Cromartie v. Hunt

133 F. Supp. 2d 407, 2000 U.S. Dist. LEXIS 21718, 2000 WL 33201263

• Court: District Court, E.D. North Carolina
• Decided: March 7, 2000
• Docket: 4:96CV104BO(3)
• Status: Published

Opinions

OPINION

TERRENCE WILLIAM BOYLE, Chief Judge.

This matter is before the Court on remand from the United States Supreme Court’s order holding that the underlying case was not suited for summary disposition and ordering this Court to conduct further proceedings. Hunt v. Cromartie, 526. U.S. 541, 119 S.Ct. 1545, 143 L.Ed.2d 731 (1999). The underlying action challenges the congressional'redistricting plan enacted by the General Assembly of the State of North Carolina on March 31,1997, contending that it violates the Equal Protection Clause of the Fourteenth “Amendment, and relying on the line of cases represented by Shaw v. Hunt, 517 U.S. 899, 116 S.Ct. 1894, 135 L.Ed.2d 207 (1996) (“Shaw II”), and Miller v. Johnson, 515 U.S. 900, 904, 115 S.Ct. 2475, 2482, 132 L.Ed.2d 762 (1995).

Following the Supreme Court’s decision to remand, the parties undertook a new round of discovery, ending in October, 1999. Between November 29 and December 1, 1999, a trial was held before this Court.

BACKGROUND

In Shaw II the United States Supreme Court held that the Twelfth Congressional District created by the 1992 Congressional Redistricting Plan (hereinafter, the “1992 Plan”) was race-based and could not survive the required “strict scrutiny.” 517 U.S. 899, 116 S.Ct. 1894, 135 L.Ed.2d 207. The five plaintiffs in Shaw lacked standing to attack the other majority-minority district (the First Congressional District under the 1992 Plan) because they were not registered voters in the district. Id.

Soon after the Supreme Court ruled in Shaw II, three residents of Tarboro, North Carolina, filed the original Complaint in this action on July 3, 1996. These original Plaintiffs resided in the First Congressional District (alternatively, “District 1”) as it existed under North Carolina’s 1992 Plan. The Plaintiffs charged that the First Congressional District violated their rights to equal protection under the United States Constitution because race predominated in the drawing of the District. The action-was stayed pending resolution of remand proceedings in Shaw v. Hunt, and on July 9, 1996, the same three Tarboro residents joined the Plaintiffs in Shaiv in filing an Amended Complaint in that case, similarly challenging District 1.

By Order dated September 12, 1997, the three-judge panel in Shaw approved a congressional redistricting plan enacted on March 31, 1997, by the General Assembly as a remedy for the constitutional violation found, by the Supreme Court to exist in the Twelfth Congressional District (alternatively, “District 12”). The Shaw three-judge panel also dismissed without prejudice, as moot, the plaintiffs’ claim that the First Congressional District in the 1992 Plan was unconstitutional. Although it was a final order, the September 12, 1997, decision of the Shaw three-judge panel was not preclusive of the instant cause of action, as the panel was not presented with a continuing challenge to the redistrieting plan.¹

On October 17, 1997, this Court dissolved the stay previously entered in this matter. On the same day, two of the original three Plaintiffs, along with four residents of District 12, filed an amended Complaint challenging the 1997 remedial • congressional redistricting plan (the “1997 Plan”), and seeking a declaration that the First and Twelfth Congressional Districts in the 1997 Plan are unconstitutional racial gerrymanders. A three-judge panel was designated by order of the Chief Judge of the Fourth Circuit Court of Appeals, dated January 23,1998.

The Plaintiffs moved for a preliminary injunction on January 30, 1998, and for summary judgment on February 5, 1998. Defendants filed for summary judgment on March 2, 1998, and a hearing on these motions was held on March 31, 1998. Oh April 3,1998, a majority of the three-judge panel issued an Order and Permanent Injunction finding that the Twelfth Congressional District under the 1997 Plan was unconstitutional and granting Plaintiffs summary judgment as to that district. The Order and Permanent Injunction also granted Plaintiffs’ Motion for Preliminary Injunction and granted Plaintiffs’ request for a Permanent Injunction, thereby enjoining Defendants from conducting any primary or general election for congressional offices under the 1997 Plan. Finally, the Court ordered the parties to file a written submission addressing an appropriate time period within which the North Carolina General Assembly 'would be allowed the opportunity to correct the constitutional defects in the 1997 Plan, and to present a proposed election schedule to follow redistricting which provided for a primary election process culminating in a general congressional election to be held on the date of the previously scheduled general election.

Defendants filed a Motion to Stay the April 3 Order, which was denied by this Court on April 6, 1998. On that date, Defendants appealed the denial of their Motion to Stay to the United States Supreme Court, which upheld this Court’s denial on April 13, 1998. Hunt v. Cromarte, 523 U.S. 1068, 118 S.Ct. 1510, 140 L.Ed.2d 662 (1998).

On April 14, 1998, this Court issued a Memorandum and Opinion issuing its findings of fact and conclusions of law regarding the April 3, 1998 order and denying Plaintiffs’ Motion for Summary Judgment with regard to the First Congressional District under the 1997 Plan. On April 17, 1998, Defendants filed a motion asking the Court to reconsider its April 6 order. On April 21, this Motion to Reconsider was denied.

On April 21, 1998, the Court issued a scheduling order, requiring that the General Assembly either submit a new plan to the Court and the Department of Justice by May 22, 1998 or the Court would assume responsibility for drawing an interim plan. On May 22, 1998, Defendants submitted the 1998 Congressional Redistriet-ing Plain (“the 1998 Plan”). The 1998 Plan contained a clause stating that, in the event that the United States Supreme Court found for the State in its appeal, the 1998 Plan would no longer be ordered and thus North Carolina’s congressional districts would revert to the 1997 Plan.

On October 19, 1998, the Court granted a joint motion to stay all proceedings in this action pending a decision by the United States Supreme Court in Hunt v. Cromartie, docketed in the Supreme Court on September 16,1998 as No. 98-450.

On May 17, 1999 the United States Supreme Court entered an order holding that the underlying case was not suited for summary disposition and ordering this Court to conduct further proceedings. Hunt v. Cromartie, 526 U.S. 541, 119 S.Ct. 1545, 143 L.Ed.2d 731 (1999).

