Arizona Minority Coalition for Fair Redistricting v. Arizona Independent Redistricting Commission (366 F. Supp. 2d 887, 2005)

AMENDED ORDER

SILVER, District Judge.

This Amended Order corrects typographical errors in the Court’s previous Order entered on March 1, 2005. On May 26, 2004, the Court issued an Order ruling on various pending motions in this action and promising that a written opinion would follow. This is that opinion. Pending before the Court were Plaintiffs’ Request to Convene a Three-Judge Court, Application for Order to Show Cause, and Application for a Preliminary Injunction. Also pending was Defendant Arizona Independent Redistricting Commission’s Motion to Dismiss. Because this dispute centered around state constitutional issues and because Plaintiffs’ federal claims had no merit, the Court granted the Motion to Dismiss and denied the remaining Motions.

BACKGROUND

1. Redistrieting in Arizona

In November 2000, Arizona voters approved Proposition 106, an Arizona ballot measure that amended the Arizona Constitution to establish the Arizona Independent Redistrieting Commission (the “IRC” or the “Commission”). (First Am. Compl. ¶ 21 [Doc. # 15].) Proposition 106 required the IRC to reapportion Arizona’s legislative and congressional districts for the 2002 through 2010 elections according to specific redistrieting criteria. {Id. ¶ 22.)

The IRC held a series of public hearings in the summer of 2001 and in November 2001 adopted a legislative redistrieting plan for use in the 2002 legislative elections (the “2001 Legislative Plan”). {Id. ¶ 23.) The IRC submitted its new legislative plan to the Department of Justice (“DOJ”) for preclearance on January 24, 2002. {Id. ¶ 24.) A preclearance decision from the DOJ, however, was not immediately forthcoming. {See id.) Once the DOJ received the submission, it had 60 days in which to object to or preclear the plan. {Id.) (citing 28 C.F.R. § 51.9(a) & (b).)

On March 2, 2002, the Arizona Minority Coalition for Fair Redistrieting (the “Minority Coalition” or “Coalition”) and several individual plaintiffs filed a complaint in Arizona state court alleging that the 2001 Legislative Plan violated the Arizona Constitution. {Id. ¶24.) In particular, the Minority Coalition alleged that the IRC failed to comply with its duty to create and maintain “competitive” districts. See Navajo Nation v. Arizona Indep. Redistricting Comm’n, 230 F.Supp.2d 998, 1002 (D.Ariz.2002) (discussing Minority Coalition’s state court suit).

On May 1, 2002, because no time remained for a state court decision to affect the 2002 legislative elections and because the DOJ had not yet rendered its preclearance decision concerning the 2001 Legislative Plan, the IRC filed a complaint in this Court seeking to enjoin the use of preexisting 1994 legislative districts and to order the implementation of a redistrieting plan on an interim basis for the 2002 legislative elections. (First Am. Compl. ¶ 27.) After extensive hearings and testimony, this Court found that the 1994 districts were severely malapportioned, enjoined their use, and adopted an interim legislative plan for use in the 2002 elections. See Navajo Nation, 230 F.Supp.2d at 1007-1016.

During the summer of 2002, the IRC again met to revise the legislative districts for the 2004 through 2010 elections. {Id. ¶ 35.) The IRC finalized a new legislative plan on August 14, 2002 (the “2002 Legislative Plan” or “2002 Plan”) and submitted it to the DOJ for predearance. (Id.) The DOJ precleared the Plan on February 10, 2003. (Id.) The Minority Coalition, however, remained unsatisfied with the new districts. It amended its complaint in state court and alleged that the IRC again failed to create competitive districts. (Id. ¶ 36.)

The Arizona Superior Court set a trial date of July 8, 2003. (Id. ¶ 38.) On May 30, 2003, however, the Commission removed the case to this Court and the trial was postponed. (Id.) This Court remanded the case to state court on September 5, 2003 for lack of federal jurisdiction. See Arizona Minority Coalition v. Arizona Indep. Redistricting Comm’n, 284 F.Supp.2d 1240, 1249 (D.Ariz.2003). After remand, the Arizona Superior Court set trial for November 2003. (First Am. Compl. ¶ 40.)

The trial in state court began on November 12, 2003 and continued for six weeks. (Id. ¶ 41.) On January 16, 2004, the court issued a written ruling: (1) declaring that the IRC’s 2002 Legislative Plan violated the state constitution by failing to create competitive districts, (2) enjoining the use of the 2002 Legislative Plan for the 2004 legislative elections, (3) ordering the IRC to reconvene and establish lawful legislative districts within 45 days, and (4) ordering the IRC to appear on March 5, 2004 with a new legislative map. (Id.)

From February through April 2004, the IRC met to create a new legislative district plan that complied with the state court’s January 16, 2004 order. (Id. ¶ 43.) The Commission adopted many of the district configurations and Hispanic Voting Age percentage requests made by the Minority Coalition and retained a majority Native-American district. (Id. ¶ 45.) The IRC presented the new legislative plan to the Arizona Superior Court on March 5, 2004. (Id.) Both the Commission’s experts and the Plaintiffs approved of the plan. (Id.)

To comply with the Arizona Constitution, the Superior Court ordered that the March 2004 legislative redistricting plan be advertised for at least 30 days to allow the public to comment on the plan. (Id. ¶ 47) (citing ARIZ CONST., art IV, pt.2, § 1(16).) The Commission formally placed the plan on its website on March 8, 2004, along with a notice stating that the public had 30 days to comment. (Id.)

On April 2, 2004, the IRC amended the March 2004 legislative redistricting plan based on public comments received. (Id. ¶ 48.) The IRC finalized the plan on April 12, 2004 (the “April 12 Legislative Plan” or “April 12 Plan”). (Id.) On April 15, 2004, the Arizona Superior Court held a hearing in the state court action to take testimony from the IRC in support of the April 12 Plan and to hear objections from other parties. (Id. ¶ 49.) The court concluded that the Plan complied with the Arizona and federal constitutions and ordered the IRC to submit it to the DOJ for preclearance and to seek expedited review. (Id. ¶ 50.)

The IRC submitted the April 12 Legislative Plan to the DOJ for preclearance on April 20, 2004. (Id. ¶ 51.) Although the IRC requested expedited consideration, there was no guarantee that the DOJ would complete its review in time to meet critical election deadlines. The DOJ had 60 days to preclear or object to the April 12 Legislative Plan. See 28 C.F.R. §§ 59(a) & (b). If the submission was incomplete or if the DOJ required additional information, the 60-day clock would begin anew once the DOJ received the further information. Plaintiffs pointed out that if this were to occur, the preclearance deadline could extend beyond the August 5, 2004 early balloting date for the primary election. (First.Am.ComplV 72.)

