dissenting.
Article IV, § 2, ¶ 3 of the New Jersey Constitution was, until today, a vital provision of our law. A majority of the Court is content to jettison the provision based on a perceived Supremacy Clause concern. I disagree with the Court’s presumption of a prior invalidation of the state constitutional provision based on past decisions of this Court. I also disagree that the record supports the majority’s conclusion that, in any event, Supremacy Clause concerns require our constitutional provision to be declared unenforceable in this instance. In my view, the majority misperceives the interplay between the Voting Rights Act (VRA), 42 U.S.C.A § 1973, and our State Constitution.
*402I.
In 2001, the Legislative Apportionment Commission adopted a plan dividing Newark and Jersey City into three legislative districts each. Litigation ensued, in which plaintiffs contended that the 2001 plan violates the mandate of Article IV, § 2, ¶ 3, which provides:
The Assembly districts shall be composed of contiguous territory, as nearly compact and equal in number of their inhabitants as possible, and in no event shall each such district contain less than eighty per cent nor more than one hundred twenty per cent of one-fortieth of the total number of inhabitants of the State as reported in the last preceding decennial census of the United States. Unless necessary to meet the foregoing requirements, no county or municipality shall be divided among Assembly districts unless it shall contain more than one-fortieth of the total number of inhabitants of the State, and no county or municipality shall be divided among a number of Assembly districts larger than one plus the whole number obtained by dividing the number of inhabitants in the county or municipality by one-fortieth of the total number of inhabitants of the State.
No one disputes that application of that mathematical formula would divide Newark and Jersey City into two legislative districts each.
On cross-motions for summary judgment, the trial court ruled, among other things, that the Commission was not bound by the restrictions set forth in Article IV, § 2, 113. The court held that the abrogation of the county-line mandate, announced first in Scrimminger v. Sherwin, 60 N.J. 483, 291 A.2d 134 (1972), and reexamined and reaffirmed in Davenport v. Apportionment Comm’n, 65 N.J. 125, 319 A.2d 718 (1974), freed the Commission from the necessity of adhering to the whole-municipality concept in eases of large municipalities such as Newark and Jersey City. The court, therefore, granted summary judgment to the Commission.
The Appellate Division reversed, declaring that the language of Article IV, § 2, ¶ 3 that requires dividing Newark and Jersey City into two districts never was invalidated under our prior case law but remains the starting point for legislative reapportionment. McNeil v. Legislative Apportionment Comm’n of State of N.J., 357 N.J.Super. 74, 86, 813 A.2d 1264, 1271 (2003). The court, in *403effect, granted summary judgment in favor of plaintiffs, remanding the case to the Commission for creation of a reapportionment plan that conforms with our Constitution. Id. at 93, 813 A.2d. at 1275. We stayed the Appellate Division order, permitting the Commission’s plan to remain in effect. 176 N.J. 71, 819 A.2d 1187 (2003).
I agree with the Appellate Division to the extent that it concluded that the constitutional provision at issue remains operable, and need only give way in the face of superior federal voting-rights principles. In other words, every legislative apportionment initiative should begin with our Constitution and if our Constitution can be adhered to consistent with federal law, it should be. I do not subscribe to the majority’s conclusion that past departures from Article IV, § 2, ¶ 3 effectively have rendered that provision a nullity. I interpret our prior cases as having been decided on their unique facts and not within the context of the present dispute.
The Court addressed Article IV, § 2, ¶3, as it applies to counties, in Scrimminger, su/pra. The 1970 census revealed that the twenty-one counties in New Jersey had significantly different populations. Scrimminger, supra, 60 N.J. at 495, 291 A.2d at 141. Because of the disparity in population, “the counties, under the present distribution of the State’s population, [could not] constitute separate districts. Nor [were] they suitable building blocks for the formation of meaningful districts.” Id. at 487, 291 A.2d at 137. Adherence to county lines was determined to result in a violation of the one-man one-vote principle, in that constitutionally unacceptable deviations in population would occur between districts. Id. at 498, 291 A.2d at 142. Thus, in respect of counties, it was “plain that this limit in our State Constitution exceeds what the Federal Constitution permits.” Id. at 489, 291 A.2d at 138.