In compliance with the Supreme Court’s decision, a three day bench trial was held in this matter, from November 29 to December 1, 1999. Plaintiffs called eight witnesses. Plaintiffs’ first witness was Senator Hamilton Horton, a resident of Forsyth County and longtime member of the North Carolina General Assembly. Senator Horton testified as to his belief that Forsyth County and Winston-Salem were split along racial lines in the 1997 Plan and that District 12 was created with a predominantly racial motive.

Plaintiffs’ second witness was Representative Steve Wood, a resident of High Point, North Carolina. Representative Wood testified that in 1997 he served in the North Carolina General Assembly in a leadership position. Representative Wood ran for Congress in the Twelfth District under the 1998 Plan and is convinced that the 1997 Plan divided High Point and Guil-ford County along racial lines for a predominantly racial motive.

As their third witness, Plaintiffs called Representative John Weatherly of King’s Mountain, North Carolina, a member of the North Carolina General assembly during the consideration of the 1997 and 1998 redistricting plans who had previously served on a commission considering the State’s legislative process. Representative Weatherly testified that he introduced legislation to facilitate the redistricting process through the use of a redistricting commission and that, on the basis of his political and legislative experience, he believed that both Districts 1 and 12 were drawn with a predominantly racial motive.

Plaintiffs’ fourth witness was R.O. Everett, a longtime resident of Salisbury, North Carolina who has been active in politics and has run for the state legislature. Mr. Everett testified that he was familiar with the congressional districts in the Salisbury and Rowan County areas and is convinced that District 12 was drawn with a predominantly racial motive.

Plaintiffs’ fifth witness was J.H. Froelich Jr., a lifetime resident of High Point, NC who testified that he has been active in state and local politics and believes that Guilford County was divided with a predominantly racial motive in both the 1992 and 1997 Plans and that the 1997 Plan’s District 12 was drawn with a predominantly racial motive.

Plaintiffs’ sixth witness was Neil Williams, a resident of Charlotte who served on its city council, is familiar with the Mecklenburg County precincts, and ran for Congress in the 1992 Plan’s District 9. Mr. Williams testified that he is convinced that Mecklenburg County was divided along racial lines with a predominant racial motive and that the 1997 Plan’s District 12 was drawn with a predominantly racial motive.

Plaintiffs’ seventh witness was Don Frey of the North Carolina General Assembly’s Information Systems Division, who presented statistical data from the General Assembly’s database, including relative numbers of persons moved from the 1992 Plan to the 1997 Plan, and current precincts split by the 1997 Plan.

Plaintiffs’ eighth and final witness, whose testimony carried over into the second day of trial, was Dr. Ronald Weber of the University of Wisconsin. Dr. Weber testified as an expert political scientist who has studied, consulted on, and testified in many redistricting cases. Referring to maps and other data, Dr. Weber testified that race predominated in the construction of Districts 1 and 12 under the 1997 Plan, and that cities, counties and precincts were divided along racial lines. Dr. Weber concluded that no motivation other than race could adequately explain the legislature’s decisions to include, exclude, or split certain precincts.

Beginning on November 30, the second day of trial, the Defendants called four witnesses. Defendants’ first witness was Senator Roy Asberry Cooper, III, who testified as to the legislative history and enactment of the 1997 Plan in the North Carolina Senate, focusing on the creation of Districts 1 and 12. Senator Cooper testified that he was unsure whether he could get the 1997 Plan pre-cleared by the Justice Department without creating a majority-minority First District. Senator Cooper’s testimony also brought to light a February 10,1997 email message (the “Cohen-Cooper Email”) sent to him by Director of Bill Drafting Gerry Cohen, a state employee charged with the technical aspect of drawing the districts in 1991, 1992, and 1997 Plans. The Cohen-Cooper Email stated, in part, that “By shifting areas in Beaufort, Pitt, Craven and Jones Counties, I was able to boost the minority percentage in the first district from 48.1% to 49.25%. The district was only plurality white, as the white percentage was 49.67%:” (Exhibit 58; Trial Transcript at 438) The email continues, “This was all the district could be improved by switching between the 1st and 3rd unless I went into Pasquotank, Perquimans, or Camden. I was able to make the district plurality black by switching precincts between the 1st and 4th...” (Exhibit 58, Trial Transcript at 438) The Cohen-Cooper email also states that “I [Cohen] have moved Greensboro Black community into the 12th and now need to take bout [sic] 60,000 out of the 12th. I await your direction on this.” (Exhibit 58, Trial Transcript at 412)

The senator stated that he did not remember receiving the Cohen-Cooper email and denied having given Cohen “specific instructions.” (Trial Transcript at 413, 438)

Additionally, Senator Cooper was questioned about a statement he made to the March 25, 1997 meeting of the House congressional redistricting committee, in which he argued that the 1997 Plan “provides for a fair geographical, racial and partisan balance throughout the state of North Carolina.” (Trial Transcript at 429) The senator claimed that the term “partisan balance” referred to maintaining the six-six Democrat-Republican split in the congressional delegation, but denied that the term “racial balance” would refer to maintaining the ten-two balance between whites and African Americans. (Trial Transcript at 429-30) Senator Cooper admitted that race was “one of the factors that was considered” in drafting the 1997 Plan, and that but denied that it was the predominant factor. (Trial Transcript at 430)

Defendants began the third day of trial with their second witness, Representative W. Edwin McMahan, who testified 'as to the legislative history and enactment of the 1997 Plan in the North Carolina House of Representatives, especially the creation of Districts 1 and 12. Representative McMahan claimed that race was not the predominant factor in the creation of those districts.

Defendants’ third witness wa's Dr. David Peterson of the University of North Carolina at Chapel Hill’s Department of Geography and Sciences. Dr. Peterson presented a statistical analysis of data regarding the question whether race predominated over party affiliation in the construction of the 1997 Plan’s District 12. Dr. Peterson also discussed the variance between Democratic registration and voting behavior, and analyzed Dr. Weber’s reasoning on the predominance of race as a factor in the creation of District 12. In contrast to Dr. Weber, Dr. Peterson’s conclusion was that political considerations, rather than race, might possibly account for the legislature’s decisions to include, exclude, or split certain precincts.

Defendants’ final witness was Gerry Cohen, Director of Bill Drafting for the North Carolina General Assembly. Mr. Cohen testified as to the legislative history and enactment of the 1997 Plan, especially with regard to Districts 1 and 12, as well as the technical aspects of redistricting, including the computer systems used.