II. This Litigation

On April 23, 2004, the Minority Coalition and several other Plaintiffs filed a Verified Complaint in this District seeking a preliminary and permanent injunction directing the IRC and the Arizona Secretary of State to conduct the 2004 legislative primary and general elections under the April 12 Legislative Plan or an alternative legislative redistricting plan that complies with the United States Constitution, the Voting Rights Act of 1965 (the “VRA”), and the Arizona Constitution on an emergency interim basis despite the lack of preclearance from the DOJ. (Verified Compl. at 13-14 [Doc. # 1].)

The Coalition alleged that without a legislative plan ordered by this court, the 2004 legislative primary and general elections would “at best be delayed and at worst cancelled.” (Id. ¶ 58.) Arizona law has technical procedures that had to be completed before the primary and general elections. To qualify for the primary election ballot, partisan legislative candidates had to file their nomination petitions no later than June 9, 2004. A.R.S. §§ 16-311, 16-314. The Arizona Secretary of State had to certify the names of all legislative candidates who have qualified for the ballot by June 10, 2004, including the number of the legislative districts for each candidate. (Verified Compl. ¶ 50.)

All matters pertaining to candidate qualification were required to be resolved before ballots could be printed. A.R.S. §§ 16-314, 16-351. Candidate qualification challenges had to be filed by June 23, 2004, and decided by the trial court by July 2, 2004. A.R.S. § 16-314, 16-351. Appeals from the trial court decisions in election contests had to be filed no later than July 7, 2004, with a decision from the Arizona Supreme Court to be rendered promptly. Id. Federal law required that overseas military personnel be sent a list of qualified candidates at least 60 days before the election, which in this case meant a deadline of July 9, 2004 for the 2004 primary election. (Verified Compl. ¶ 51.) Precinct boundaries had to be established in conformity with the legislative districts, A.R.S. § 16-411, and any change in those boundaries also had to be pre-cleared.

This case was originally assigned to the Hon. Mary H. Murguia. At a preliminary pretrial conference before Judge Murguia on Friday, April 30, 2004, the IRC indicated that it would be contesting federal jurisdiction. (See Tr. at 9 [Doc. # 18].) DOJ representatives, present at the hearing by telephone, declined to specify when they would finish their review of the April 12 Legislative Plan and also indicated by a letter they had faxed earlier in the day that the Court had no jurisdiction to grant the Plaintiffs’ requested relief. (Id. at 7-8.) In an attempt to gain a federal jurisdictional foothold, the Minority Coalition responded by filing a First Amended Complaint on Monday, May 3, 2004. [Doc. # 15.] This First Amended Complaint raised equal protection, Voting Rights Act (“VRA”), and Fifteenth Amendment claims against the already-enjoined 1994 legislative districts. (Id. ¶¶ 57-60.) It also claimed that the 2002 Plan — enjoined by the Arizona Superior Court in January as unconstitutional under state law — violated § 2 of the VRA. (Id. ¶¶ 61-65.)

On May 5, 2004, the Court granted the IRC’s Motion to Transfer this case from Judge Murguia to this Court. [Doc. # 16.] The IRC moved to dismiss on May 6, 2004. [Doc. # 32.] About the same time, the IRC filed a motion in Arizona Superior Court asking the court to stay its injunction against the IRC’s 2002 Legislative Plan in light of impending election deadlines, the IRC’s appeal of the Superior Court’s ruling, and the lack of any other enforceable plan. The IRC emphasized that the 2002 Legislative Plan had already been precleared by the DOJ. The trial court denied the motion — in part on the assumed availability of interim relief in this Court — and the IRC appealed that ruling to the Arizona Court of Appeals. (See Not. of Filing) [Docs.## 38 and 49.]

The Court of Appeals scheduled oral argument for May 27, 2004 on the IRC’s request for a stay. This Court found it imperative to issue its ruling before that date, and on May 26, 2004 issued a short Order announcing its decision to grant the IRC’s Motion to Dismiss and deny the Plaintiffs’ Request to Convene a Three-Judge Court, Application for Order to Show Cause, and Application for a Preliminary Injunction. On Friday, May 28, 2004, the Arizona Court of Appeals stayed the Superior Court’s injunction against the 2002 Legislative Plan and allowed the Plan’s configured districts to be used in the 2004 elections.

DISCUSSION

I. Overview

Although Plaintiffs made a few pale attempts to raise federal questions in their Complaint and First Amended Complaint, this action at its core concerned only state constitutional concerns. Plaintiffs waged a long battle in Arizona state court to declare the IRC’s 2002 Legislative Plan in violation of the state constitution. They succeeded in that battle, at least temporarily. The trial court found that the 2002 Plan failed to favor the creation of competitive districts and enjoined its use. The IRC then redrew its map and submitted it to the DOJ for preclearance as ordered.

But election deadlines were fast approaching, and the new map had to be precleared by the DOJ before it can be used. Concerned about the possibility that the DOJ might not render a preclearance decision in time, Plaintiffs rushed into federal court arguing emergency. Unless this Court ordered interim use of the new plan, Plaintiffs argued, Arizona would have no legally enforceable legislative map for the upcoming elections. At the same time, the IRC asked the trial court and then the Court of Appeals to stay the trial court’s injunction against the 2002 Legislative Plan. That Plan was precleared by the DOJ in February 2003 and no § 5 barriers precluded its use.

As time went on and as the parties focused the issues in their briefs, it became clear to the Court that the only “emergency” was whether Plaintiffs could implement a plan that reflected their interpretation of the state constitution before the Arizona Court of Appeals or Supreme Court had sufficient time to act on the IRC’s request for a stay. Arizona already had a federally precleared legislative plan (the 2002 Plan), and nothing barred its use except the Superior Court’s state constitutional ruling. That ruling was on appeal in the state courts, and the IRC had in the meantime moved to stay the injunction. Reluctant to enter the thicket of this state constitutional dispute, the Court decided— as it should—to leave the question of which legislative map to use to the state courts.

Even more central to the Court’s decision, however, was that this Court has no power to order the emergency interim use of the state court’s non-precleared April 12 Plan—even in the face of the potential delay of the legislative elections. To the contrary, United States Supreme Court precedent makes clear that federal courts are barred from intervening in state apportionment matters in the absence of a violation of federal law and are actually obligated to enjoin the use of non-pre-cleared plans in cases like this—i.e., where the federal court has not itself ordered the voting change. Plaintiffs raised no viable or cognizable federal claims here, and the delay of state legislative elections on state law grounds did not constitute grounds for this Court to circumvent the preclearance procedures established by § 5 of the VRA.

II. The Request to Convene a Three-Judge Court

Plaintiffs asked for an order convening a three-judge court pursuant to 28 U.S.C. § 2284. Title 28 § 2284 provides: “A district court of three judges shall be convened when otherwise required by an 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.” The first prerequisite has not been met; as for the second, Plaintiffs’ constitutional challenges are wholly insubstantial. See Simkins v. Gressette, 631 F.2d 287, 295 (4th Cir.1980) (noting that convening a three-judge court is not required to address insubstantial claims).

