*2 ARNOLD, Before RICHARD S. Chief EISELE, Judge, Circuit Senior District HOWARD, Judge, Judge. District ARNOLD, RICHARD S. Chief Circuit Judge. 1989,
In
portions
this Court found that
Arkansas’s 1981 state-legislative-redistricting
Voting Rights
violated Section 2 of the
Clinton,
v.
F.Supp.
Act.
730
196
Jeffers
mem.,
(E.D.Ark.1989),
1019,
498 U.S.
aff'd
(1991).
662,
112
S.Ct.
L.Ed.2d 656
1990,
remedy
ordered the
Court
State
by creating
violations
these
additional black-
majority legislative
F.Supp.
districts. 740
(E.D.Ark.1990), appeal
dismissed on mo
1129,
appellants,
tion of
498 U.S.
S.Ct.
(1991).
1096,
2. the extent which geographically compact to constitute a ma- political or elections of the state subdivi- jority single-member in a racially polarized; district. sion is 3. the extent to which the state or [******] unusually political subdivision has used Second, minority group must able to districts, majority large vote re- election politically show that it is cohesive. anti-single provisions, quirements, shot * * * * * * voting practices procedures or other Third, minority must be able to demon- may opportunity enhance the for strate that the white votes suffi- against minority discrimination ciently as a bloc to enable it —in the ab- group; circumstances, special sence of such as the slating pro- if is a candidate 4. there minority running unopposed candidate cess, whether the members of the minor- usually minority’s to defeat pre- ...— ity group have been denied access to ferred candidate. process; 50-51, 106 478 U.S. at S.Ct. 2766-67. The the extent to which 5. members of plaintiffs proving bear the initial burden of minority group politi- in the state or preconditions. Quilter, these Voinovich v. cal subdivision bear the effects of dis- - U.S. -, -, 1149, 1156, 122 education, in crimination such areas as (1993). L.Ed.2d 500 In order to assess their health, employment and which hinder claims, existing plan compared must be ability participate effectively in their system to “an ideal electoral which does not process; political challenged contain the structure.” Brewer v. political campaigns Ham, (5th 448, 6. whether have Cir.1989); 876 F.2d see 88, 106 been characterized overt or subtle Gingles, also 478 U.S. at S.Ct. at 2785 appeals; (O’Connor, J., racial concurring). We must bear in mind, however, where, here, politi the extent to which members of jurisdiction cal responded previous has to a minority group have been elected to judicial finding pro of vote dilution with a jurisdiction. public office posed remedy, may “simply substitute Additional factors some cases judgment equitable remedy [our] of a more probative part plain- value as a had legislative body; for that of may [we] tiffs’ to establish a violation evidence are: only proffered consider whether the remedial significant there is a whether lack plan legally unacceptable because it vio responsiveness part on the of elected statutory lates anew voting constitutional or particularized officials to the needs of is, rights whether it fails to meet the —that minority group. the members of the applicable original same standards to an policy underlying
whether the challenge legislative plan place.” of a political state or County, subdivision’s of McGhee v. Granville -use F.2d (4th Cir.1988) such voting qualification, prerequisite (county’s plan electing commissioners) citing Upham v. J. African politically Americans are a board Seaman, 37, 42, group cohesive eastern Arkansas. 456 U.S. S.Ct. (1982). 1521, 71 K. L.Ed.2d White voters in eastern Arkansas usu-
ally sufficiently vote as a bloc defeat the community’s African American choice II. ex- cept when runs the candidate of choice in a parties have submitted this dis district which African Americans are a pute for based on factual rec resolution voting majority. and on already ord established case Procedure, Stipulation and Proposed 3-4. Of stipulations in stipulations.2 several These particular significance, light Gingles of the existing plan maps clude of the Board as well K., preconditions, are items J. and which plaintiffs’ proposed latter —the acknowledge prior findings by this Court plaintiffs’ conception representing the of the that blacks in a politically East Arkansas are respect “ideal” With the Senate group cohesive prevalent and bloc factors, factors, Report Gingles and the part State. We see reason not parties already that this stipulate Court has accept aspects plaintiffs’ these two found