In determining that county-line adherence was impossible, the Court had this to say about municipalities:
Municipal lines should be observed, if possible, for if they are followed, dividends may be expected in terms of furthering the relationship of these political subdivi*404sions and the State and also in terms of restraining to some extent the opportunities for drawing lines for partisan advantage. Municipalities are thus appropriate building blocks for the creation of districts. The boundaries of larger municipalities will of course have to be breached, and in this regard, the Commission may have to depart from the direction in Art. 4, § II, ¶ 3, concerning the division of a municipality.
[Id. at 497-98, 291 A.2d at 142 (emphasis added).]
The Apportionment Commission viewed that language as license to disregard freely the mandate of the Constitution in respect of municipal boundaries. That interpretation ignores the discussion’s context: the need to ensure that “every man’s vote should equal another’s,” and the problems created by the use of large, demographically unequal counties as building blocks. Ibid. Against that backdrop, and in recognition of that concern, we hypothesized that the municipality provision in the Constitution “may” have to be breached at some later date. Ibid. But the one-man one-vote question is not implicated here, for there is no allegation that the division of Newark and Jersey City into only two districts each would result in impermissible population variations.
Although plainly not dispositive, Scrimminger is important for recognizing the importance of unified municipal representation in the State Legislature. The Court acknowledged that “dividends” would flow from restrained division of municipalities in district representation in that it would foster better relations between the municipality and State, and would curb the drawing of lines for partisan advantage. Id. at 498, 291 A.2d at 142. Similarly, the United States Supreme Court has acknowledged that respect may be accorded to municipal boundaries as a “legitimate consideration” and “traditional districting principle.” Mahan v. Howell, 410 U.S. 315, 329, 93 S.Ct. 979, 987, 35 L. Ed.2d 320, 333 (1973); see also In re Legislative Districting, 370 Md. 312, 805 A.2d 292, 319 (2002) (recognizing value of maintaining integrity of political subdivisions); In re Reapportionment, 160 Vt. 9, 624 A.2d 323, 330 (1993) (observing that “unnecessary fragmentation of [municipalities] limits the ability of local constituencies to organize effectively and increases voter confusion and isolation”); Carstens v. Lamm, *405543 F.Supp. 68, 82 (D.Colo.1982) (recognizing frequent use of respect for municipal boundaries as criteria in evaluating redistricting plan); J. Gerald Herbert, Redistricting in the Post-2000 Era, 8 Geo. Mason L.Rev. 431, 451 (2000) (same). As the Supreme Court has stated, respect for boundaries of political subdivisions may be considered in that it
insur[es] some voice to political subdivisions, as political subdivisions----[L]ocal government entities are frequently charged with various responsibilities incident to the operation of state government. In many States much of the legislature’s activity involves the enactment of so-called local legislation, directed only to the concerns of particular political subdivisions.
[Reynolds v. Sims, 377 U.S. 533, 580-81, 84 S.Ct. 1362, 1391, 12 L.Ed.2d 506, 538 (1964).]
In my view, the clear, unambiguous language of our Constitution required the Commission to divide Newark and Jersey City into no more than two districts each, and could not be ignored unless it would have been impossible to comply with both federal and state requirements. See Scrimminger, supra, 60 N.J. at 489, 291 A.2d at 137-38. Although I acknowledge that the provision has been breached in practice in the past, without objection from either political party, it is this Court’s duty when presented squarely with the question of the provision’s enforceability to answer that legal question of constitutional significance cognizant of, but not foreclosed by, what went before. The unambiguous language is entitled to enforcement by this Court unless there is a contradictory requirement of higher law. See, e.g., Stephenson v. Bartlett, 582 S.E.2d 247 (N.C.2003) (holding that redistricting plan violated state constitutional mandate, and thus affirming trial court’s findings that: 1) challengers of redistricting plan proved that it was possible to comply with both VRA and state requirements; and 2) defendants failed to show any federal law required violation of state constitution in order to create redistricting plan).