Plaintiffs argued that 42 U.S.C. § 1973c is an Act of Congress that requires the Court to convene a three-judge panel. First, as discussed more below, exclusive jurisdiction over actions brought under that statute lies in the United States District Court for the District of Columbia, and this Court has no authority to implement a non-precleared plan unless the plan was crafted by this Court in response to a federal violation. Second, § 1973 applies only in two instances: (1) where a plaintiff has brought an action to enjoin the use of an non-precleared voting change under § 5 of the Voting Rights Act, and (2) where a state redistricting body (in this case the IRC) brings an action for a declaratory judgment that a voting change complies with § 5. See 42 U.S.C. § 1973. The Minority Coalition did not seek to enjoin the April 12 Plan; rather, it sought to enforce it. Further, the IRC did not bring an action to preclear the Plan—it instead opted to submit the state court’s April 12 Plan to the DOJ for administrative preclearance. See 42 U.S.C. § 1973c.

Thus, the only question for the Court under § 2284 was whether the Plaintiffs raised a substantial constitutional challenge to the apportionment of the state’s legislative districts. As discussed below, they did not. Plaintiffs’ constitutional attack on the 1994 legislative districts failed for lack of an Article III case or controversy—this Court declared those districts unconstitutional long ago and neither the IRC nor the Secretary of State threatened to use them in the 2004 elections. Further, Plaintiffs’ asserted Fifteenth Amendment challenge to the 2002 Plan fails to state a cognizable claim—the Supreme Court has never held nor suggested that vote dilution violates the Fifteenth Amendment. Finally, Plaintiffs’ challenge the 2002 Plan under § 2 of the VRA is statutory, not constitutional, and does not require a three-judge court.

III. Legal Standards Governing the Motions Before the Court

A Rule 12(b)(6) motion to dismiss will be granted where the plaintiff fails to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). For the purposes of a Rule 12(b)(6) motion, “[rjeview is limited to the contents of the complaint,” Clegg v. Cult Awareness Network, 18 F.3d 752, 755 (9th Cir.1994). The Court, however, may take judicial notice of matters of public record outside the pleadings. MGIC Indem. Corp. v. Weisman, 803 F.2d 500, 504 (9th cir.1986). A complaint should not be dismissed “unless it appears beyond doubt that plaintiff can prove no set of facts in support of [her] claim which would entitle [her] to relief.” Buckey v. County of Los Angeles, 968 F.2d 791, 794 (9th Cir.1992) (quotation omitted). To the extent, however, that “matters outside the pleadings [and public record] are presented to and not excluded by the court, the motion shall be treated as one for summary judgment.” Fed.R.Civ.P. 12(b); Del Monte Dunes at Monterey, Ltd. v. Monterey, 920 F.2d 1496 (9th Cir.1990).

A motion to dismiss under Rule 12(b)(1) “addresses the court’s subject matter jurisdiction, derived from the case or controversy clause of Article III[.]” Biagro Western Sales, Inc. v. Helena Chem. Co., 160 F.Supp.2d 1136, 1141 (E.D.Cal.2001). Federal courts are courts of limited jurisdiction. Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994). It is assumed that a cause lies outside this jurisdiction, and the burden of establishing the contrary rests on the party asserting jurisdiction. Id. A motion to dismiss for “lack of subject matter jurisdiction may either attack the allegations of the complaint or may be made as a ‘speaking motion’ attacking the existence of subject matter jurisdiction in fact.” Thornhill Publ’n Co. v. General Tel. & Elecs. Corp., 594 F.2d 730, 733 (9th Cir.1979).

When a motion to dismiss attacks the allegations of the complaint as insufficient to confer subject matter jurisdiction, all allegations of material fact are taken as true and construed in the light most favorable to the nonmoving party. Federation of African Amer. Contractors v. City of Oakland, 96 F.3d 1204, 1207 (9th Cir.1996). When the motion is a factual attack on subject matter jurisdiction, a defendant may “rely on affidavits or any other evidence properly before the Court.” St. Clair v. City of Chico, 880 F.2d 199, 201 (9th Cir.1989). “It then becomes necessary for the party opposing the motion to present affidavits or any other evidence necessary to satisfy its burden of establishing that the court, in fact, possesses subject matter jurisdiction.” Id. No presumptive truthfulness attaches to the plaintiffs allegations, and the existence of disputed material facts will not preclude the trial court from evaluating for itself the existence of jurisdiction. Thornhill, 594 F.2d at 733.

Finally, to establish entitlement to a preliminary injunction, a plaintiff must prove either (1) a likelihood of success on the merits and the possibility of irreparable injury, or (2) that serious questions going to the merits were raised and the balance of hardships tips sharply in its favor. See Southwest Voter Registration Educ. Project v. Shelley, 344 F.3d 914, 917-918. These two formulations “represent two points on a sliding scale in which the required degree of irreparable harm increases as the probability of success decreases.” Hunt v. National Broad. Co., Inc., 872 F.2d 289, 293 (9th Cir.1989) (quotes and citation omitted); Raich v. Ashcroft, 352 F.3d 1222, 1227 (9th Cir.2003) (referring to two formulations as representing “a continuum of equitable discretion, whereby ‘the greater the relative hardship to the moving party, the less probability of success must be shown’ ”) (quoting National Ctr. for Immigrants Rights, Inc. v. INS, 743 F.2d 1365, 1369 (9th Cir.1984)).

IV. Preclearance and § 5 of the Voting Rights Act

Plaintiffs asked the Court to adopt the state court’s April 12 Plan on an emergency interim basis without preclearance. This the Court cannot do. Congress enacted the Voting Rights Act (the “VRA”) in 1965 “to rid the country of racial discrimination in voting.” South Carolina v. Katzenbach, 383 U.S. 301, 315, 86 S.Ct. 803, 15 L.Ed.2d 769 (1966). Faced with election practices in various states that effectively denied minorities the right to vote, Congress hoped through the VRA to end what it perceived as “an insidious and pervasive evil ... perpetuated in certain parts of the country through unremitting and ingenious defiance of the Constitution.” Id. Before the VRA, “Congress had enacted a series of statutes that aimed to eliminate, on a case-by-case basis, the problem of [voting discrimination].” United States v. State of Louisiana, 952 F.Supp. 1151, 1157 (W.D.La.1997) (citing Katzenbach, 383 U.S. at 313, 86 S.Ct. 803). These efforts largely failed. “Litigation was slow, favorable court decrees were circumvented with new practices that discriminated against racial minorities, and local officials outright defied court orders.” Id. (citing Katzenbach, 383 U.S. at 314, 86 S.Ct. 803).