that: prima facie case as established under Gin- long history A. has a of official Arkansas gles. argue Defendants *5 in voting; discrimination required pres- should be prove anew the today B. discrimination still exists Racial usually voting ence of bloc defeats mi- Arkansas; in the area of it has not Delta nority-preferred under candidates completely disappeared. reject Board’s current We Board’s history long contention that of bloc vot- Housing in the C. discrimination existed ing resulting domination, in white electoral past. Arkansas in the State of case, established in must earlier this be in cities Neighborhoods D. of Eastern proved afresh under the new scheme. The generally Arkansas are identifiable as approach to this factor relies on an “black” or “white.” unduly cramped reading parties’ stipu- extent, voting E. At to some in Mis- least lations, overly as well an broad under- Francis, Crittenden, sissippi, Phillips, St. standing any requirement § 2 Monroe, racially polar- Lee is Counties Hence, proved violation must anew. be we ized, i.e., generally voting whites for with find that the have met their burden generally voting whites for and blacks respect Gingles third the second and blacks white and black candidates when factors. against run each other. III. Historically, F. blacks have had lower Gingles precondition An additional re- and especially economic status the state mains, compactness. As Justice however: of the state. Delta area concurring opinion, O’Connor stated in her “a 1972, through G. From Reconstruction minority voting should court calculate blacks members of the were ever Arkansas strength by minority assuming that Assembly. General group single-member is in a concentrated H. Not since Reconstruction has a black voting major- a district which it constitutes person to the been elected Arkansas Gen- ity. minority group large is not Where the Assembly except from a eral district with a enough, enough, geographically concentrated voting age population. majority black politically enough this be cohesive for appeals possible, minority group’s I. have claim Overt racial occurred fails.” 90, (emphasis at at 2787 campaigns in which a white 478 U.S. candidate case, parties supplied). running against a black candidate. this parties taking step. ing stipulations, parties 2. We us with have allowed commend the this factfinding Given the exhaustive which has al- significant legal us to focus on issues raised case, ready place an additional trial taken by the case. poor By present- of time. would have been a use 660 popu- opportunity representa African American reasonable to elect a
stipulated
“[t]he
Clinton,
sufficiently
upper
large
tive of their
lation in the
Delta
choice.” Smith
687
(E.D.Ark.)
(three-
1361,
F.Supp.
in one additional
1362-63
to constitute
court),
mem.,
988,
judge
house
and one
single-member state
district
488 U.S.
aff'd
548,
(1988),
single-member
quoting
state senate dis- S.Ct.
However,
Senate,
past
this Court has ruled
supermajority
Board created one
that,
fashioning
Voting
Altogether,
remedies
for
district.
plan
the Board’s
estab-
violations,
Rights Act
the creation of districts
supermajority
lishes four
districts.
The
(cid:127)
majorities
enough
plan promoted
with bare
is not
for a
by plaintiffs
House
creates
complete remedy.
compensate
districts,
In order to
majority-black
five
only
but
one of
historically
for
registration
low rates of voter
supermajority
these is a
plain-
district. The
turnout,
plan
“minorities must have some-
majority-black
tiffs’ Senate
includes two
thing
districts,
more than a mere
even of
one of
supermajority
which is a
voting age population in
plaintiffs’
then,
order to have a
district.
plan,
The
creates a
prepared
accept
stipulation
(black
3. We are
to
this
Board —House: HD 94:
incum-
56.32%
parties
attempted
stipulate
fact. The
bent);
also
that
(black incumbent);
HD 95: 63.06%
HD
plaintiffs' proposed remedy
contigu-
districts are
(white incumbent);
97:
HD
61.95%
99: 60.10%
law,
question
ous. We consider this a
of
(black incumbent).
unwilling
finding
hence are
to make such a
59.31%;
HD 38:
HD 48: 62.-
Plaintiffs —House:
solely
stipulation.
inspection
based
on a
Further
67%;
55.04%;
58.61%;
HD 72:
HD 74:
HD 75:
contiguous
confirms that the districts are indeed
(black incumbent).
55.24%
Plaintiffs also indi-
sense;
they
in the narrowest
whether
are suffi-
proposed
cate that
in none of the
-
Reno,
satisfy
ciently contiguous to
Shaw v.
there a white incumbent.
