesday, May 1. The parties were instructed to submit exhibits to the Court by Thursday, April 26 and to conclude depositions by Sunday, April 29. An amicus brief was received from the NAACP Legal Defense & Educational Fund, Inc., et al., urging a full evidentiary trial of all claims and defenses. Such a full evidentiary trial was held on April 30 and May 1, 2001.
Plaintiffs called six witnesses: Walter L. Fields, who had consulted with the Republicans in their formation of a proposed apportionment plan; Donald Page, an African-American local politician in Essex County who is the first named plaintiff in the caption of this case; New Jersey State Senator Ronald Rice (D), *fn7 of District 28; Reverend Cordy T. Vivian, who has been involved in the civil rights movement since its inception in the 1960s; Professor James Loewen, the plaintiffs' expert witness; and New Jersey State Senator John O. Bennett (R), the New Jersey Senate majority leader and Senator for District 12. Defendants called eight witnesses: U.S. Congressman Robert Menendez (D); New Jersey Assemblywoman Nia Gill (D) of old District 27; Professor Larry Bartels; Professor Allan Lichtman, defendants' expert witness; New Jersey Senator Wayne Bryant (D) of District 5; New Jersey Assemblyman Joseph Charles (D) of District 31; New Jersey Assemblyman Wilfredo Caraballo (D) of District 28; and New Jersey Senator Richard Codey (D) of District 27.
In order to understand the positions taken by the plaintiffs and the defendants, we recount first those historical and statistical facts which neither party disputes. Initially, plaintiffs challenged four districts in the plan adopted by the 2001 Apportionment Commission (the "Bartels plan"), Districts 27, 28, 29, and 34. However, during the course of the trial, it became clear that Districts 28 and 29 were unassailable as they stood under the Bartels plan. *fn8 Therefore, our analysis and discussion will focus primarily on Districts 27 and 34.
Under the 1991 apportionment plan, there are a total of 20 African-American and Hispanic members of the New Jersey State Legislature: 4 of the 40 current members of the New Jersey Senate are African-American, and there are no Hispanic Senators; 11 of the 80 members of the General Assembly are African-American and 5 are Hispanic. (DX 40.)
As constituted under the 1991 Apportionment Plan the white, African-American, Hispanic and total minority voting age populations ("WVAP", "AAVAP", "HVAP" and "MVAP") were as follows:
District WVAP AAVAPHVAP MVAP
Under the Bartels plan the boundaries of these districts were changed and, particularly in District 27, the percentage of African-American voters declined dramatically. The new racial composition of the voter age population is:
District WVAP AAVAPHVAP MVAP
The composition of the four districts under the 1991 plan and the Bartels plan is as follows:
Dist. 1991 Plan Bartels Plan
27 City of Orange, East Orange, West Orange, part of Newark, and Montclair Caldwell, City of Orange, Essex Fells, Fairfield, Livingston, Maplewood, part of Newark, North Caldwell, Roseland, South Orange Village, West Caldwell, and West Orange
28 Irvington, Maplewood, part of Newark, and South Orange Village Belleville, Bloomfield, Irvington, and part of Newark
29 Hillside and part of Newark Hillside and part of Newark
34 Bloomfield, Clifton, Glen Ridge, Little Falls, Totowa, and Wayne East Orange, Glen Ridge, Montclair, Clifton, and West Paterson (DX 7.)
Neither party disputes the above facts and figures. Where the parties diverge is in the interpretation of the voting opportunities afforded to minorities under the Bartels plan.
It is the contention of the plaintiffs that the realignment of the districts under the Bartels plan and the reduction of the African-American voting age population in District 27 from 53% to 27% will reduce or eliminate the opportunity of African Americans in that district to elect legislators of their own race. The plaintiffs also contend that the new District 34, with a 35% African-American voting age population, does not afford sufficient opportunities for minorities to elect their preferred candidates. Plaintiffs assert that racial bloc voting is so prevalent in those areas that African Americans cannot count on cross-over votes from other racial groups to ensure victory of their candidates. Thus they will have less opportunity than other voters to participate in the political process and to elect representatives of their choice in violation of Section 2 of the Voting Rights Act. Plaintiffs also contend that the interests of Hispanic and African Americans are so different they cannot be considered members of the same voting bloc.
On the other hand, the defendants argue that the new districts are not racially polarized, that black representatives will not only be elected from the new districts, including new District 27, but that minority representation in the state legislature will be increased under the Bartels plan. In essence, the defendants seem to suggest that, although the "old" Districts 27, 28, and 29 have elected African-American representatives, some of these votes are being "wasted" under the 1991 plan, because those representatives would have been elected in any event with a much diminished minority population. Hence, if the "wasted" excess was diverted to the new districts (such as the new District 34), even more avenues for the election of minority representatives would be opened up.
A. Actions of Apportionment Commission
After being appointed as the eleventh member of the Apportionment Commission, Professor Bartels hired among his staff members Professor Ernest C. Reock, Jr., who was an expert in apportionment matters, and retired New Jersey Supreme Court Justice Robert L. Clifford to advise him on the Voting Rights Act and constitutional aspects of apportionment. Between April 2 and April 11, 2000, Professor Bartels met several times with the Republican and Democratic delegations to ...