“Congress’s frustrations with recalcitrant state and local officials found its most potent expression in § 5 of the VRA.” State of Louisiana, 952 F.Supp. at 1157. Section 5 of the Act was “a response to the common practice in some jurisdictions of staying one step ahead of the federal courts by passing new discriminatory voting laws as soon as the old ones had been struck down.” Beer v. United States, 425 U.S. 130, 140, 96 S.Ct. 1357, 47 L.Ed.2d 629 (1976). By “ ‘freezing election procedures in the covered areas unless the changes can be shown to be nondiscriminatory,’ ” Beer, 425 U.S. at 140, 96 S.Ct. 1357 (quoting H.R.Rep. No. 196, 94th Cong., 1st Sess. 58 (1975)), Congress intended to ensure that gains in minority political participation were not eroded through the new discriminatory procedures and techniques. See Beer, 425 U.S. at 140-41, 96 S.Ct. 1357; H.R.Rep. No. 196 at 57-58. Under § 5, a covered jurisdiction must prove that any change in voting practices or procedures does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color before it may implement that change. See 42 U.S.C. § 1973c; Katzenbach, 383 U.S. at 335, 86 S.Ct. 803.

The State of Arizona is a covered jurisdiction under the Voting Rights Act. 42 U.S.C. § 1973b(b). “A covered jurisdiction has two avenues available to seek the federal preclearance required under § 5.” Lopez v. Monterey County, 525 U.S. 266, 270, 119 S.Ct. 693, 142 L.Ed.2d 728 (1999) (“Lopez II ”). “The jurisdiction may submit the proposed voting change to the Attorney General.” Id. “If the Attorney General affirmatively approves the change or fails to object to it within 60 days, the change is deemed precleared and the jurisdiction may put it into effect.” Id. Otherwise, “either in the first instance or following an objection from the Attorney General, a covered jurisdiction may seek preclearance for a voting change by filing a declaratory judgment action in the United States District Court for the District of Columbia.” Id. The change is pre-cleared “if the court declares that the proposed ‘qualification, prerequisite, standard, practice, or procedure does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color, or in contravention of the guarantees set forth in section 1973b(f)(2) [proscribing voting restrictions based on membership in a language minority group].’ ” Id. at 270-71, 119 S.Ct. 693 (quoting 42 U.S.C. § 1973c). If a voting change subject to § 5 has not been precleared, § 5 plaintiffs are entitled to an injunction prohibiting implementation of the change. Clark v. Roemer, 600 U.S. 646, 652-53, 111 S.Ct. 2096, 114 L.Ed.2d 691 (1991) (citing Allen v. State Bd. of Elections, 393 U.S. 544, 572, 89 S.Ct. 817, 22 L.Ed.2d 1 (1969)).

Fearful that the state court’s April 12 Plan might not be precleared by the DOJ in time to meet critical election deadlines, Plaintiffs asked this Court to take immediate action and order that Plan into effect on an interim basis without preclearance. They argued that the 2004 legislative elections would be delayed and possibly can-celled unless this Court acted. The potential delay of a state legislative election is a serious issue, but “do[es] not ... change the basic nature of the § 5 preelearance process.” Lopez v. Monterey County, 519 U.S. 9, 23, 117 S.Ct. 340, 136 L.Ed.2d 273 (1996) (“Lopez I”). “Congress designed the preclearance procedure ‘to forestall the danger that local decisions to modify voting practices will impair minority access to the electoral process’ ” Id. (quoting McDaniel v. Sanchez, 452 U.S. 130, 149, 101 S.Ct. 2224, 68 L.Ed.2d 724 (1981)). It “chose to accomplish this purpose by giving exclusive authority to pass on the discriminatory effect of purpose of an election change to the Attorney General and to the District Court for the District of Columbia.” Id. “Because a large number of voting changes must necessarily undergo the preclearance process, centralized review enhances the likelihood that recurring problems will be resolved in a consistent and expeditious way.” McDaniel, 452 U.S. at 151, 101 S.Ct. 2224.

The Supreme Court has on two occasions reversed lower federal courts for doing exactly what Plaintiffs urged this Court to do — allow elections to proceed under non-precleared state-crafted plans. In Clark v. Roemer, 500 U.S. at 652-53, 111 S.Ct. 2096, Louisiana failed to submit for preclearance a number of statutory and constitutional voting changes concerning the election of state judges, many of which were adopted in the late 1960s and 1970s. The appellants sought to enjoin Louisiana’s 1990 judicial elections because of the lack of preclearance for those changes. The district court nonetheless permitted the elections to go forward in the absence of preclearance, citing the short time between election day and the latest request for an injunction, the fact that qualifying and absentee voting had begun, and the time and expense of the candidates. On appeal, the Supreme Court reversed, holding that the court erred by not enjoining the elections. “A [state-crafted] voting change in a covered jurisdiction,” the Court warned, “‘will not be effective as law until and unless cleared.’ ” Clark, 500 U.S. at 652, 111 S.Ct. 2096 (quoting Connor v. Waller, 421 U.S. 656, 656, 95 S.Ct. 2003, 44 L.Ed.2d 486 (1975)).

The Court reaffirmed this principle five years later in Lopez I, 519 U.S. at 20-25, 117 S.Ct. 340. The facts of that ease are relatively complicated and for our purposes here do not warrant a lengthy explanation. The short version is that the ap-pellee Monterey County had enacted a series of ordinances between 1972 and 1983 consolidating its judicial districts into a single countywide municipal court. Like the State of Louisiana in Clark, it failed to submit those changes for preclearance to either the Attorney General or the District Court for the District of Columbia. After years of legal wrangling and faced with the prospect of having no judicial elections, a three-judge panel in the District Court for the Northern District of California eventually approved the use of the County’s consolidation plan and ordered at-large countywide elections. The Supreme Court, comparing the case to Clark, held that it was “error for the [district court to order elections under that system before it had been precleared by either the Attorney General or the United States District Court for the District of Columbia.” Lopez I, 519 U.S. at 24, 117 S.Ct. 340.

If this Court were to order the interim use of the state court’s legislative plan pending preclearance, it would commit exactly the same error committed by the district courts in Clark and Lopez I. The “congressional choice in favor of specialized review” in the Department of Justice and District Court for the District of Columbia “necessarily constrains the role of the ... district court.” Id. “What is foreclosed to such district court is what Congress expressly reserved for consideration by the District Court for the District of Columbia or the Attorney General — the determination whether a covered change does or does not have the purpose or effect ‘of denying or abridging the right to vote on account of race or color.’ ” Perkins v. Matthews, 400 U.S. 379, 385, 91 S.Ct. 431, 27 L.Ed.2d 476 (1971) (quoting 42 U.S.C. § 1973). When confronted with a non-precleared state-crafted plan, “[t]he ... district court may determine only whether § 5 covers a contested change, whether § 5’s approval requirements were satisfied, and if the requirements were not satisfied, what temporary remedy, if any, is appropriate.” Lopez I, 519 U.S. at 24, 117 S.Ct. 340. Once a jurisdiction has submitted its plan to either the DOJ or the District of Columbia, “ § 5 provides no further remedy.” Id.