-,
2816,
U.S.
«©Í©«©
667 have, have, EISELE, Judge, Board could and therefore should District Senior majority voting age popu- black concurring. created five (hereafter VAP) lation Districts in the House by my in the result reached I concur created, they actually area of the four instead disagree I with some then- brothers but major- they and that have should created two analysis. legal much of their reasons and with ity black VAP Senate districts instead the to be of tran- I consider issues Because they actually majority created. one The society I have importance scendent our opinion task states: “Our is to determine my forth views some detail. decided to set redistricting plan whether the violates State’s opinion concurring This carries forward the Voting Rights 2 it Section of the Act because disagreements expressed I have in numerous black-majority dis- fails to create additional during opinions that I have filed dissenting tricts.” of this action.1 course on originated an attack This case 1993, 16, In their filed response December by adopted Plan Gover- Apportionment 1981 plaintiffs’ defendants state burden is White, Attorney Clark nor General Steve and 1991 demonstrate that the Plan “results Paul Secretary of Pursuant to State Revere. unequal cit- process” access to the electoral jurisdiction equitable an retention of created 30, 46, ing Thornburg Gingles, v. 478 U.S. per- by majority plaintiffs were same (1986). 2764, 2752, 92 25 L.Ed.2d Apportionment mitted the 1991 to attack that, facts, They on the contend uncontested by then Bill Clin- developed Plan Governor plaintiffs showing. quote make this I cannot ton, Bryant Attorney General Winston argument: from their I Secretary Bill McCuen. of State pov- Plaintiffs’ focuses on brief the relative throughout has no maintained that this Court erty reports in the It blacks Delta. 1991 jurisdiction of the attack on the Plan. census on the socio-economic data relative 15,1993,1 my forth As late November set area, standing blacks and whites additional views on this issue also stated nothing re- and contends that more is compelled I reasons which believed sua quired unequal ability partici- to show sponte latest attack. See dismissal process pate than to estab- the electoral Septem- “Dissenting Opinion Opinion filed in this Plaintiffs do disparity lish realm. adopt I ber 1993.” those views without contend, though, they have not not repeating here. them from proved, prevented blacks are three-judge The of this registering or for the candidates that the should reach court concluded Court or allegation There is no choose. being by of the claims asserted merits any proof voter less that black turnout is Rights plaintiffs 2 under Section of the Voter white, hin- than that black or voters not Act. Since the named were of a any way exercising from then- dered in mind, challenges made separate were right to do contend Nor vote. County plain- “Pulaski Plaintiffs” and prove voters to elect are unable usually tiffs from East Arkansas which we the 1991 of their choice under candidates The refer as the “Delta Plaintiffs.” Pula- Indeed, plaintiffs shown have not County plaintiffs with the ski have settled single under the results of a election leaving only us claim State thus voter-preferred a black where Basically the the Delta Plaintiffs. Delta by a white voter- candidate was defeated objection to 1991 Plan Plaintiffs preferred candidate. go Apportionment far the Board of did fashioning remedy previously “[b]lack This court has held that enough plan to They powerless. from exer- past They voters are far discrimination. contend December, II) following (.Jeffers 1991. On was filed in 1. See such dissents I” "Jeffers (those dealing 2, 1993, opinions opinion September attack with the filed an Plan): (1990) F.Supp. dissent be- summary 1981 730 196 dealing the defendant's motion 226; (1990), gins F.Supp. 585 dissent at judgment. November filed a dissent thereto on I 602; (1990), begins F.Supp. at dissent 15, begins challenge 1203. The to the 1991 Plan decisive, representation portionate influ- voters in significant, sometimes for black cise Clinton, region plaintiffs’ the Delta claim must fail. ence.” Jeffers (E.D.Ark.1989). went on to Court Proportionate representation important is an presently existing that “there are mix, note in the overall circum- factor but *13 voting by black citizens in legal barriers to representa- that blacks have stance achieved only circum- Id. at 204. The Arkansas.” legislature approximately tion in which the time, changed that that has since stance upper proportionate to their numbers record, in the current is that reflected voting- not an a Delta is absolute defense to proportionate now elect a number of blacks claim. so particularly dilution This is when in from solid ma- representatives the Delta focus, here, districts, the is one or two pover- jority BVAP districts. Evidence challenge. rather than statewide region begs ty among blacks in the the majority plaintiffs acknowledges that are able to question of whether blacks seeking to establish a violation of Section 2 equal participate on an basis whites satisfy following a minimum” must “at the Indeed, shows that the evidence there. in preconditions Gingles: set out access, equal black because