Jeffers v. Clinton

730 F. Supp. 196, 1989 WL 165247

Opinions

ARNOLD, Circuit Judge.

Footnotes

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In 1981 the Arkansas Board of Apportionment, consisting of the then Governor, Secretary of State, and Attorney General, placed into effect a plan of apportionment for the General Assembly. Seventeen black electors ¹ bring this suit, claiming the plan violates Section 2 of the Voting Rights Act of 1965, as amended, 42 U.S.C. § 1973 et seq., and the Fourteenth and Fifteenth Amendments to the Constitution of the United States. They ask us to hold the existing arrangement of Senate and House districts unlawful, order a new plan into effect for the 1990 elections, and place the State of Arkansas under the preclearance procedure laid out in Section 3(c) of the Voting Rights Act, 42 U.S.C. § 1973a(c).

We heard evidence for twelve days. Numerous exhibits are before us. We have carefully considered the proof with due regard to the intensely practical nature of the political process. We now hold that the plaintiffs have demonstrated a violation of their rights under federal law. The 1981 apportionment plan created only five legislative positions, one in the Senate and four in the House, representing districts in which a majority of the voting-age population was black. We find that a total of 16 such districts, three in the Senate and 13 ² in the House, could have been created, and that these districts would have been reasonably contiguous and compact. We further find that voting in the areas of the State in question is markedly polarized by race. Both black and white voters usually prefer candidates of their own race. Black voters are far from powerless. They exercise significant, sometimes decisive influence. But they can elect a candidate of their choice, in a district in which the voting-age population is majority white, only if that candidate is white. For the foreseeable future, the present location of legislative district lines will make it very difficult to elect more than six black legislators, out of a total in both houses of 135 members. And this is so even though black people make up about 16 per cent, of the total population of the State of Arkansas.

In this situation, black citizens have less opportunity than other members of the electorate to elect representatives of their choice. This is a violation of Section 2(b) of the Voting Rights Act, 42 U.S.C. § 1973(b). For reasons we shall explain in this opinion, plaintiffs have proved a violation of the law in all of the areas of the State called in question by this suit, except for Pulaski County. We hold that no more elections may be held under the unlawful 1981 apportionment plan. The defendants will be enjoined from giving any further force or effect to that plan. A new, lawful plan must be drafted, in time to be in place for next year’s elections; the filing period for these elections will begin on the third Tuesday in March — March 20, 1990. See Ark. Code Ann. § 7-7-203(c) (1987). The parties are directed to submit plans for compliance to this Court on or before January 15,1990. We especially emphasize the duty of the defendants, the present members of the Board of Apportionment, to submit a plan. The responsibility of complying with the law is primarily theirs. Promptly after January 15, 1990, we will convene an evi-dentiary hearing on the remedy, if necessary, and thereafter enter an order embodying a new plan and directing that it be used for the 1990 legislative elections.

The opinion we file today decides only plaintiffs’ statutory claim under Section 2 of the Voting Rights Act. Plaintiffs’ constitutional claim and their request for pre-clearance as a remedy for constitutional violations remain under advisement. We will decide these questions in a second written opinion in due course. Our ruling on the statutory claim will require substantial adjustments in the existing apportionment plan. If relief is to be effective for next year’s elections, time is of the essence. We therefore think it proper to file this opinion, which will start the process of re-drawing the lines, promptly. We need time, however, to consider the hard issues of intent and remedy that plaintiffs’ constitutional claim raises, and we do not wish to delay the whole case while we take that time.

I.

The Board of Apportionment is created by Article VIII, Section 1 of the Constitution of Arkansas. Its present members are Governor Bill Clinton, Secretary of State Bill McCuen, and Attorney General Steve Clark. They are defendants in this case. The Board’s members in 1981 were Governor Frank White, Secretary of State Paul Riviere, and Attorney General Clark. The plan presently in effect (except as modified as to Crittenden County by Smith v. Clinton, supra) was adopted on June 28, 1981, by a vote of two to one. Governor White dissented. The plan created 35 single-member districts for the Senate. Of the 100 members of the House, the plan called for 74 to be elected from single-member districts and 26 from multi-member districts.³ (We note, parenthetically, that only two of the multi-member districts in the House are in the area of the State towards which this suit is primarily addressed: the two-member district in Crittenden County, which no longer exists because of Smith, and a three-member district in Pulaski County. This three-member district has a majority-black voting-age population, and all three of its State Representatives are black. This lawsuit, however, is not primarily about single-member versus multi-member districts. It is about dilution of black voting strength. We see no reason why the multi-member districts in other parts of the State would be affected by the relief we are granting.)