Plaintiffs allude to an emergency exception to § 5’s preclearance requirement. This exception — to the extent one may even call it that — finds its genesis in the Supreme Court’s decision in Clark. In Clark, the Court left open the question of whether a district court may ever deny a § 5 plaintiffs motion for an injunction and allow a covered jurisdiction to conduct an election under a non-precleared state-crafted plan. The Court suggested that “[a]n extreme circumstance might be present if a seat’s unprecleared status is not drawn to the attention of the [covered jurisdiction] until the eve of the election and there are equitable principles that justify allowing the election to proceed.” Clark, 500 U.S. at 654-55, 111 S.Ct. 2096. The Court found no such exigent circumstances in Clark, even though qualifying and absentee voting had begun under the non-precleared plan. Id. And it found no emergency in Lopez I, though the County and appellants “seem[ed] unable to fashion an election plan” and “enjoining the elections would leave the County without a judicial election system.” Lopez I, 519 U.S. at 22, 117 S.Ct. 340. The situation here was much less dire — the IRC submitted the state court’s plan to the DOJ on April 20 and while some election deadlines were approaching, the election was months away. The fact that the legislative election could have been delayed if the DOJ did not expedite does not in light of the facts of Clark and Lopez justify an end-run around the preclearance requirement.

Perhaps recognizing that their efforts to persuade this Court to implement the state court’s April 12 Plan without preclearance were unlikely to succeed, Plaintiffs urged a possible alternative in their preliminary injunction papers. They argued that the Court should draw and implement a new legislative map in the event it found that it could not approve the use of the April 12 Plan. Undoubtedly animating Plaintiffs’ proposal was the fact that the Supreme Court has carved an exception to preclearance in certain cases involving federally court-ordered voting changes. “As a general rule, voting changes crafted wholly by a federal district court in the first instance do not require preclearance.” Lopez II, 525 U.S. at 285-87, 119 S.Ct. at 704-05 (citing Connor v. Johnson, 402 U.S. 690, 691, 91 S.Ct. 1760, 29 L.Ed.2d 268 (1971)). This principle stems from separation-of-powers concerns. Id. at 705. As Justice Black observed in Connor, “Under our constitutional system it would be strange indeed to construe § 5 to require that actions of a federal court be stayed and reviewed by the Attorney General or the United States District Court for the District of Columbia.” Connor, 402 U.S. at 695, 91 S.Ct. 1760.

But Connor’s preclearance exception has its limits. Federal courts have the power to redistrict only in the face of threatened violations of federal law. See Voinovich v. Quilter, 507 U.S. 146, 156, 113 S.Ct. 1149, 122 L.Ed.2d 500 (1993) (“Federal courts are barred from intervening in state apportionment matters in the absence of a violation of federal law ....”). It is against this backdrop that Connor carved out its preclearance exception. See McDaniel v. Sanchez, 452 U.S. 130, 131, 101 S.Ct. 2224, 68 L.Ed.2d 724 (1981) (“[The] preclearance requirement does not apply to plans prepared and adopted by a federal court to remedy a constitutional violation.”). As explained in Sections V-VII below, Plaintiffs have not alleged any substantial federal claims; rather, they attempt to convert Connor’s limited pre-clearance exception into a broad-ranging emergency power. Plaintiffs cite no authority, however, for the proposition that federal law creates a right to have local elections conducted on the timetables prescribed by state law. The fact that Plaintiffs may suffer harm within the meaning of Fed.R.Civ.P. 65 does not by itself confer federal jurisdiction. Cf. Skelly Oil v. Phillips Petroleum Co., 339 U.S. 667, 671, 70 S.Ct. 876, 94 L.Ed. 1194 (1950) (Declaratory Judgement Act creates federal remedy but is not itself a basis for federal jurisdiction).

The only case cited by Plaintiffs that merits separate comment is Smith v. Clark, 189 F.Supp.2d 503 (S.D.Miss.2002). After the 2000 census, Mississippi lost a seat in the United States House of Representatives. Id. at 505. The Mississippi Legislature attempted to reapportion the state’s congressional districts, but was unsuccessful. Id. In October 2001, a group of voters filed an action in state court seeking an injunction directing the adoption and implementation of a redistricting plan. Id. One month later, another group filed an action in federal court seeking the same relief. Id. They alleged that the previous districts were unenforceable and that any state-crafted plan could not be enforced until it had been precleared. Id. The district court found it necessary to devise and implement its own plan to ensure that Mississippi had an enforceable redistricting plan in place before the elections. But Clark, unlike this case, involved a valid constitutional challenge to malap-portioned districts. It also involved a congressional election. Article I, § 4 of the U.S. Constitution allows states to regulate the manner of choosing Senators and Representatives, but subjects the states to federal oversight. The Clark plaintiffs thus presented a stronger case for federal court intervention than the Plaintiffs do here.

Even if Plaintiffs’ emergency argument had some merit, that argument was weakened and later eviscerated by the fact that the Defendants moved the Arizona Court of Appeals to stay the trial court’s injunction against the 2002 Plan. The 2002 Plan had already been precleared by the DOJ. The Superior Court enjoined it on state constitutional grounds in January 2004, but the Defendants appealed the decision and later moved to stay the injunction. The Arizona Court of Appeals determined that the public interest in having a timely election outweighed the state constitutional concerns identified by Plaintiffs and granted stay relief on Friday, May 28, 2004. Even if this Court had decided that it had the power to adopt the Superior Court’s April 12 Plan or to craft its own interim plan, deferral to the state court proceedings would have been warranted. Redistricting is “primarily the duty and responsibility of the State through its legislature or other body, rather than a federal court.” Chapman v. Meier, 420 U.S. 1, 27, 95 S.Ct. 751, 42 L.Ed.2d 766 (1975). “Absent evidence that these state branches will fail timely to perform that duty, a federal court must neither affirmatively obstruct state reapportionment nor permit federal litigation to be used to impede it.” Growe v. Emison, 507 U.S. 25, 34, 113 S.Ct. 1075, 122 L.Ed.2d 388 (1993).

Federal courts have long been reluctant to intrude on state domestic policy. See, e.g., Pennsylvania v. Williams, 294 U.S. 176, 185, 55 S.Ct. 380, 79 L.Ed. 841 (1935) (“It is in the public interest that federal courts of equity should exercise their discretionary power with proper regard for the rightful independence of state governments in carrying out their domestic policy.”). This litigation— stripped of Plaintiffs’ obfuscation and deflection of the issues — centered entirely around state constitutional concerns. Although Plaintiffs alleged emergency, the only true crisis was whether they could implement a legislative redistricting plan that reflected their interpretation of state constitution before the Arizona Court of Appeals could act on the Defendants’ request for a stay. This Court is not de facto state appellate body—and even if it concluded that it had jurisdiction to act— principles of federalism and comity would have counseled restraint.

V. The Challenges to the 1994 Legislative Districts

At the status hearing before Judge Murguia on Friday, April 30, 2004, the IRC made no secret of the fact that it would be contesting federal jurisdiction. Ostensibly in hopes of finding a basis for federal jurisdiction before the IRC moved to dismiss, Plaintiffs amended their Verified Complaint over the weekend and raised a host of new federal claims. The first group of new claims involved Fourteenth Amendment, Voting Rights Act, and Fifteenth Amendment challenges to Arizona’s 1994 legislative districts. Those challenges fail as a basis for federal jurisdiction because this Court declared those districts unconstitutional over two years ago and no Article III case or controversy exists with respect to their use.