Before addressing the question of conflict with federal requirements, however, the majority’s “contemporaneous construction” analogy requires comment. The dispute in this matter concerns not the meaning of the constitutional words. It concerns their enforceability. There is a difference in kind, not degree, between *406interpretation and enforceability. The principle of contemporaneous construction may be of persuasive use when there is an ambiguity, when there is some doubt, or when the literal interpretation of an enactment creates a result that is at odds with the legislative intent underlying a statutory enactment. But that is not the case here. The constitutional words involved in this dispute are not ambiguous. Nor is enforcement of the provision at odds with any discerned legislative intent. The only question is whether the words of the Constitution themselves are enforceable, and that constitutional question is not subject to resolution based on a principle of statutory construction.
II.
I would have gone along with my dissenting colleagues who argue for a remand of this matter to the Law Division because the parties do not agree that a plan dividing Newark and Jersey City into two districts each can be forged consistent with federal voting-rights law. We simply do not know at this point. The trial court did not test that notion because of its holding concerning the abrogation of Article IV, § 2, ¶ 3. We know that the Apportionment Commission did not try to comply, believing that it was not necessary. Thus, the answer to this question is seemingly not available from the Commission’s record of its action. Assuming further proceedings are necessary, I also would have agreed to impose on plaintiffs the burden of going forward with at least one plan dividing Newark and Jersey City into two districts each along with the burden of demonstrating that it is substantially certain that such a plan would not violate federal voting-rights principles. Upon plaintiffs proof that our Constitution could have been followed consistent with federal law, the presumed validity of the Commission’s 2001 plan would be deemed rebutted. Davenport, supra, 65 N.J. at 135, 319 A.2d at 723.
The majority dispenses with those procedural requirements, however, and proceeds to make findings and render conclusions *407unsupported by this record. In so doing, the Court, in my view, mispereeives the requirements of the VRA.
III.
An understanding of the fundamentals of the VRA is crucial to the analysis of its intersection with our Constitution. Congress passed the VRA after significant examination of the problem of racial discrimination in voting. South Carolina v. Katzenbach, 383 U.S. 301, 315, 86 S.Ct. 803, 808, 15 L.Ed.2d 769, 779 (1966). Hours of hearings were held in which witnesses detailed the “literacy tests” and other means utilized in certain areas to prevent minority citizens from exercising their right to vote. Id. at 309, 86 S.Ct. at 808, 15 L.Ed.2d at 775.
The bulk of the VRA is aimed at the so-called “covered” jurisdictions. Id. at 316, 86 S.Ct. at 812, 15 L.Ed.2d at 779. The original enactment of Section 5 provided that a “covered” jurisdiction was one for which two findings had been made: (1) as of November 1, 1964, it maintained a voting “test or device,” and (2) less than 50% of voting-age residents were registered on November 1, 1964. Id. at 317, 86 S.Ct. at 813, 15 L.Ed.2d at 780. In 1970, the scope of covered jurisdictions was extended to jurisdictions meeting that two-part test as of November 1, 1968, and in 1975 the date was again extended to November 1,1972. Section 5 Covered Jurisdictions, available at http://www.usdoj.gov/crVvoting/sec_5/covered.htm. To date, covered jurisdictions include whole states, such as Mississippi, Alabama, Georgia, Louisiana, and South Carolina; counties, including five in California, five in Florida, and three in New York; and even municipalities, including towns in Michigan and New Hampshire. Ibid. Neither the State of New Jersey nor any of its political subdivisions are covered jurisdictions under Section 5 of the Act. Ibid.
Covered jurisdictions under Section 5 must obtain “preelearance” before making any changes in an apportionment map. 42 U.S.C.A. § 1973c. Changes in election procedures, including redistricting, will be precleared unless they “lead to a retrogression *408in the position of racial minorities with respect to their effective exercise of the electoral franchise.” City of Lockhart v. United States, 460 U.S. 125, 134, 103 S.Ct. 998, 1004, 74 L.Ed.2d 863, 872 (1983) (citation omitted). Thus, Section 5 is intended to “freeze in place at least the minimum minority influence that existed prior to the time a covered jurisdiction adopted a change.” Katherine Inglis Butler, Redistricting in a Post-Shaw Era: A Small Trear tise Accompanied by Districting Guidelines for Legislators, Litigants, and Courts, 36 U. Rich. L.Rev. 137, 172 (2002). In analyzing whether preelearanee is warranted, then, one must compare the new plan to the so-called “benchmark” plan (i.e., the existing, previously precleared plan) to ensure that the new plan provides the same extent of minority opportunity. Ibid. Section 5 is a safeguard of the status quo in covered jurisdictions, intended to prevent the erosion of existing minority political opportunities. No one contends that Section 5 controls this case.