voters there First, minority group the be able representatives pro- choice must of their in elect sufficiently large population the area. In demonstrate it is portion to their in short, absolutely geographically compact no a ma- there is evidence constitute partici- jority single-member in a case that black voters cannot district. pate basis with white voters. the electoral process Furthermore, on an equal [******] nothing Second, indicates that black voters cannot minority group the be able to must fact, Plaintiffs elect the evidence shows representatives of their choice—in also assert just the Board has the opposite. show [******] it is politically cohesive. Third, impermissibly minority created influence districts the must be to demon- able majority it could have created black majority when strate that the votes suffi- white brief, They Plaintiffs’ 14-15. p. districts. ciently as bloc to the enable it —in ab- majori- an define area where additional special circumstances, sence as the such ty district BVAP senate could created minority running unopposed candidate Board’s as the area included senate usually minority’s pre- to defeat the ...— 1, 7, 21,22, 23 28. districts Of these ferred candidate. (29%) majority two are seven 50-51, at U.S. 8 and SD 22. The total BVAP—SD VAP To preconditions majority establish these 336,944; in these seven districts is rely, appears to 107,569 See, the absence of other actu- or 32%. attachment BVAP upon (a proof, stipulations al certain made list of Board’s districts their parties. particularly, parties parties More population breakdowns which the stipulated already found, part that this previously Court had have submitted as Thus, plaintiffs plan). plan previous Board’s connection with chal- lenge Plan, gives represented the area of the 1981 these dis- that: representation. 29% tricts Black politically J. African Americans are a represent population, voters 32% of the but group cohesive in Eastern Arkansas. majority plaintiffs ask for an additional K. voters in White eastern Arkansas usu- district, representa- or 43% of the BVAP ally sufficiently vote as a defeat bloc to Plaintiffs not tion. are entitled maximi- community’s African American- choice ex- representation beyond propor- zation of cept when candidate of choice runs in a Blunt, tionality. Nash v. in which African Americans are a (W.D.Mo.1992). majority. agree I I argument, most of this but join my majority disagreeing accept brothers in with the The finds “no reason aspects suggestion pro- plaintiffs’ prima creates because the these two major plain- I is that these Gingles: dis- difference under facie as established made attack tiffs a statewide whereas here agree. seeking the Delta are one additional prove plaintiffs must my view majority House district and one addi- whenever Gingles preconditions anew majority district. tional black Senate Gener- reapportionment attack on a make a new “voting patterns in proof al about the Delta” respect to two new With specific in favor should be eschewed evi- sought by the black districts voting patterns dence about the of whites minority that the citi- new evidence specific and blacks in areas involved “political- proposed zens in those showing pertinent period and evidence time ly votes “the white cohesive” formed a black citizens involved usually a bloc it sufficiently as to enable *14 willing I not cohesive unit. am to assume minority’s candidate.” preferred defeat the citizens, any that all black more than all that have con- enough It is the not citizens, common on edu- white share views that on this Court such vinced the economics, cation, religion, government or in other district existed 1981when conditions may politics, to local or that be assumed also Plaintiffs must show lines were drawn. goals. interests The share common in 1991when the existed such conditions regard adequate in in proof this was not districting place. The rec- challenged took attack; prac- connection the 1981 it is with Gingles those ord does not establish herein tically in this attack on the 1991 non-existent in mind that such pre-conditions keeping parties stipulation Plan. The that “the specific. proof must be district population upper in African American stipulation have here a What we large sufficiently Delta is to constitute a ma- already parties this Court has made jority single-member in one additional state findings. do not Of course we need certain single-mem- house one additional district and any to tell us stipulation parties of what nothing tells us ber Senate district” about to have in this has found the facts been Court political of the black citizens eohesiveness upon the 1981 re- with attack connection voting in such areas or their behavior. stipula- part of the districting plan. So that 27, 1993, I wrote to the On December by way proof. of really nothing tion adds attorneys parties requesting some for the already point I made the “stipulation” filed on De- clarification of the court, purpose specific of constituted particularly inquired I cember challenge 1981redistrict- assessing the to the 7(J) 7(K). 