The 2000 decennial census indicated that Arizona’s population had increased by 64%—up from 3,665,226 in 1990 to 5,130,-632 in 2000; it also showed substantial population shifts within the preexisting 1994 legislative districts. Navajo Nation, 230 F.Supp.2d at 1002. The Equal Protection Clause of the Fourteenth Amendment requires states to apportion their legislative districts on an roughly equal population basis. Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964). Thus, when the State of Arizona failed to redistrict in time for the 2002 legislative elections, the plaintiffs and intervenors in Navajo Nation filed suit in federal court seeking an injunction prohibiting the use of the ’94 districts on Fourteenth Amendment grounds. This Court declared those districts unconstitutional in an order dated May 28, 2002 and enjoined the Secretary of State from using them in the 2002 elections.

Article III of the U.S. Constitution places substantial limits on federal jurisdiction. The doctrines of standing and ripeness—derived from Article III—“ensure that an adequate factual and legal context will sharpen and cabin judicial-decision making” and “safeguard democracy by constraining the authority of an unelected judiciary to pass judgment on the acts of legislatures.” Thomas v. Anchorage Equal Rights Comm’n., 220 F.3d 1134, 1143 (9th Cir.2000) (O’Scannlain, J., concurring). “Whether the question is viewed as one of standing or ripeness, the Constitution mandates that prior to our exercise of jurisdiction there exist a constitutional case or controversy, that the issues presented are definite and concrete, not hypothetical or abstract.” Id. at 1139 (quotation omitted). “In assuring that this jurisdictional prerequisite is satisfied, we consider whether the plaintiffs face 'a realistic danger of sustaining a direct injury’ ” or “whether the alleged injury is too ‘imaginary’ or ‘speculative’ to support jurisdiction.” Id. (quoting Babbitt v. United Farm Workers Nat’l Union, 442 U.S. 289, 298, 99 S.Ct. 2301, 60 L.Ed.2d 895 (1979)).

Any claims concerning the 1994 legislative districts were too imaginary and speculative to support jurisdiction. Plaintiffs faced no actual or imminent threat of injury with respect to those districts. Neither the IRC nor the Secretary of State threatened to use them in the 2004 elections. And with good reason: those districts have already been declared unconstitutional. If the Defendants had threatened to use the ’94 districts, res judicata would have applied in Plaintiffs’ favor and an injunction would have been granted. But they did not, and Plaintiffs’ challenges to the 1994 districts were no more concrete than a challenge to the 1984 or 1974 districts. “Our role is neither to issue advisory opinions nor to declare rights in hypothetical cases, but to adjudicate live cases and controversies consistent with the powers granted the judiciary in Article III of the Constitution.” Id. at 1138. No case or controversy exists over the ’94 districts.

VI. The Voting Rights Act Challenge to the 2002 Legislative Plan

As part of their efforts to remain in federal court, Plaintiffs also raised a Voting Rights Act claim against the IRC’s 2002 Legislative Plan in their First Amended Complaint. They sought a preliminary and permanent injunction prohibiting the Secretary of State from using that Plan in the 2004 elections. (First. Am.Compl^ 61.) Using this Court’s Navajo Nation plan as a benchmark, Plaintiffs alleged that the 2002 Plan adds more than 5,000 voting age Hispanics to Legislative District 14. {Id. ¶ 64.) This increase, they asserted, raises the Hispanic voting age population in District 14 from 55.18% to 58.11% and “dilute[s] the influence of Hispanic voters in another legislative district [under § 2 of the VRA].” {Id. ¶ 4 (emphasis added).)

Section 2(a) of the VRA prohibits any “voting qualification or prerequisite to voting or standard, practice, or procedure ... [that] results in a denial or abridgement of the right of any citizen to vote on account of race or color [or membership in a language minority group.]” 42 U.S.C. § 1973(a) (incorporating § 1973(b)(f)(2)). “The essence of a § 2 claim is that certain electoral law, practice, or structure interacts with social and historical conditions to cause an inequality in the opportunities enjoyed by [minority voters] to elect their preferred representatives.” Thornburg v. Gingles, 478 U.S. 30, 47, 106 S.Ct. 2752, 92 L.Ed.2d 25 (1986). Section 2 “is thus violated by vote dilution” — “the practice of reducing the potential effectiveness of a group’s voting strength by limiting its opportunity to translate that voting strength into political power.” Bruce M. Clark & Robert Timothy Reagan, Redistricting Litigation: An Overview of Legal, Statistical, and Case Management Issues 3 (Fed.Jud.Ctr.2002) (citing Gingles, 478 U.S. at 46-51, 106 S.Ct. 2752 and Shaw v. Reno, 509 U.S. 630, 641, 113 S.Ct. 2816, 125 L.Ed.2d 511 (1993)).

In Gingles, 478 U.S. at 50-51, 106 S.Ct. 2752, which involved a challenge to multi-member districts, the Supreme Court held that § 2 will not ordinarily be violated unless three preconditions are met. “First, the minority group ... must be sufficiently large and geographically compact to constitute a majority in a single-member district.” Id. at 50, 106 S.Ct. 2752. “Second, the minority group must be ... politically cohesive.” Id. at 51, 106 S.Ct. 2752. And third, the majority must vote “sufficiently as a bloc to enable it ... usually to defeat the minority’s preferred candidate.” Id. These three factors are necessary but not sufficient to establish a § 2 violation. See Johnson v. DeGrandy, 512 U.S. 997, 1011, 114 S.Ct. 2647, 129 L.Ed.2d 775 (1994); see also Uno v. City of Holyoke, 72 F.3d 973, 980 (1st Cir.1995) (Gingles preconditions do not end case but raise a presumption of a violation). The statute itself requires plaintiffs to prove denial or abridgement of the right to vote “based on the totality of the circumstances.” See 42 U.S.C. § 1973(b).

The first Gingles precondition is of particular importance here. In Gingles, “the plaintiffs alleged and attempted to prove that their ability to elect the representatives of their choice was impaired by the selection of a multimember electoral structure.” Gingles, 478 U.S. at 46, 106 S.Ct. 2752 (emphasis in original). The Court found, at least in the context of a challenge to multimember districts, that the minority group must demonstrate that its population is sufficiently large and geographically compact to constitute a majority in a single-member district. Id. at 50, 106 S.Ct. 2752. But the Court declined “to consider whether section 2 permits, and if it does, what standards should pertain to, a claim brought by a minority group, that is not sufficiently large and compact to constitute a majority in a single-member district, alleging that the use of a multimember district impairs its ability to influence elections.” Id. at 46, 106 S.Ct. 2752 (emphasis in original). Since Gingles, the Court has three times refused to reach the issue of whether a minority group may bring a vote dilution claim when it constitutes less than a majority of voters in a proposed district. See Johnson, 512 U.S. at 1008-09, 114 S.Ct. 2647; Voinovich, 507 U.S. at 158, 113 S.Ct. 1149; Growe, 507 U.S. at 41 n. 5, 113 S.Ct. 1075.