Section 2, on the other hand, provides a remedy in situations in which a complainant brings an action and establishes the existence of a violation of voting rights. 42 U.S.C.A § 1973a. A party successfully establishes a violation of Section 2 if “based on the totality of the circumstances,” it is proven that
the political processes leading to nomination or election ... are not equally open to participation by members of a [protected class] in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.
[42 U.S.C.A § 1973b.]
To challenge a plan under Section 2, a party bears the burden of showing:
(1) that a minority group is sufficiently large and geographically compact to constitute a majority in a single-member district; (2) the minority group is politically cohesive; and (3) the white majority votes sufficiently as a bloc to enable it usually to defeat the minority’s preferred candidate.
[:Thornburg v. Gingles, 478 U.S. 30, 50-51, 106 S.Ct. 2752, 2766-67, 92 L.Ed.2á 25, 46-47 (1986).]
A reapportionment commission certainly faces a complicated task. When drawing legislative lines, a commission must be cognizant of minority representation and aware of the possibility *409that a Section 2 challenge might be brought by some future litigant. One commentator points out that, in respect of Section 2 considerations, redistrieting commissions should analyze whether any of the Gingles factors are present when making race-based adjustments to plans. Butler, Redistrieting in a Post-Shaw Era, supra, 36 U. Rich L.Rev. at 263.
The majority presumes, in the absence of a record, that the “packing” of minority citizens into the constitutionally mandated number of districts “constitutes” an outright violation of Section 2. Ante at 385-86. I do not. Before one can make that legal conclusion, one must be satisfied that all three prongs of the Gingles test are present. There is nothing in this barren record that comes close to analyzing what Section 2 effect this plan might have, or what effect a plan that complies with the constitutional mandate might have.
According to the majority, enforcement of our Constitution “deprives” the Commission of the ability to create influence districts. The majority considers the creation of influence districts to be “the predicate of a state’s obligation of compliance with Section 2.” Ante at 384-85. Again, that presumes that a Section 2 claim could be successful in New Jersey. To support that presumption, the majority must accept that racially polarized voting does exist in New Jersey, as required by Gingles. However, the record does not contain any support for that prong of the Gingles test. The assertion of deprivation is meaningless unless a violation of Section 2 is proven.
To the extent that the majority believes that its conclusion is compelled by recent caselaw, I cannot agree. The majority’s holding, sweeping aside part of our Constitution’s requirements, ignores the fact that the United States Supreme Court has never held that influence districts are a “predicate” of a state’s Section 2 obligation. Indeed, it remains an open question whether Section 2 so-called “influence” claims are viable challenges to redistricting plans. An “influence district” is defined as a district in which the minority group “could influence the outcome of election contests and possibly elect candidates of its choice with white cross-over *410support.” Butler, Redistricting in a Post-Shaw Era, supra, 36 U. Rich. L.Rev. at 162. Thus, the proponent of an “influence-district” claim would argue that a redistricting plan is improper if it contains districts with majority populations of minority voters instead of a larger number of “influence districts” that would increase the likelihood of electing more of the group’s candidates of choice. See, e.g., Voinovich v. Quilter, 507 U.S. 146, 154, 113 S.Ct. 1149, 1155, 122 L.Ed.2d 500, 511 (1993).
But the Cingles test—which is the current standard for Section 2 claims—suggests that a claim based on dilution of minority influence could not survive, because the first prong requires that a minority group be large enough to constitute a majority in a district. The Supreme Court recognized as much in Voinovich, supra, noting that if it were to assume that influence claims are actionable, “the first Cingles precondition ... would have to be modified or eliminated.” 507 U.S. at 158, 113 S.Ct. at 1157, 122 L.Ed.2d at 514 (holding that Court need not reach question of influence-dilution claim because complainant failed to prove Gingles’s third requirement (white bloc voting)). The Court has left that question for another day. Id. at 154, 113 S.Ct. at 1155, 122 L.Ed.2d at 511.