FACTS

As discussed above, in 1992 the State of North Carolina established a new set of proposed congressional districts. This 1992 Plan created two districts, the First and the Twelfth, that were challenged by a group of plaintiffs who claimed that the State had deliberately segregated voters into districts on the basis of race without compelling justification. In Shaw v. Reno (“Shaw I”), the United States Supreme Court held that this allegation stated a claim for relief under the Equal Protection Clause of the Fourteenth Amendment. 509 U.S. 630, 658, 113 S.Ct. 2816, 125 L.Ed.2d 511 (1993).

On remand, the District Court found that North Carolina’s Twelfth District created by the 1992 Plan classified voters by race, but that the plaintiffs lacked standing to challenge the First District. In Shaw II, the United States Supreme Court affirmed this finding and further held that the State had not established that its reapportionment scheme was narrowly tailored to serve a compelling state interest, and therefore the 1992 Plan failed the requisite “strict scrutiny” test. 517 U.S. 899, 116 S.Ct. 1894,135 L.Ed.2d 207.

The North Carolina General Assembly convened in regular session on January 29, 1997, and formed redistricting committees to address the defects found in the 1992 Plan. These newly formed House and Senate Committees aimed to identify a plan which would cure the constitutional defects and receive the support of a majority of the members of the General Assembly. Affidavit of Senator Roy A. Cooper, III (“Cooper Aff.”) ¶ 3. In forming a workable plan, the committees were guided by two avowed goals: (1) curing the constitutional defects of the 1992 Plan by assuring that race was not the predominant factor in the new plan, and (2) drawing the plan to maintain the existing partisan balance in the State’s congressional délegation. Cooper Aff. ¶¶ 5, 8, 10, 14; Affidavit of Gary 0. Bartlett, Executive Secretary-Director of the State Board of Elections (“Bartlett Aff.”), Vol. I Commentary at 9-10.

To achieve the second goal, the redistricting committees drew the new plan (1) to avoid placing two incumbents in the same district and (2) to preserve the partisan core of the existing districts to the extent consistent with the goal of curing the defects in the old plan. Cooper Aff. ¶ 14. The plan as enacted largely reflects these directives: incumbent Congressmen generally do not reside in the same district, and each district retains at least 60% of the population of the old district. Cooper Aff. ¶ 8, Affidavit of Representative W. Edwin McMahan (“McMahan Aff.”) ¶ 7.

1. The Twelfth Congressional District

District 12 is one of the six predominantly Democratic districts established by the 1997 Plan to maintain the 6-6 partisan division in North Carolina’s congressional delegation. District 12 is not a majority-minority district,² but 46.67 percent of its total population is African-American. Bartlett Aff., Yol. I Commentary at 10 and 11. District 12 is composed of six counties, all of them split in the 1997 Plan. The racial composition of the parts of the six sub-divided counties assigned to District 12 include three with parts over 50 percent African-American, and three in which the African-American percentage is under 50 percent. Declaration of Ronald E. Web-ber (“Webber Dec.”) ¶ 18. However, almost 75 percent of the total population in District 12 comes from the three county parts which are majority African-American in population: Mecklenburg, Forsyth, and Guilford counties. Id. The other three county parts (Davidson, Iredell, and Rowan) have narrow corridors which pick up as many African-Americans as are needed for the district to reach its ideal size.³ Id.

Where Forsyth County was split, 72.9 percent of the total population of Forsyth County allocated to District 12 is African-American, while only 11.1 percent of its total population assigned to neighboring District 5 is African-American. Id. ¶ 20. Similarly, Mecklenburg County is split so 51.9 percent of its total population allocated to District 12 is African-American, while only 7.2 percent of the total population assigned to adjoining District 9 is African-American.

A similar pattern emerges when analyzing the cities and towns split between District 12 and its surrounding districts: the four largest cities assigned to District 12 are split along racial lines. Id. ¶ 23. For example, where the City of Charlotte is split between District 12 and adjacent District 9, 59.47 percent of the population assigned to District 12 is African-American, while only 8.12 percent of the Charlotte population assigned to District 9 is African-American. Affidavit of Martin B. McGee (“McGee Aff.”), Ex. L. And where the City of Greensboro is split, 55.58 percent of the population assigned to District 12 is African-American, while only 10.70 percent of the population assigned to District 6 is African-American. Id.

An analysis of the voting precincts immediately surrounding District 12 reveals that the legislature did not simply create a majority Democratic district amidst, surrounding Republican precincts. For example, around the Southwest edge of District 12 (in Mecklenburg County), the legislature included within the district’s borders several precincts with racial compositions of 40 to 100 percent African-American, while excluding from the district voting precincts with less than 35 percent African-American population, but heavily Democratic voting registrations. Among Mecklenburg County precincts which are immediately adjacent to District 12, but not inside it, are precincts with 58.818 percent of voters registered as Democrats, and precincts that are 56.464 percent Democratic, 54.213 percent-Democratic, 59.135 percent Democratic, 59.225 percent Democratic, 54.498 percent Democratic, 59.098 percent Democratic, 55.72 percent Democratic, 54.595 percent Democratic, 54.271 percent Democratic, 63.452 percent Democratic, and 59.453 percent Democratic. Id., Ex. P. Similarly, Forsyth County precincts that are immediately adjacent to, but not inside, District 12 include precincts with 57.371 percent Democratic registration, 65.253 percent Democratic registration, 65.747 percent Democratic registration, 65.747 percent Democratic registration, 76 percent Democratic registration, 55.057 percent Democratic registration, 55.907 percent Democratic registration, 56.782 percent Democratic registration, 55.836 percent Democratic registration, and 60.113 percent Democratic registration. Id., Ex. O. Finally, District 12 was drawn to exclude precincts with 59.679 percent Democratic registration, 61.86 percent Democratic registration, 58.145 percent Democratic registration, 62.324 percent Democratic registration, 60.209 percent Democratic registration, 56.739 percent Democratic registration, 66.22 percent Democratic registration, 57.273 percent Democratic registration, 55.172 percent Democratic registration, and 63.287 percent Democratic registration, all in Guil-ford County. Id., Ex. N.

