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June 12, 1991


The opinion of the court was delivered by: Glasser, District Judge:



The facts leading up to this request are as follows: In 1989 the voters of the City of New York approved a new City Charter which provided for significant changes in the structure of the city government. Those changes included the abolition of the city's Board of Estimate and the expansion of both the size and the power of the City Council, which grew from 35 to 51 seats. The new Charter created a Districting Commission whose job it was to redraw the city council district lines to create 51 new districts. The combined requirements of local, state, and federal laws as they pertain to this task and to the election process have led to the dispute now before the court. First, the Charter provided that the next City Council election would be held in November 1991, rather than November 1993 when the normal 4-year election cycle would have required it. Second, because state law requires that the circulation of nominating petitions for the party primaries begin on June 17, 1991, a date changed by Chapter 90 of the Laws of 1991 from June 4, 1991,*fn1 the new City Charter required the drawing of the new districts to be completed by June 7, 1991. Third, the Districting Commission was required by the Charter to utilize the data collected in the 1990 national census, not due to be reported until April 1, 1991, in redrawing the district lines. Fourth, as will be set forth in more detail below, § 5 of the federal Voting Rights Act of 1965, 42 U.S.C. § 1973c, requires approval, or "preclearance," of the redistricting plan by either the Attorney General or by a three-judge court of the United States District Court for the District of Columbia. The Attorney General may consider a plan submitted to it for 60 days, and may before the end of that period request additional information and take an additional 60 days before announcing its objection to the plan. No plan within the scope of § 5 may be implemented prior to approval. It was thus apparent that the federal preclearance period would almost certainly overlap with initial stages of the 1991 election process, including, at the least, the candidate petitioning process prerequisite to the party primaries.

Both Chapter 90's scheduling changes and the new City Council districting map have been submitted to the Attorney General for preclearance, which, as of this date, has not been obtained. Although it is highly unlikely that preclearance of the new district lines will issue before June 17, the city has made clear its intention to go forward with the commencement of the petitioning process, nevertheless. Plaintiffs, relying on § 5 of the Voting Rights Act, seek to enjoin the city's commencement of that process by temporary restraining order until a three-judge court can be convened to hear their application for a preliminary injunction.


Preliminarily, the parties agree that the permanent injunction sought by plaintiffs pending preclearance may only be granted by a three-judge district court. 42 U.S.C. § 1973c ("Any action under this section shall be heard and determined by a court of three judges in accordance with the provisions of § 2284 of title 28 of the United States Code and any appeal shall lie to the Supreme Court."); Allen v. State Board of Elections, 393 U.S. 544, 560-63, 89 S.Ct. 817, 828-31, 22 L.Ed.2d 1 (1969) ("We conclude that in light of the extraordinary nature of the Act in general, and the unique approval requirements of § 5, Congress intended that disputes involving coverage of § 5 be determined by a district court of three judges."); 28 U.S.C. § 2284(b)(3). A temporary restraining order, however, may issue from a single district judge, as 28 U.S.C. § 2284 provides:

    (b) In any action required to be heard and
  determined by a district court of three judges under
  subsection (a) of this section, the composition and
  procedure of the court shall be as follows:
      (3) 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 harm
    will result if the order 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

The parties thus agree that this application is properly before this court.

Determination of the issue before me must of necessity be predicated on 42 U.S.C. § 1973c, more commonly known as § 5 of the Voting Rights Act of 1965. That statute in essence

  prohibits any state or political subdivision subject
  to § 5 of the Act from enforcing any change in voting
  qualifications, prerequisites, practices, procedures
  or standards with respect to voting unless it has
  either (1) obtained a declaratory judgment from the
  United States District Court for the District of
  Columbia that the change "does not have the purpose
  and will not have the effect of denying or abridging
  the right to vote on account of race[,] color, or
  [membership in a language minority]," or (2)
  submitted the proposed change to the Attorney General
  of the United States "and the Attorney General has
  not interposed an objection within sixty days after
  such submission, or upon good cause shown, to
  facilitate an expedited approval within sixty days
  after such submission, the Attorney General has not
  affirmatively indicated that such objection will not
  be made." 42 U.S.C. § 1973c.

Herron v. Koch, 523 F. Supp. 167, 169 (E.D.N.Y. 1981) (3-judge court). The "inquiry of a local district court in a § 5 action against a State or political subdivision is `limited to the determination whether "a [voting] requirement is covered by § 5 but has not been subjected to the required federal scrutiny."'" United States v. Board of Supervisors of Warren Co., Mississippi, 429 U.S. 642, 645-46, 97 S.Ct. 833, 834-35, 51 L.Ed.2d 106 (1977). If § 5 is applicable and has not been satisfied, it remains to decide the appropriate relief.

The parties do not dispute that by redrawing the district lines the city implicates § 5 of the Voting Rights Act. The Supreme Court has consistently held that "the Act be given `the broadest possible scope' to reach `any state enactment which altered the election law of a covered State in even a minor way.'" Perkins v. Matthews, 400 U.S. 379, 387, 91 S.Ct. 431, 436, 27 L.Ed.2d 476 (1971). The first question before this court, then, is whether petitioning for candidate qualification under an as yet unprecleared districting plan is "implementation" of a voting change within the meaning of § 5 of the Voting Rights Act. That question has been answered affirmatively in State of South Carolina v. United States, 585 F. Supp. 418 (D.D.C. 1984) (3-judge court). In that case, the South Carolina legislature approved a reapportionment plan, "Act 257," that established new districts for the election of state senators. During the pendency of the preclearance proceeding before a three-judge panel of the District Court for the District of Columbia,*fn2 the state began the candidate qualification process "requiring political parties holding primaries to accept candidacy notices for the state senate, the electoral districts in which the candidates will stand for election being defined by Act 257's redistricting plan." Id. at 420. The United States and defendant-intervenors NAACP sought an injunction barring South Carolina from "implementing" the new redistricting plan of Act 257 until the district court granted preclearance. They contended that South Carolina could not, absent preclearance, conduct any activities in preparation for the senate primaries without violating the Voting Rights Act. Id. at 421. South Carolina asserted that "mere ...

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