7(E), 7(1), Paragraphs about ing jurisdiction of the plan, assumed has 7(E) respect I asked if the paragraph With to thereby empowering to act as a plan, itself racial- parties any had additional evidence of general apart overseer of these decade redis- beyond in ly polarized voting that submitted by-product of that trieting efforts. Another Plan. attack on the 1981 connection with the is, ruling jurisdictional apparently, the waiv- 7(J) Paragraph I if respect to asked With ordinarily ing proof requirements ap- any of racial there was evidence “overt If a in these Section 2 cases. new mandated any in occur- peals” having occurred election not, I been constituted it would court had plan. ring final order on the 1981 after our judicial willing simply 7(J) take suggest, be to respect Paragraph I if the to asked With previously by this of facts found Court “political notice parties any evidence of the had Plan) (in purpose for the passing on the 1981 in Arkansas Eastern eohesiveness” blacks 2 in establishing a violation of Section during their beyond the introduced evidence plan by drawing Finally respect of the 1991 different defen- on attack the 1981 7(K) any And based on different circumstances. I asked if there was Paragraph dants attacks supporting proposition the two circumstances new evidence important usually most dif- to defeat entirely different. The white vote a block voters Apportionment choice. African communities ference is that Board American obligated that “there is formulating response the 1991 Plan felt states Defendants’ stipulation ques- support rulings of connection evidence to follow the this Court other that which was evidence ruling Plan. tion than Another its It previous ing agency may intentionally trial this case.” further segre- not itself “stipulations” “merely that the were gate states majority-black races to create summary of the written to be a Court’s find- compelling a absent state interest. But if it ings plan.” of the 1981 so, in the trial The may fails to do a federal court order it to itself) response parties (or that the further states “are do so finding -do it first occurring relying upon elections after the predicated Section 2 solely violation on the plan.” my final order on the 1981 Court’s theory currently that blacks suffer the ef- “my I parties letter to the also stated as- past fects of discrimination which it con- you mean that sumption is when the having cludes opportu- results blacks’ less person African American choice is nity participate political process ‘usually’bloc but not there is when the than other members of the electorate. And community’s African American choice is a proof required support what such a response white candidate.” The defendants (or finding? Only the court another assumption.” is that “this is a correct court) has finding past made a similar concerning long-past the effects of racial dis- majority opinion states: So, crimination. if accepts majority’s one argue Defendants that the should rationale,, any without new or current evi- required prove presence anew the *15 by theory dence a court could declare a voting usually minority- bloc that defeats redistricting plan 2 violates Section and preferred candidates under the Board’s thereby ordering create the basis for into reject current the con- We Board’s districting plan effect a districting that the long history tention that the of bloc agency lawfully itself could not have created domination, resulting in white electoral es- in the first instance. Such “catch-22” situa- case, tablished earlier in this must be naturally tion majority’s arise out of the view proved afresh under the scheme. The new of the law and of the role of the in courts approach to this factor relies on an voting rights these eases. unduly cramped reading parties’ of the stipulations, overly as well as an broad agree I majority’s with the conclusion that understanding requirement any of the that “because the satisfy have failed to proved violation must be Section anew. compactness the pre-condition respect may judicial Of course Courts take notice of Senate, to both the House and we must findings prior in certain cases but the Gin- reject However, their claim.” I fully do not gles pre-conditions, my opinion, must be agree analysis “compactness” its of the specific case and established anew in each Gingles issue. The language important, new Section case. That has not been done to-wit: here. minority Where group large the is not v. appears Under Shaw Reno it now enough, geographically concentrated (whether redistricting legisla- authorities enough, politically or enough cohesive for ture in Congressional connection with federal possible, this to be minority group’s redistricting, or a State Apportion- Board of claim' fails. legislative
ment in connection with state
re-
agree
And I
stipulation
districting)
permitted
will not be
to intention- African
population
American
upper
ally gerrymander in
majority
order to create
Delta is sufficient to constitute one additional
super-majority
black districts absent some majority black House district and one addi-
compelling state interest. But it has been
majority
tional
black Senate district does not
recognized
may
judi-
that courts
do so as a
if
population
tell us
such
“geographically
remedy
upon
cial
finding
Voting
based
a
of a
enough”
comply
concentrated
with consti-
Rights Act violation on a Constitutional viola-
tutional
If
necessary
standards.