The majority relies on the recently decided Georgia v. Ashcroft, — U.S.-, 123 S.Ct. 2498, 156 L.Ed.2d 428 (2003), wherein the Supreme Court recognized that influence districts can be a valuable tool for redistricting authorities to employ to ensure that new redistricting plans satisfy the Section 5 retrogression analysis. There, the State of Georgia sought preelearance of its redistricting plan, arguing that its new plan, as compared to the benchmark plan in place, was not “retrogressive” because it “unpacked” minorities to create more influence districts. Id. at-, 123 S.Ct. at 2500, 156 L.Ed.2d at 442. The Court held that the State’s strategy of creating influence districts sufficed to establish that the new plan was not retrogressive under Section 5. Id. at-, 123 S.Ct. at 2504, 156 L.Ed.2d at 442.
*411In analyzing whether the plan satisfied the preclearance standard, the Court noted the distinctions between Section 5 and Section 2, pointing out that the two provisions “combat very different evils, and, accordingly ... impose very different duties upon the States.” Id. at-, 123 S.Ct. at 2510, 156 L.Ed.2d at 450 (quotation omitted). Indeed, the Court observed that the Section 2 inquiry “differs in significant respects from a Section 5 inquiry,” in that a Section 5 inquiry is concerned solely with a “comparison of a jurisdiction’s new voting plan with its existing plan.” Id. at-, 123 S.Ct. at 2510, 156 L.Ed.2d at 450 (quotation omitted). Thus, “while some parts of the Section 2 analysis may overlap with the Section 5 inquiry, the two sections differ in structure, purpose, and application.” Id. at -, 123 S.Ct. at 2510. 156 L.Ed.2d at 450 (quotation omitted).
The Court examined the standard for retrogression, noting that a plan must be analyzed by its overall effect in determining whether it retrogresses from the benchmark. Id. at-, 123 S.Ct. at 2510-12, 156 L. Ed.2d at 450-55 . The Court cautioned that the ability of minority voters to elect a candidate of choice is “complex in practice to determine.” Id. at-, 123 S.Ct. at 2511, 156 L.Ed.2d at 451. It noted the various methods by which the State may maximize electoral success of a minority group, including the creation of majority-minority districts and so-called “influence districts.” Id. at-, 123 S.Ct. 2511, 156 L.Ed.2d at 451 (citing Gingles, supra, 478 U.S. at 48-49, 106 S.Ct. at 2765, 92 L.Ed. 2d at 73 (O’Connor, J., concurring)). In setting forth those methods, including the creation of influence districts, the Court pointed out that “Section 5 gives the State the flexibility to choose one theory of effective representation over the other,” and “leaves room for States to use these types of influence and coalitional districts.” Ashcroft, supra,-U.S. at-, 123 S.Ct. at 2512-13.156 L.Ed.2d at 452-53 (emphasis added).
The majority pounces on that Section 5 analysis to hold that “unpacking” is a “tool” that cannot be taken away from the Commission. Ante at 384-85. In Ashcroft, the Supreme Court’s holding was narrow: Georgia met its burden under Section 5 to *412show that its redistrieting plan did not retrogress from the benchmark plan. In reaching that conclusion, the Court noted that influence districts can be as effective as majority-minority districts in the context of a Section 5 retrogression analysis. To support that proposition, it cited Justice O’Connor’s concurrence in Gingles, supra, in which she set forth the various means of reapportionment to maximize minority-voting strength.
But what the Court clearly did not do is alter its standard for a Section 2 claim: Gingles is still the standard. There is nothing in Ashcroft to the contrary. To suggest that the Court’s inclusion of influence districts in its Section 5 retrogression analysis means that the failure to create such districts now presents a cognizable claim under Section 2 is to assume that the Court would overrule nearly twenty years of precedent without explicitly stating as much. The United States Supreme Court usually is not so timid in its pronouncements. The majority’s leap of logic is unwarranted; its explanation not compelling. It is a leap that this Court should not take. Sadly, it is a leap that sounds the death knell for our constitutional mandate that honors the geographical boundaries of our municipalities, even the largest of them, when the State engages in legislative reapportionment. I must respectfully dissent.
For reversal and reinstatement—Justices COLEMAN, LONG and ZAZZALI and Judge PRESSLER (temporarily assigned)—4.
Dissenting—Justices VERNIERO, LaVECCHIA, and ALBIN—3.