On the North Carolina map, District 12 has an irregular shape and is barely contiguous in parts. Its Southwest corner lies in Mecklenburg County, very close to the South Carolina border, and includes parts of Charlotte. The District moves North through Rowan County and into Iredell County. There it juts West to pick up parts of the City of Statesville. More than 75 percent of the Statesville population that is included in District 12 is African-American, while only 18.88 percent of the population of Statesville excluded from District 12 is African-American. McGee Aff., Ex. L. From Statesville, the District moves East into Rowan County. There it dips to the South to include Salisbury, before turning to the Northeast and entering Davidson County and the City of Thomasville. Over 41 percent of the populations of Salisbury and Thomasville that are included in District 12 are African-American, while only 15.39 and 9.55 percent, respectively, of those that are excluded from the District are African American. Id. The District makes a northwesterly incursion into Forsyth County to include parts of Winston-Salem, where 77.39 percent of the population within District 12 is African-American, and only 16.06 percent of the population left out is African-American. Id. The District moves to the East and narrows dramatically before opening up again to include the predominantly African-American parts of Greensboro, where the District ends.

Objective, numerical studies of the compactness of congressional districts are also available. In his report, “An Evaluation of North Carolina’s 1998 Congressional Districts,” Professor Gerald R. Webster, one of the Defendants’ expert witnesses, presents ■ statistical analyses of “comparator compactness indicators” for North Carolina’s congressional districts under the 1997 Plan. In measuring the districts’ dispersion compactness⁴ and perimeter compactness,⁵ Professor Webster offers two of the “most commonly recognized and applied” compactness indicators. Webster, at 13 (citing Pildes & Niemi, Expressive Harms, “Bizarre Districts,” and Voting Rights: Evaluating Election-District Appearances After Shaw v. Reno, 92 Mich. L.Rev. 483, 571-573, table 6 (1993) (hereinafter, “Pildes & Niemi”)); and see Bush v. Vera, 517 U.S. 952, 959-60, 116 S.Ct. 1941, 1952, 135 L.Ed.2d 248 (1996) (citing Pildes & Niemi compactness factors as. supporting evidence for holding three Texas congressional districts unconstitutional).

In discussing the relative normalcy of various compactness measures, Pildes and Niemi suggest that a “low” dispersion compactness measure would be equal to or less than 0.15. Pildes & Niemi, at 564. They suggest that a “low” perimeter compactness measure is equal to or less than 0.05. Id. North Carolina’s Twelfth Congressional District under the 1997 Plan has a dispersion compactness indicator of 0.109 and a perimeter compactness indicator of 0.041. Webster, at table 3. These figures are much lower than the mean compactness indicators for North Carolina’s twelve congressional districts under the 1997 Plan. The average dispersion compactness indicator for the State is 0.354, and the average perimeter compactness indicator is 0.192. Id. The next lowest dispersion compactness indicator after District 12 is the 0.206 in the Fifth Congressional District, and the next lowest perimeter compactness indicator is the First Congressional District’s 0.107. Id.

Thus, it is clear that even after the changes detailed above, the primary characteristic of the Twelfth District is its “racial archipelago,” stretching, bending and weaving to pick up predominantly African-American regions while avoiding many closer and more obvious regions of high Democratic registration, but low African-American population.

II. The First Congressional District

District 1 is another predominantly Democratic district established by the 1997 Plan. Unlike District 12, it is a majority-minority district, based on percentages of the total population of the District,⁶ as 50.27 percent of its total population is African-American. Id., Vol. I Commentary at 10. District 1 is composed of ten of the 22 counties split in drawing the statewide 12 district 1997 Plan. Weber Dec. ¶ 16. Half of the twenty counties represented in District 1 are split. Id. Of the ten sub-divided counties assigned to District 1, four have parts with over 50 percent African-American population, four others have parts with over 40 percent African-American population, and two others have parts with over 30 percent African-American population. Id., ¶ 17.

In each of the ten counties that are split between District 1 and an adjacent district, the percent of the population that is African-American is higher inside the district than it is outside the district, but within the same county. Id., ¶ 19 and Table 2. The disparities are less significant than in the county splits involving District 12. Id., Table 2. For example, where Beaufort County is split between Districts 1 and 3, 37.7 percent of the total population of Beaufort County allocated to District 1 is African-American, while 22.9 percent of the total population of Beaufort County assigned to District 3 is African-American.

Similarly, nine of the 13 cities and towns split between District 1 and its neighboring districts are split along racial lines. Id., ¶ 22. For example, where the City of New Bern is split between District 1 and adjacent District 3, 48.27 percent of the population assigned to District 1 is African-American, while 24.49 percent of the New Bern population assigned to District 3 is African-American. McGee Aff., Ex. L.

Viewed on the North Carolina map, District 1 is not as irregular as District 12. In the North, it spans 151.2 miles across, from Roxboro, Person County, in the West, to Sunbury, Gates County, in the East. Affidavit of Dr. Alfred W. Stuart (“Stuart Aff.”), table 1. It is shaped roughly like the state of Florida, although the protrusion to the South from its “panhandle” is only approximately 150 miles long (to Goldsboro, Wayne County, with two irregularities jutting into Jones, Craven, and Beaufort Counties). Cooper Aff., attachment. These irregularities surround the peninsular extension of the Third Congressional District from the East, allowing the incumbent from the previous Third Congressional District to retain his residence within the boundaries of the same district, and avoiding placing two incumbents in District 1.

The “comparator compactness indicators” from District 1 are much closer to the North Carolina mean compactness indicators than are those from District 12. For example, District 1 has a dispersion compactness indicator of 0.317 and a perimeter compactness indicator of 0.107. Webster, at table 3. This dispersion compactness indicator is not significantly lower than the State’s mean indicator of 0.354, and is higher than the dispersion compactness indicators of Districts 12 (0.109), 9 (0.292), and 5 (0.206). Id. It may be noted that Districts 5 and 9 are next to, and necessarily shaped by, District 12. District 1 has a perimeter compactness indicator of 0.107, which is lower than North Carolina’s mean perimeter compactness indicator (0.192), but much higher than Pildes and Niemi’s suggested “low” perimeter compactness indicator (0.05). District l’s perimeter compactness indicator is also much higher than that of District 12 (0.041). Id.

DISCUSSION

I. Applicable Law and Standard of Review

The Equal Protection Clause of the United States Constitution provides that no State “shall deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const, amend. 14, § 1. The United States Supreme Court explained in Miller v. Johnson, 515 U.S. 900, 904, 115 S.Ct. 2475, 2482, 132 L.Ed.2d 762, that the central mandate of the Equal Protection Clause “is racial neutrality in governmental decisionmaking.” Application of this mandate clearly prohibits purposeful discrimination between individuals on the basis of race. Shaw v. Reno, 509 U.S. 630, 642, 113 S.Ct. 2816, 2824, 125 L.Ed.2d 511 (1993) (“Shaio I”) (citing Washington v. Davis, 426 U.S. 229, 239, 96 S.Ct. 2040, 2047, 48 L.Ed.2d 597 (1976)).