Lower federal courts, however, have had the opportunity to address at least three types of cases where a minority group does not constitute a majority of voters in a proposed district: (i) “coalition” districts, (ii) “crossover” districts, and (iii) “influence-dilution” or “influence” districts. A coalition district is one in which two separate minority groups allege that a district could be formed in which they could join forces to elect a representative. See De Grandy, 512 U.S. at 1020, 114 S.Ct. 2647 (describing such districts). “A ‘crossover’ district is one where members of the minority group are not a majority of the relevant voting population but nonetheless have the ability to elect representatives of their choice with support from a limited but reliable white crossover vote.” Rodriguez v. Pataki, 308 F.Supp.2d 346, 375-76 (citing Hall v. Virginia, 276 F.Supp.2d 528, 533-34 & nn. 7-10 (E.D.Va.2003)). Coalition and crossover districts “are also referred to as ‘performance’ districts, ‘effective’ districts, or ‘ability to elect’ districts.” Id. “An ‘influence district,’ ” by contrast, “is where minority voters may not be able to elect a candidate of them choice but can play a substantial, although not decisive role in the electoral process.” Id. (citing Georgia v. Ashcroft, 539 U.S. 461, 123 S.Ct. 2498, 2512, 156 L.Ed.2d 428 (2003)).

Some courts have been willing to extend Gingles’ first precondition to coalition and crossover districts. In Campos v. Baytown, 840 F.2d 1240, 1244 (1988), the Fifth Circuit permitted African-Americans and Hispanics to be combined for the purposes of complying with the first Gingles precondition, so long as the groups could show that they were politically cohesive. “There is nothing in the law,” the court said, “that prevents the plaintiffs from identifying the protected aggrieved minority to include both Blacks and Hispanics.” The Eleventh Circuit expressed the same opinion in Concerned Citizens v. Hardee County Bd., 906 F.2d 524, 526-27 (1990): “Two minority groups ... may be a single section 2 minority if they can establish that they behave in a politically cohesive manner.” The Second Circuit has also allowed aggregation. See Bridgeport Coalition for Fair Representation v. City of Bridgeport, 26 F.3d 271, 276 (2d Cir.), vacated and remanded on other grounds, 512 U.S. 1283, 115 S.Ct. 35, 129 L.Ed.2d 931 (1994) (combining African-Americans and Hispanics for purposes of satisfying first Gingles requirement). But see Nixon v. Kent County, 76 F.3d 1381, 1390-92 (6th cir.1996) (en banc) (holding that “[t]he language of the [VRA] does not support the conclusion that coalition suits are part of Congress’ remedial purpose”).

Similarly, in Metts v. Murphy, 2003 WL 22434637, at *6 (1st Cir. Oct 28, 2003) (“Metts I”), the First Circuit held that “whatever the status of other influence claims, at least crossover claims are cognizable under the VRA.” The court cautioned that Gingles’ first precondition “should not be read without regard to its. function: to determine whether ‘the ability of minority voters to elect representatives of their choice’ is impeded.” Id. (citing Gingles, 478 U.S. at 48, 106 S.Ct. 2752). In the First Circuit’s view, “[Requiring the protected class to show that it is an absolute majority [would] ignore[] the reality that the class could elect its preferred candidate without such numbers” and “contravene[ ] the plain text of § 2, which requires courts to consider the ‘totality of the circumstances.’ ” Id; see also, Pamela S. Karlan, Maps and Misreadings: The Role of Geographic Compactness in Racial Vote Dilution Litigation, 24 Harv. C.R.-C.L. L.Rev. 173, 202 (1989) (“To the extent that courts have read Gingles to elevate the ability to create a district with a majority-black electorate into a threshold requirement for establishing liability in all vote dilution litigation, they have improperly applied one particular theory of liability to other distinct types of vote dilution.”); Martinez v. Bush, 234 F.Supp.2d 1275, 1320 n. 56, 1320-23 (S.D.Fla.2002) (doubting that first Gingles factor was intended to be a “literal, mathematical requirement”). But see Valdespino v. Alamo Heights Indep. Sch. Dist., 168 F.3d 848, 851-53 (5th Cir.1999) (calling Gingles factors “a bright line test”); Negron v. City of Miami Beach, 113 F.3d 1563, 1569 (11th Cir.1997) (indicating same).

The vast majority of courts, however, have rejected pure influence-dilution claims: i.e., § 2 claims directed to districts where a minority group is unable to elect a candidate of its choice even with coalition or crossover support. See, e.g., Cousin v. Sundquist, 145 F.3d 818, 828 (6th Cir.1998) (holding that § 2 violations cannot “consist of an impairment of the minority’s ability to influence the outcome of the election rather than determine it”); McNeil v. Springfield Park Dist., 851 F.2d 937, 947 (7th Cir.1988) (“[W]e cannot consider claims that ... districts merely impair plaintiffs’ ability to influence elections. Plaintiffs’ ability to win elections must also be impaired.”); Rodriguez, 308 F.Supp.2d at 379 (“Dilution of the ability to influence representatives is not an injury cognizable under section 2(b) of the VRA”); Hall v. Virginia, 276 F.Supp.2d 528 (E.D.Va.2003) (same); Balderas v. Texas, No. Civ.A. 6:01CV158, 2001 WL 34104836, at *2 (E.D.Tex. Nov.29, 2001) (same), aff'd, 536 U.S. 919, 122 S.Ct. 2583, 153 L.Ed.2d 773 (2002); DeBaca v. County of San Diego 794 F.Supp. 990, 996-97 (S.D.Cal.1992) (same); Turner v. Arkansas, 784 F.Supp. 553 (E.D.Ark.1991) (same); Hastert v. State Bd. of Elec., 777 F.Supp. 634, 652-54 (N.D.Ill.1991) (same). But see Armour v. Ohio, 775 F.Supp. 1044, 1052 (N.D.Ohio 1991) (recognizing influence claim); McNeil v. Legislative Apportionment Com’n of State, 111 N.J. 364, 828 A.2d 840, 853-54 (2003) (same); Metts II, 363 F.3d at 12 (leaving open the question of whether influence claims are cognizable).