Under the plan adopted in 1981, only two House districts had a voting-age population that was majority black — one of the three-member districts in Pulaski County and a single-member district in Jefferson County. (We use voting-age-population (VAP) percentages because they are the numbers relevant for purposes of voting, which is what this case is about. Under the one-person, one-vote principle, of course, which requires that legislative districts be substantially equal⁴ in population, it is total population that counts, regardless of age or eligibility to vote. But this case is about effective use of the elective franchise, not equality of population. Black VAP numbers run consistently lower than total-population numbers in the areas affected by this suit.) We insert at this point in the opinion a map of Arkansas (Map 1) showing each of the House districts in the affected areas, including black VAPs for districts located along the Mississippi River (an area referred to as the Delta).

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The shaded areas indicate concentrations of black population. It is important to note that although these districts are located in the area of the State containing the greatest concentration of black people, none of them, as the 1981 plan was drawn, had a majority-black VAP. The Senate plan follows the same pattern. Of the 35 single-member Senate districts, only one has a majority-black VAP. We insert at this point Map 2, which shows the Senate districts. No black person has ever been elected to the State Legislature (in this century, anyway) from a district that did not have a majority-black VAP.

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II.

Before we get to the substance of the case, we must deal with defendants’ argument that the suit is barred by laches,⁵ that it was filed too late. The apportionment plan challenged was adopted in 1981, but suit was not filed until January 22, 1989. Only one election, that of 1990, re mains to be run before the State must be reapportioned anyway, because of the 1990 Census. So this case, defendants say, should be dismissed. If plaintiffs are still unhappy after the 1991 reapportionment, they can file suit then. This Court rejected a similar contention in Smith v. Clinton, 687 F.Supp. at 1312-13. But defendants earnestly press the argument and claim that Smith can be distinguished. We therefore address the point at some length.

Laches is an equitable defense. It means essentially this: if suit is unreasonably delayed, and this delay causes prejudice to the defendants, a court of equity may dismiss the complaint. The greater the delay, or the more unreasonable, the less prejudice need be shown; and vice versa. The Court must weigh the facts and interests on both sides, summon up the discretion of a chancellor, remember that it is a court of conscience and not of legal stricture, and come as close as it can to a fair result. Frequently there are some good arguments on both sides, and that is the case here. We start by quoting our discussion of the issue in Smith v. Clinton:

First, the injury alleged by the plaintiffs is continuing, suffered anew each time a State Representative election is held under the [illegal] structure. Second, there have been significant developments since the 1981 Arkansas reapportionment. The Voting Rights Act was amended in 1982, and the Supreme Court’s interpretation of the statute in Thornburg v. Gingles, 478 U.S. 30, 106 S.Ct. 2752, 92 L.Ed.2d 25 (1986), lays down a rather uncompromising structure for the application of the law in vote-dilution cases. Third, we note that the plaintiffs are required to prove that, as a result of the challenged structure, a white majority bloc is usually able to defeat the preferred candidates of the minority. Of course, evidence of this circumstance would be unavailable unless the structure had been in place for some time.

687 F.Supp. at 1313.

All of these factors are present here, but defendants claim Smith was different. See Defendants’ Post-Trial Brief, 2 n. 1. There, we dealt only with the dilutive effect of one two-member district. The relief affected only that district. There was no ripple effect. No other district’s boundaries were disturbed. See Smith, 687 F.Supp. at 1313 n. 4. But here there would be some ripple effect. Plaintiffs claim that there should be as many as 16 (13 in the House, 3 in the Senate) majority-black districts. Relief cannot be accomplished simply by dividing up one or more existing multi-member districts. If the single-member districts requested, or any of them, are created, the boundaries of some adjacent districts will necessarily shift to some extent. Plaintiffs assert that the ripple effect will be confined to 26 of the State’s 75 counties, all of them south and east of a diagonal line roughly splitting the State from northeast to southwest, but even as so limited the necessary changes would be substantially greater than those occasioned by Smith.

With this argument in mind, we compare plaintiffs’ delay to defendants’ prejudice. It is reasonable to start the clock running on June 30, 1986, when the Supreme Court handed down Thornburg v. Gingles, 478 U.S. 30, 106 S.Ct. 2752, 92 L.Ed.2d 25 (1986). This case is the pole star of the law in this area. Only with this decision can the law be said to have jelled. The present plaintiffs moved for leave to intervene in Smith v. Clinton on June 1,1988, less than two years later. This motion was denied on July 1, 1988. The order denying the motion suggested plaintiffs could bring a separate suit, which they did about six months later. Suit was filed about 14 months before the filing deadline for the 1990 elections. (Compare Smith, 687 F.Supp. at 1312, in which candidates had filed and begun to campaign in the challenged district at the time of the hearing on plaintiffs’ motion for preliminary injunction.) This sort of case takes an enormous amount of preparation, and it is to plaintiffs’ credit that they took time to prepare it thoroughly before coming to court. This sequence of events does contain some delay, but most if not all of it was reasonable.