As the Supreme Court recognized, however, the use of this principle in “electoral districting is a most delicate task.” Miller, 515 U.S. at 905, 115 S.Ct. at 2483. Analysis of suspect districts must begin from the premise that “[l]aws that explicitly distinguish between individuals on racial grounds fall within the core of [the Equal Protection Clause’s] prohibition.” Shaw I, 509 U.S. at 642,113 S.Ct. at 2824. Beyond that, however, the Fourteenth Amendment’s prohibition “extends not just to explicit racial classifications,” Miller, 515 U.S. at 905, 115 S.Ct. at 2483, but also to laws, neutral on their face, but “unexplainable on grounds other than race,” Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 266, 97 S.Ct. 555, 564, 50 L.Ed.2d 450 (1977).

In challenging the constitutionality of a State’s districting plan, the “plaintiff bears the burden of proving the race-based motive and may do so either through ‘circumstantial evidence of a district’s shape and demographics’ or through ‘more direct evidence going to legislative purpose.’ ” Shaw II, 517 U.S. at 904, 116 S.Ct. at 1900 (quoting Miller, 515 U.S. at 916, 115 S.Ct. at 2488). In the final analysis, the plaintiff must show “that race was the predominant factor motivating the legislature’s decision to place a significant number of voters within or without a particular district.” Id. (quoting Miller, 515 U.S. at 916, 115 S.Ct. at 2488).

Once a plaintiff demonstrates by a preponderance of the evidence that race was the predominant factor in redistricting, the applicable standard of review of the new plan is “strict scrutiny.” Thus, in Miller the Supreme Court held that strict scrutiny applies when race is the “predominant” consideration in drawing the district lines such that “the legislature subordinate^] race-neutral districting principles' ... to racial considerations.” 515 U.S. at 916, 115 S.Ct. at 2488. Under this standard of review, a State may escape censure while drawing racial distinctions only if it is pursuing a “compelling state interest.” Shaw II, 517 U.S. at 908-09, 116 S.Ct. at 1902.

However, “the means chosen to ae-complish the State’s asserted purpose must be specifically and narrowly framed to accomplish that purpose.” Wygant v. Jackson Bd. of Ed., 476 U.S. 267, 280, 106 S.Ct. 1842, 1850, 90 L.Ed.2d 260 (1986) (opinion of Powell, J.). As the Supreme Court required in Shaw II, where a State’s plan has been found to be a racial gerrymander, that State must now “show not only that its redistricting plan was in pursuit of a compelling state interest, but also that its districting legislation is narrowly tailored to achieve that compelling interest.” 517 U.S. at 908-09, 116 S.Ct. at 1902.

We are cognizant of the principle that “redistricting and reapportioning legislative bodies is a legislative task which the federal courts should make every effort not to preempt.” Wise v. Lipscomb, 437 U.S. 535, 539, 98 S.Ct. 2493, 2497, 57 L.Ed.2d 411 (1978) (citations omitted). “A State should be given the opportunity to make its own redistricting decisions so long as that is practically possible and the State chooses to take the opportunity. When it does take the opportunity, the discretion of the federal court is limited except to the extent that the plan itself runs afoul of federal law.” Lawyer v. Dep’t of Justice, 521 U.S. 567, 577-78, 117 S.Ct. 2186, 2193, 138 _L.Ed.2d 669 (1997) (internal citations omitted).⁷ Thus, when the federal courts declare an apportionment scheme unconstitutional-as the Supreme Court did in Shaw II—it is appropriate, “whenever practicable, to afford a reasonable opportunity for the legislature to meet constitutional requirements by adopting a substitute measure rather than for the federal court to devise and order into effect its own plan. The new legislative plan, if forthcoming, will then be the governing law unless it, too, is challenged and found to violate the Constitution.” Wise, 437 U.S. at 540, 98 S.Ct. at 2497!'

II. The Twelfth Congressional District

As noted above, the final decision of the three-judge panel in Shaw only approved the 1997 Congressional Redistricting Plan “as an adequate remedy for the specific violation of the individual equal protection rights of those plaintiffs who successfully challenged the legislature’s creation of former District 12.” Shaw v. Hunt, No. 92-202-CIV-5-BR, at 8 (E.D.N.C. Sept. 12, 1997). This panel must thus decide whether the 1997 Plan’s Twelfth District violates the equal protection rights of the Plaintiffs who live within the district and challenge its constitutionality.

In holding that District 12 under the 1992 Plan was an unconstitutional racial gerrymander, the Supreme Court in Shaw II noted, “[n'lo one looking at District 12 could reasonably suggest that the district contains a ‘geographically compact’ population of any race.” 517 U.S. at 916-17, 116 S.Ct. at 1906. The Shatv II Court thus struck the old District 12 as unconstitutional as a matter of law. In redrawing North Carolina’s congressional districts in 1997 the General Assembly was, of course, aware that District 12 under the 1992 Plan had been declared unconstitutional; curing the constitutional deficiencies was one of the legislature’s declared goals for the redistricting process. Cooper Aff. ¶¶ 5, 8, 10,14.

Defendants now argue that the changes in District 12 between the 1992 and 1997 Plans are dramatic enough to cure it of its constitutional defects. They point to the fact that the new District 12 has lost nearly one-third (31.6 percent) of the population from the 1992 district and nearly three-fifths (58.4 percent) of the land. These numbers neither advance the Defendants’ argument nor end the Court’s inquiry: As Defendants themselves note, the Court’s role is limited to determining “whether the proffered remedial plan is legally unacceptable because it violates anew constitutional or statutory voting rights-that is, whether it fails to meet the same -standards applicable to an original challenge of a legislative plan in place.” McGhee v. Granville County, 860 F.2d 110, 115 (4th Cir.1988) (citing Upham v. Seamon, 456 U.S. 37, 42, 102 S.Ct. 1518, 1521, 71 L.Ed.2d 725 (1982)). A comparison of the 1992 District 12 and the present District is of limited value here. The issue in this case is whether District 12 in the 1997 Plan violates the equal protection rights of the voters residing within it.