it is
to de-
tion.
part
districting
from traditional
principles in
majority’s
bring
view Ofwhat is essential to
order
proposed
into a
district suffi-
prove
long
a Section 2 violation runs head
cient numbers of black citizens to form a
and,
so,
into this
doing
majority
construct
creates
black district then that district im-
result,
an anomalous
mediately
to-wit: The
suspect. Strange
redistrict-
becomes
shapes
only “by
such districts
predominate
have created
disre-
configurations reveal
districting principles
drawing
garding
lines.
traditional
such
reliance on race
compactness, contiguity,
respect
I filed on as
for
The dissent
See
Reno.
Shaw
subdivisions,” Reno,
-,
9, 1990,
my
at
opinion
political
that this
reflects
March
But,
directly
principles
traditional
S.Ct.
2827.
while Reno dealt
departed from
Court
only
proposed
instead
with the inference that such “bizarre”
adopting plaintiffs’
districts
configurations
proposed by
unexplainable
grounds
the defendants
reme-
of those
race,
holding
2 violations it found
other than
its
has much more
dying the Section
pertinent application
the facts of this case.
Plan:
my opinion
gerry-
It is
that race-conscious
reaching my more fundamental dis-
Before
purpose
major-
mandering
creating
for the
majority’s contention
agreement with the
(or
ity
super-majority)
legislative districts
duty
a state is under some
virtue
scrutiny requirements
must meet the strict
super-
Voting Rights Act
to create
clause,
equal protection
whatever
districts,
it must be men-
appearance
resulting
district. Plain-
briefly
plaintiffs’ proposed
tioned
tiffs contend that the defendants should have
accurately
charac-
cannot be
remedial
gerrymandering
engaged in such race-based
expansion
simple
of district
terized as
in order to create the additional
compact
con-
which are as
boundaries
do
black districts
seek. So we
not need
proposed by
tiguous as
those
prove
indirect or circumstantial evidence to
Apportionment.
Board of
additional districts which
plan creates
num-
Plaintiffs’ alternative
state
defendants should have created
oddly-shaped
ber
House
would
their
Plan
have been
result
configuration
being
worst
the inverted-“S”
gerrymandering
race
same
conscious
—the
HD
If
one were
boundaries
*16
indeed,
plaintiffs
process,
through
went
straight
in
line he
perfectly
travel
a
or
developing
proposals.
in
their own
could
and exit this district no
she
enter
Louisiana,
eight
Hays
than
times as the district cuts
in
less
As stated
(W.D.La.1993):
through townships
municipal
and
bound- F.Supp. 1188
counties in an awkward
aries across three
legislature
racially-gerryman-
A
creates a
capture
residents
effort to
sufficient black
districting plan
it
dered
when
intentional-
comprise
supermajority
a
of 63% black
ly
along
or
racial
draws one more districts
VAP.
intentionally segregates
lines or otherwise
voting
sufficiently compact
into
districts based on their
proposed
A
citizens
Thus,
gerrymandering” re-
community,
race.
“racial
if it retains a natural sense of
accidental,
intentional,
represen-
fers to the
not
and is not so convoluted that its
easily
actually
segregation of
on the basis of race.
could
who
voters
tatives
not
tell
district. East
lives within the
dealing
Jefferson
suggests that
we are
No one
here
Parish,
coalition v.