The IRC argues that the Plaintiffs have raised a bare influence dilution claim and it urges the Court to follow the weight of authority rejecting such claims. The Plaintiffs — for them part — do not deny that their § 2 claim is based on influence dilution. Rather, they argue that Rule 8 of the Federal Rules of Civil Procedure necessitates only a short and plain statement of the claim for relief and that they have done just that. They further contend that it would be premature to rule on the merits of their claim at this stage because courts applying that Rule 8 flatly reject the notion that plaintiffs must plead every fact and legal theory they must prove at trial. This is true as a general rule. See Krieger v. Fadely, 211 F.3d 134, 134 (D.C.Cir.2000) (“Complaints need not plead law or match facts to every element of a legal theory”). But where a plaintiff pleads with specificity, it is sometimes possible to plead too much. See Romine v. Acxiom Corp., 296 F.3d 701, 706 (8th Cir.2002) (“[W]hile notice pleading does not demand that a complaint expound the facts, a plaintiff who does so is bound by such exposition.”) (quotation omitted). Further, “[dismissal [on a Rule 12(b)(6) motion] can be based on the lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory.” Balistreri v. Pacifica Police Dept., 901 F.2d 696, 699 (9th Cir.1988). Plaintiffs have explicitly raised an influence dilution claim, and the Court finds that such claims are not cognizable under the VRA.

The Court agrees with the majority view that § 2 of the VRA does not provide a remedy for influence dilution. Section 2 protects the ability of minority groups “to participate in the political process and to elect representatives of their choice.” 42 U.S.C. § 1973(b) (emphasis added). Although the Gingles Court expressed no opinion on influence dilution, it also emphasized: “Unless minority voters possess the potential to elect representatives in the absence of the challenged structure or practice, they cannot claim to have been injured by that practice.” Gingles, 478 U.S. at 50 n. 17, 106 S.Ct. 2752 (emphasis in original); see also Growe, 507 U.S. at 40, 113 S.Ct. 1075 (the first precondition is “needed to establish that the minority has the potential to elect a representative of its own choice in some single-member district”). “If a minority population is too small to elect candidates of their choice in a reconfigured district even with the assistance of reliable [coalition or] crossover voters, then it is the size of the population and not the voting practice or procedure that is preventing the minority group from electing representatives of their choice.” Rodriguez, 308 F.Supp.2d at 379.

More importantly, influence claims “ha[ve] no standards and would be judicially unmanageable.” Rodriguez, 308 F.Supp.2d at 379. “ ‘Influence’ cannot be clearly defined or statistically proved” and admits of no limiting principle. Id. As the Seventh Circuit cautioned in McNeil, 851 F.2d at 947, “[c]ourts might be flooded by the most marginal section 2 claims if plaintiffs had to show only that an electoral practice or procedure weakened their ability to influence elections”. See also Metis v. Almond, 217 F.Supp.2d 252, 258 (D.R.I.2002) (observing that there would be no “ascertainable and objective standard for adjudicating [influence] claims”), vacated by Metis II, 363 F.3d at 12; Hastert, 777 F.Supp. at 652-54 (refusing to open “Pandora’s box” by accepting influence claims); McGhee v. Granville County, 860 F.2d 110, 116 (4th Cir.1988) (citing McNeil for proposition that first Gingles precondition is necessary to prevent the concept of vote dilution from being “an open-ended one subject to no principled means of application”); Illinois Legislative Redistricting Comm’n v. LaPaille, 786 F.Supp. 704, 715 (N.D.Ill), aff'd, 506 U.S. 948, 113 S.Ct. 399, 121 L.Ed.2d 325 (1992) (“The requirement that a minority group be large enough to control a district, not just ‘influence’ it, enables the courts to adjudicate Voting Rights Act claims with a reasonable amount of efficiency and consistency.”)

Even if the Court were inclined to recognize Plaintiffs’ influence dilution claim, the Supreme Court’s summary affirmance of Parker v. Ohio, 263 F.Supp.2d 1100 (S.D.Ohio 2003) forecloses that result. In Parker, minority plaintiffs who were not able to form a majority in a single-member district alleged that the state’s redistricting plan diluted their voting strength because their group was large enough to “influence” the elections in that district. Id. at 1105. A three-judge district court rejected the claim, stating: “Because influence claims are not cognizable in our circuit and the plaintiffs have faded to establish the first Gingles precondition, we see no need to discuss whether or not plaintiffs satisfy the second and third conditions. The plaintiffs’ claim under section 2 of the Voting Rights Act must fail.” Id. The Supreme Court summarily affirmed Parker in November 2003. Parker v. Ohio, 540 U.S. 1013, 124 S.Ct. 574, 157 L.Ed.2d 426 (2003). A summary affirmance by the Supreme Court “binds lower courts, unless subsequent developments suggest otherwise.” United States v. Blaine County, 363 F.3d 897, 904 (9th Cir.2004) (citing Hicks v. Miranda, 422 U.S. 332, 344-45, 95 S.Ct. 2281, 45 L.Ed,2d 223 (1975)). There have been no doctrinal developments of note since Parker.

Finally, the defense of laches bars Plaintiffs’ § 2 challenge to the IRC’s 2002 Plan, whether based on influence dilution or not. Plaintiffs sought to prohibit the IRC and the Secretary of State from using the 2002 Plan in the 2004 elections. Lach-es .is one of the affirmative defenses allowed under Rule 8 of the Federal Rules of Civil Procedure and applies where, as here, the claims presented may be characterized as equitable rather than legal. See Agua Caliente Band of Cahuilla Indians v. Hardin, 223 F.3d 1041, 1050 (9th Cir.2000). It is “an equitable limitation on a party’s right to bring suit [and rests] on the maxim that one who seeks the help of a court of equity must not sleep on his rights.” Jarrow Formulas, Inc. v. Nutrition Now, Inc., 304 F.3d 829, 836 (9th Cir.2002) (quotations omitted). Whether laches bars an action is a discretionary determination to be made by the court based on the particular facts presented. Apache Survival Coalition v. United States, 21 F.3d 895, 905 (9th Cir.1994); Coalition for Canyon Preservation v. Bowers, 632 F.2d 774, 779 (9th Cir.1980). The defense applies to redistricting cases as it does to any other. See White v. Daniel, 909 F.2d 99, 102-04 (4th Cir.1990) (precluding untimely § 2 challenge under doctrine of laches).

To determine whether a suit is barred by laches, a court must consider two factors: the diligence of the party against whom the defense is asserted and the prejudice to the party asserting the defense. Apache, 21 F.3d at 905; Coalition for Canyon Preservation, 632 F.2d at 779. “A determination of whether a party exercised unreasonable delay in filing suit consists of two steps.” Jarrow Formulas, Inc., 304 F.3d at 838 (citations omitted). “First, [the Court] assesses] the length of the delay, which is measured from the time the plaintiff knew or should have known about its potential cause of action.” Id. (citations omitted). “Second, [the Court] deeide[s] whether the plaintiffs delay was reasonable.” Id. (citations omitted). The Court “also considers] whether the plaintiff has proffered a legitimate excuse folks delay.” Id. (citing Danjaq, LLC v. Sony Corp., 263 F.3d 942, 954-55 (9th Cir.2001)).

“Unreasonable delay, however, is not enough: ‘In addition, laches requires prejudice.’ ” Danjaq, 263 F.3d at 954 (quoting Couveau v. American Airlines, Inc., 218 F.3d 1078, 1084 (9th Cir.2000)). “The very purpose of laches as an equitable doctrine — and the reason that it differs from a statute of limitations — is that the claim is barred because the plaintiffs delay occasioned