In Shaw I, the Supreme Court described the 1992 Plan’s District 12 as “unusually shaped... approximately 160 miles long and, for much of its length, no wider than the [Interstate]-85 corridor. It winds in snake-like fashion through tobacco country, financial centers, and manufacturing areas until it gobbles in enough enclaves of black neighborhoods.” 509 U.S. at 635-636, 113 S.Ct. at 2820-2821 (internal quotations omitted). The 1997 Plan’s District 12 is similar: it is “unusually shaped,” it is “snake-like,” and it “gobbles in” African-American population centers. The evidence establishes that although its length has been shortened by approximately 65 miles, it still winds from Charlotte to Greensboro along the Interstate-85 corridor, detouring to envelop heavily African-American portions of cities such as States-ville, Salisbury, and Winston-Salem. It also connects communities not joined in a congressional district, other than in the unconstitutional 1992 Plan, since the whole of Western North Carolina was one district, nearly two hundred years ago.

As discussed above, where cities and counties are split between the Twelfth District and neighboring districts, the splits invariably occur along racial, rather than political, lines — the parts of the divided cities and counties having a higher proportion of African-Americans are always included in the Twelfth. Defendants argue that the Twelfth was drawn not with race, but rather politics and partisanship in mind. They have described the District as a “Democratic island in a Republican sea,” and presented expert evidence that political identification was the predominant factor determining the border of District 12. Affidavit of David W. Peterson (“Peterson Aff.”). As the uncontroverted evidence demonstrates, however, the legislators excluded many heavily-Democratic precincts from District 12, even when those precincts immediately border the Twelfth and would have established a far more compact district. The only clear thread woven throughout the districting process is that the border of the Twelfth district meanders to include nearly all of the precincts with African-American population proportions of over forty percent which lie between Charlotte and Greensboro, inclusive.

As noted above, objective measures of the compactness of District 12 under the 1997 Plan reveal that it is still the most geographically scattered of North Carolina’s congressional districts. When compared to other previously challenged and reconstituted congressional districts in North Carolina, Florida, Georgia, Illinois, and Texas, District 12 does not fare well. The District’s dispersion and perimeter compactness indicators (0.109 and 0.041, respectively) are lower than those values for North Carolina’s District 1 (0.317 and 0.107 under the 1997 Plan). Similarly, the District suffers in comparison to Florida’s District 3 (0.136 and 0.05), Georgia’s District 2 (0.541 and 0.411) and District 11 (0.444 and 0.259), Illinois’ District 4 (0.193 and 0.026), and Texas District 18 (0.335 and 0.151), District 29 (0.384 and 0.178), and District 30 (0.383 and 0.180).

Additionally, Plaintiffs’ expert, Dr. Weber, showed time and again how race trumped party affiliation in the construction of the 12th District and how political explanations utterly failed to explain the composition of the district. (Trial Transcript at 162-3, 204-5, 221, 251, 262, 288). Of particular note is Dr. Weber’s contention that a much more compact, solidly Democratic 12th District could have been created had race not predominated over traditional political considerations in the redistricting process. (Trial Transcript at 220-1) Additionally, Dr. Weber showed that, without fail, Democratic districts adjacent to District 12 yielded their minority areas to that district, retaining white Democratic precincts. (Trial Transcript at 255-6). This testimony served to undermine Defendants’ contention that race was merely a factor in creating the 1997 Plan’s 12th District, and that a desire to place high-performance Democratic areas (which happen to contain minority populations) within Democratic districts could explain the construction of the 12th.

The conclusion that race predominated was further bolstered by Senator Cooper’s allusion to a need for “racial and partisan balance,” cited above. The senator’s contention that although he used the term “partisan balance” to refer to the maintenance of a six-six Democrat-Republican split in the congressional delegation, he did not mean the term “racial balance” to refer to the maintenance of a ten-two balance between whites and African Americans is simply not credible. (Trial Transcript at 429-30)

Dr. Weber, who has testified as an expert in redistricting cases in Louisiana, Texas, Georgia, Virginia and Florida, also presented a convincing critique of the methodology used by Defendants’ expert witness, Dr. Peterson. (Trial Transcript at 145) Dr. Weber characterized Dr. Peterson’s boundary segment analysis as nontraditional, creating “erroneous” results by “ignoring the core” of each district in question. (Trial Transcript at 222-4) In summary, Dr. Weber found that Dr. Peterson’s analysis and report “has not been appropriately done,” and was therefore “unreliable” and not relevant. (Trial Transcript at 232)

Finally, the Cooper-Cohen email, discussed above, clearly demonstrates that the chief architects of the 1997 Plan had evolved a methodology for segregating voters by race, and that they had applied this method to the 12th District. The Cooper-Cohen email refers specifically to the categorization of sections of Greensboro as “Black,” and a scheme by which this section was added to the 12th District, creating a need to “take about 60,000” other citizens out. (Exhibit 58) It is also relevant as evidence of the means by which the 1997 Plan’s racial gerrymandering could be achieved with scientific precision, as the precise racial composition of another district (the First) is discussed at length, along with plans to “improve” that district by “boosting] the minority percentage.” (Exhibit 58)

The computer system used by the state has the capacity to identify and apportion voters based on race, and to determine the exact racial make-up of each district. The Cohen-Cooper email reveals that exact racial percentages were used when constructing districts.⁸ Given that the Supreme Court struck down the 1992 Plan’s 12th District, the clear inference here is that a motive existed to compose a new 12th District with just under a majority minority in order for it not to present a prima facie racial gerrymander. In fact, Senator Cooper argued before the legislature that the Shaw test for constitutionality would not be triggered because the 12th District was not a majority minority district. (Trial Transcript at 440-1) But using a computer to achieve a district that is just under 50% minority is no less a predominant use of race than using it to achieve a district that is just over 50% minority.

Based on the extensive direct and circumstantial evidence presented at trial, the Court finds as a matter of fact that the General Assembly, in redistricting, used criteria with respect to the Twelfth District that are facially race driven. It is clear that the Twelfth District was drawn to collect precincts with high racial identification rather than political identification. Additionally, the evidence demonstrates that precincts with higher partisan representation (that is, more heavily Democratic precincts) were bypassed in the drawing of District 12 in favor of precincts with a higher African-American population. The legislature eschewed traditional districting criteria such as contiguity, geographical integrity, community of interest, and compactness in redrawing the District as part of the 1997 Plan. Instead, the General Assembly utilized race as the predominant factor in drawing the District.⁹

This Court finds that, in contrast to the state’s claims regarding the 1st District, no evidence of a compelling state interest in utilizing race to create the new 12th District has been presented. Further, even if such an interest did exist, the 12th District is not narrowly tailored and therefore can-. not survive the prescribed “strict scrutiny.” The 1997 Plan’s District 12 is an impermissible and unconstitutional racial gerrymander in violation of the Equal Protection Clause.