Jefferson
segregation
with the
of the races.
accidental
(E.D.La.1988).
has
That standard
not
objective
and
Rather it is the clear intent
It
difficult to
met here.
would be
been
ex-
plaintiffs’ proposal. Shaw is further
confusing
a
dis-
envision more bizarre
plained Hays as
follows:
by plaintiffs
proposed
than
one
trict
holding
already
We
noted the narrow
(and
judges
adopted by majority
plaintiff may
claim
state a
Shaw:
court)
resulting
HD 74
this
and the
on
by al-
Equal
under
Protection Clause
alone,
adjacent districts.
this reason
For.
leging
reapportionment
scheme
plaintiffs’ proposed remedy
part
this
adopted
its
by his
is so irrational on
state
rejected.
be
should
only
as an
face “that it can
be understood
segregate
separate
into
effort
voters
plaintiffs
saying
here is that
What
race____”
have,
voting
because of their
therefore
districts
defendants could
have,
problem of
primarily deals with the
an
Shaw
should
created
additional House
indirectly
proving
gerrymandering
racial
District in
District and an additional Senate
However,
inferentially.
gerrymandering—
Racial
Delta.
the defendants could
says
matically
exempt
plan
the Court
Shaw —can
inferred
from what
bizarrely shaped
districts are so
presumption
when
amounts to a
of unconstitu-
bespeak
impermis-
they presumptively
tionality.
an
purpose.
sible
Here the state did not create the additional
gerrymandering may
But racial
seek. Had the
—a fortio-
defendants
by
proved
ri—also be
direct evidence that
compelling
created such districts what
state
legislature
districting plan
enacted a
interests for their action can be
found
this
specific
segregating
intent
citizens
None,
record?
I submit.
into
districts based on their race.
In
plaintiffs complain
this case the Delta
nearly everyone
everyone
If
—involved
—or
Apportionment
go
the Board of
did not
design
passage
redistricting
of a
enough
far
remedy past
its efforts to
plan
design
asserts or concedes that
discrimination. But it is clear that the Board
race,
gerry-
was driven
then racial
making
plan,
the 1991
not
was
concerned
mandering may
resorting
be found without
remedying past
discrimination.
It as-
approach approved by
to the inferential
already
sumed that this court had
done that
recognized
the Court
Shaw. The Court
rulings
in its 1990
on the 1981
inquiry
legislative
into
“[n]o
Shaw
approach
simply
was
to follow the
purpose
necessary
when the racial clas-
approved plan
nearly
Court
as
it
could
appears
sification
on the face of the stat-
adapt
consistent with the need to
to the
equally
ute.” The same is
true when virtu-
slightly changed population figures coming
unanimous,
ally
essentially uncontroverted
out of the 1990 census. So the Board was
direct trial evidence establishes racial clas-
trying
figure
out
it
how could create
sification,
case,
as it did here.
super-majority
additional
black or
overwhelming
find
evidence—both indirect
districts. The
are the ones
product
and direct —that
the Plan is a
insisting
who are
on
gerry-
a race conscious
gerrymandering.
racial
creating
mander aimed at
additional black
And
situation we have here. majority
Clearly
districts.
if the Board had
Hays
following cogent
language
cites
suggested
drawn district
lines as
Douglas’
Wright
from Justice
dissent in
v. plaintiffs,
then the Board’s decision could
52, 66-67,
Rockefeller, 376 U.S.
challenged
have been
equal protection
611,
responsibility generated con- is the madness
Such (or language-based, or cept of race-based districting. religious-based)
ethnic-based giving group of one to this the notion
Add represen- of what is left
super-majority and democracy?
tative How to ask: will General
It fair Arkansas, or
Assembly of the State opin- to the Apportionment, react
Boards of in the future? Will of this court
ions salutary principle democratic
extension court’s majority rule be chilled order, va- preclearance an order the
earlier by the
lidity reviewed of which has been (because of the Supreme Court
United States appeal abandonment
State’s
issue)? Will, future, legislature Apportionment feel free
and the Board community-
redistrict on the basis rational race principles, or will continue
of-interest process? in such controlling factor
Time.will tell.
Amy GARTHUS, #469- L. SS
68-9046, Plaintiff, AND OF HEALTH
SECRETARY SERVICES,
HUMAN
Defendant.
Civ. No. 5-92-94. Court, States District
United Minnesota,
D.
Fifth Division.
Sept.