To remedy these constitutional deficiencies, the North Carolina legislature must redistrict the 1997 Plan in such a way that it avoids the deprivation of the voters’ equal protection rights not to be classified on the basis of race. This mandate of the Court leaves the General Assembly free to use other, proper factors in redistricting the 1997 Plan. The legislature may consider traditional districting criteria, such as incumbency considerations, to the extent consistent with curing the constitutional defects. See Shaw II, 517 U.S. at 906-07, 116 S.Ct. at 1901 (describing “race-neutral, traditional districting criteria”).¹⁰

III. First Congressional District

The three-judge panel in Shaw never ruled on the constitutionality of the 1992 Plan’s First Congressional District. Standing problems on the part of the Shaw plaintiffs forced that court to narrow its focus to adjudicate only the issues raised regarding the Twelfth District. A comparison of the First and Twelfth Districts under the 1992 Plan reveals, however, that they are similarly egregious in then* construction and that the First District would certainly have been subject to the same finding that it was not narrowly tailored. Both were majority-minority districts under the 1992 Plan, and neither evidenced even minimal geographical compactness.

The 1997 Plan’s First District, once again presents this Court with a majority-minority district, this time containing a population that is 50.27 percent African-American, as opposed to the Twelfth District’s 46.67 percent. The First District is, however, far more compact than the Twelfth and its shape is less irregular, as we have seen above.

This Court finds as a matter of fact that, under the 1992 Plan, the First District was not narrowly tailored and therefore that district was in violation of the Constitution. The evidence presented by the Defendants does not dispute this finding.

The statements of several key players in the 1997 redistricting process clearly show that, in an effort to gain pre-clearance under the Section 2 of the Voting Rights Act, 42 U.S.C. § 1973, they allowed race to predominate in the creation of the 1st District. The' Cohen-Cooper email is one such clear example, specifically referencing the desire to “boost the minority percentage in the first district” to create an “improved” district. The email exposes a process in which voters were categorized by race, then shifted in and out of the 1st District by a computer program until a precise percentage of minority voters in the district was achieved. No other credible explanation has been offered.

The fact that race predominated in the construction of the 1st District is not surprising. The legislators faced the difficult task of remedying the unconstitutional aspects of the 1992 Plan’s 1st District while complying with the mandates of the Voting Rights Act, discussed below. Indeed, Senator Cooper acknowledged that he felt he had to have over 50% minority representation in the First District. (Trial Transcript at 440) This admission reveals that the racial composition of the district was seen as a mandate, a necessity.

Thus, we further find that, in its 1997 Plan, the State continued to use race as the predominant factor in creating the majority-minority First District, and thus strict scrutiny must apply. This does not end our inquiry, however. Defendants may show that the district was narrowly tailored to achieve a compelling government interest.

Section 2 of the Voting Rights Act provides that “no voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State ... in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color, ....” 42 U.S.C. § 1973(a)(1988). Congress instructed the courts, when determining whether a voting standard, practice, or procedure violates this prohibition, to examine “the totality of the circumstances” to ascertain whether “the political processes leading to nomination or election” are equally open to citizens of all races. Id. § 1973(b). Courts may also consider “[t]he extent to which members of a protected class have been elected to office,” but the Act expressly states it does not establish “a right to have members of a protected class elected in numbers equal to their proportion in the population.” Id.

In Thornburg v. Gingles, the Supreme Court first examined the 1982 amendments to the Act. 478 U.S. 30, 34, 106 S.Ct. 2752, 2758, 92 L.Ed.2d 25 (1986). The Court found that the 1982 amendments no longer required a showing of intentional discrimination in order to prove a violation of the Act. Id. at 35, 106 S.Ct. at 2758. The Court identified the following “necessary preconditions” to a § 2 claim:

“First, the minority group must be able to demonstrate that it is sufficiently large and geographically compact to constitute a majority in a single-member district.... Second, the minority group must be able to show that it is politically cohesive.... Third, the minority must be able to demonstrate that the white majority votes sufficiently as a bloc to enable it—in the absence of special circumstances, such as the minority candidate running unopposed—usually to defeat the minority’s preferred candidate.” Gingles, 478 U.S. at 50-51, 106 S.Ct. at 2766-67 (footnotes and internal citations omitted). Once these preconditions are met, a court must consider the factors identified in the Senate Report accompanying the 1982 amendments. Id. at 48, 106 S.Ct. at 2765.¹¹

Defendants presented evidence at trial to show that there was a strong basis for the General Assembly to have believed, at the time of the 1997 Plan’s drafting, that the three Gingles preconditions and several of the factors set forth in the Senate Report existed in North Carolina. Specifically, the Defendants presented evidence that the African-American population in the area encompassed by District 1 was and is sufficiently large and geographically compact to constitute a majority in a congressional district. Additionally, Defendants contend, and Plaintiffs have stipulated for the purposes of this trial, that the African-American population is politically cohesive. Further, Defendants contend, and Plaintiffs have stipulated for the purposes of this trial, that the white majority votes sufficiently as a block to often enable it to defeat the minority’s preferred candidate. Finally, all parties agree that, for many decades, African-Americans in North Carolina were victims of racial discrimination, and that a substantial majority of the State’s African-American population is still at a disadvantage in comparison to white citizens with respect to income, housing, education and health.

This Court finds that Defendants have presented sufficient evidence to establish that the State Legislature of North Carolina did have a compelling reason to address race in the construction of the First District under the 1997 Plan. That compelling reason was the need to satisfy Section 2 of the Voting Rights Act in order to ensure that the State’s African-American population have equal access to the political process.

Further, this Court finds that the specific composition of the First District’s borders, while predominated by race, was narrowly tailored to meet the Section 2 requirements while also addressing other traditional, political considerations, including the desire to protect incumbency, both of a Democrat in the First District and a Republican in the Third District. The splitting of counties and lack of compactness display the interplay between these considerations: the borders were drawn to avoid putting two incumbents in a single district; the State Legisláture intended to exclude as much of the First State Senatorial District from the 1997 Plan’s 1st District as possible, resulting in modifications that forced the district’s borders south and west. While race predominated, the legislature resisted the temptation to create a district reminiscent of the 1992 Plan’s 1st District, which reflected little or no effort to achieve a narrow tailoring.

Thus, this Court finds that the 1997 Plan’s 1st District meets the requisite standard of strict scrutiny. Race, while the predominant factor in its composition, was not impermissibly used in establishing its borders. There was a compelling state interest in obtaining pre-clearance under Section 2 of the Voting Rights Act, and the 1st District was narrowly tailored to meet this interest. Thus we find that the 1997 Plan’s 1st District does not present an unconstitutional racial gerrymander.

CONCLUSION

For the reasons discussed above, this Court finds that the 1997 Plan’s Twelfth District continues to be unconstitutional as presented. Defendants are enjoined from using the unconstitutional District 12 in future elections. The 1997 Plan’s First District does not violate the Constitution and may thus be used in future elections. Defendants will have an opportunity to correct the constitutional defects in the 1997 Congressional Redistricting Plan stemming from the 12th District, in default of which the Court must undertake the task.

SO ORDERED.

CONCURRENCE AND DISSENT

1 . In its final Memorandum Opinion the three-judge panel in Shaw noted that there was "no substantive challenge to the [1997] plan by any party to this action,” and closed by explicitly "noting the limited basis of the approval of the plan that we are empowered to give in the context of this litigation. It is limited by the dimensions of this civil action as that is defined by the parties and the claims properly before us. Here, that means that we only approve the plan as an adequate remedy for the specific violation of the individual equal protection rights of those plaintiffs who successfully challenged the legislature's creation of former District 12. Our approval thus does not — -cannot—run beyond the plan's remedial adequacy with respect to those parties and the equal protection violation found as to former District 12.” Shaw v. Hunt, No. 92-202-CIV-5-BR, at 8 (E.D.N.C. Sept. 12, 1997).

2 . The Twelfth is not a majority-minority district as measured by any of three possible criteria. African-Americans constitute 47 percent of the total population of District 12, 43 percent of the voting age population of the District, and 46 percent of the registered voters in the District. Peterson Aff., at 8.

3 . An equitably populated congressional district in North Carolina needs a total population of about 552,386 persons using 1990 Census data. Weber Dec. ¶ 39.

4 . “Dispersion compactness” measures the geographic "dispersion” of a district. To calculate this a circle is circumscribed around a district. The reported coefficient is the pro- ' portion of the area of the circumscribed circle which is also included in the district. This measure ranges from 1.0 (most compact) to 0.0 (least compact). Webster, at 14.

5 . "Perimeter compactness" is based upon the calculation of the district’s perimeter. The reported coefficient is the proportion of the area in the district relative to a circle with the same perimeter. This measure ranges from 1.0 (most compact) to 0.0 (least compact). Webster, at 14. The equation used here is (((4 x II) x Area of district) (District’s Perimeter!)). Webster, at table 3.

6 .While 50.27 percent of the total population of District 1 is African-American, only 46.54 percent of the voting age population is African-American, based on the 1990 census data. Bartlett Aff., Vol. I Commentary at 10.

7 . The dissent charges that we “ignore! ] the principles of federalism which require federal courts to exercise restraint," and alludes to the dangers of "judicial activism.” This is a disturbing accusation, as a federal court cannot shrink away from the enforcement of the United States Constitution and federal law. The standard of equal protection under law established in the latter half of the 20th century is the direct result of federal courts’ defense of constitutional principles in the face of state resistance. We would point our distinguished colleague to the words of the late Judge Frank Johnson:

It must be emphasized that, when governmental institutions fail to make ... judgment and decisions in a manner which comports with the constitution, federal courts have a duty to remedy the violation. In summary, it is my belief that the judicial activism which has generated so much criticism is, in most cases, not activism at all. Courts do not relish making such hard decisions and certainly do not encourage litigation on social and political problems.

But the federal judiciary in this country has the paramount and the continuing duty to uphold the law. When a "case or controversy” is properly presented, the court may not shirk its sworn responsibility to uphold the Constitution and laws of the United States. The courts are bound to take jurisdiction and decide the issues, even though those decisions result in criticism. The basic strength of the federal judiciary has been, and continues to be, its independence from political and social pressures. Frank M. Johnson, Jr., Judicial Activism is a Duty-Mot an Intrusion, VIEWS FROM THE BENCH: THE JUDICIARY AND CONSTITUTIONAL POLITICS 279, 283-4 (1985).

8 . Senator Cooper claimed that the final percentage composition of District 12 was sheer happenstance. (Trial Transcript at 427-8) The explicit discussion of precise percentages in ihe email belies this characterization.

9 . The Supreme Court has indicated that, when drawing congressional districts, race may not be used as a proxy for political characteristics. Bush v. Vera, 517 U.S. 952, 967-68, 116 S.Ct. 1941, 1956, 135 L.Ed.2d 248 (1996).

10 . Our distinguished colleague’s dissent treats the standing of Plaintiff Linville at some length Defendants moved to dismiss him from the instant suit, arguing that he did not live within the 1997 Plan's 12th District. This motion was denied at trial. Trial Transcript at 327. As there is standing on behalf of a plaintiff or plaintiffs with respect to each of the challenged districts, Plaintiff Linville’s standing is moot as to this Court’s ability to reach a decision in the instant case. Thus, we decline to elaborate on the standing issue.

11 . Those factors are: (1) the extent of any history of official discrimination in the state or political subdivision that touched the right of the members of the minority group to register, to vote, or otherwise to participate in the democratic process; (2) the extent to which voting in the elections of the state or political subdivision is racially polarized; (3) the extent to which the state or political subdivision has used unusually large election districts, majority vote requirements, anti-single shot provisions, or other voting practices or procedures that may enhance the opportunity for discrimination against the minority group; (4) if there is a candidate slating process, whether the members of the minority group have been denied access to that process; (5) the extent to which members of the minority group in the state or political subdivision bear the effects of discrimination in such areas as education, employment and health, which hinder their ability to participate effectively in the political process; (6) whether political campaigns have been characterized by overt or subtle racial appeals; (7) the extent to which members of the minority group have been elected to public office in the jurisdiction. Sen.Rep. No. 417, 97th Cong., 2d Sess. 28-29 (1982), reprinted in 1982 U.S.C.C.A.N. 177, 206-07. This list of factors, however, "is neither comprehensive nor exclusive.” Gin-gles, 478 U.S. at 45, 106 S.Ct. at 2763.