What about prejudice to defendants? As noted, the expense, trouble, and disruption of compliance (assuming, as we must at this stage of the analysis, that the complaint has some merit) will be substantial, and more so than in Smith. But the expense, trouble, and disruption are not a consequence of plaintiffs’ delay in filing. They would have occurred whenever the suit was filed—even if it had been filed, say, right after passage of the 1982 amendments to the Voting Rights Act. There is some additional increment of public confusion that will be caused by changing district lines less than two months before filing opens, and less than four months before the first primary election. It is also true that the census data relied on by both sides—and that presumably will be the basis of any remedial plan—become increasingly stale as time passes after the 1980 census. But it is by no means clear that these data, however inaccurate they may become in terms of absolute numbers, will also be inaccurate in relative terms. On the contrary, what evidence we have on the subject indicates that, although population as a whole has declined in the affected areas of the State, the proportions of blacks and whites have remained virtually constant. See Testimony of Dr. Engstrom, Dr. Morrison, Senator Benham, Representative McGinnis, and Representative Cunningham. And in any event the staleness of the 1980 census data cannot be escaped. For even under defendants’ theory, which is that the case should be dismissed, the 1990 elections will be run in districts based on 1980 census data. The true comparison is between out-of-date districts that (by hypothesis) dilute the black vote, and out-of-date districts that do not.

The question is essentially one of judgment and degree. Logic cannot absolutely exclude either answer. In our judgment, the defense of laches must fail. In part, the expense and disruption that will undeniably occur are nothing but a consequence of the wrong that has been done. The illegality, the injury, extend beyond a single district, and so the remedy that must be applied will necessarily be more trouble than it was in Smith. To the extent that electoral confusion and disruption exceed what they would have been if the case had been filed earlier, we think that fairness and equal opportunity in voting are worth it. We will not say to these plaintiffs, “Wait for another census. The time is not yet ripe.” They have heard these words too many times in the past.

III.

We turn now to the merits of plaintiffs’ Section 2 claim. As amended in 1982, the statute now reads as follows:

§ 1973. Denial or abridgement of right to vote on account of race or color through voting qualifications or prerequisites; establishment of violation

(a) No voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision 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, or in contravention of the guarantees set forth in section 1973b(f)(2) of this title, as provided in subsection (b) of this section.

(b) A violation of subsection (a) of this section is established if, based on the totality of circumstances, it is shown that the political processes leading to nomination or election in the State or political subdivision are not equally open to participation by members of a class of citizens protected by subsection (a) of this section in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice. The extent to which members of a protected class have been elected to office in the State or political subdivision is one circumstance which may be considered: Provided, That nothing in this section establishes a right to have members of a protected class elected in numbers equal to their proportion in the population.

The statute embodies a “results” test. A voting practice or procedure (like an apportionment plan) violates the law if it results in denial or abridgement of the right to vote on account of race or color. The law focuses on effects, not purpose or motivation. Subsection (b) adds a further direction to the courts: we are to consider “the totality of circumstances,” which is lawyer’s language for “all the facts,” and decide whether members of a protected class “have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.”

A.

At the outset, defendants make two legal arguments that would bar the action altogether if successful. First, they say that under the plain language of Section 2(b) plaintiffs must show two separate things: (1) that they have less opportunity to participate in the political process; and (2) that they have less opportunity to elect representatives of their choice. Even if they have shown the second, the argument runs, they cannot win this case, because they cannot make the first showing. There are no presently existing legal barriers to voting by black citizens in Arkansas, and therefore they have just as much opportunity to participate in the political process as anyone else.

This argument fails to reckon with the present effects of past racial discrimination, much of it official and governmental. In Smith v. Clinton, we made the following findings:

(1) The Court takes judicial notice that there is a history of racial discrimination in the electoral process in Arkansas. See Perkins v. City of West Helena, 675 F.2d 201, 211 (8th Cir.), aff'd mem., 459 U.S. 801, 103 S.Ct. 33, 74 L.Ed.2d 47 (1982). We do not believe that this history of discrimination, which affects the exercise of the right to vote in all elections under state law, must be proved anew in each case under the Voting Rights Act.

(2) We further find that the history of discrimination has adversely affected opportunities for black citizens in health, education, and employment. The hangover from this history necessarily inhibits full participation in the political process.

687 F.Supp. at 1317 (footnote omitted). By order entered on October 2, 1989, the first day of the trial in this ease, we made the same findings.

Moreover, the argument fails purely as a logical and linguistic matter. Even if plaintiffs failed to show less opportunity to participate in the political process, a showing that they have less opportunity to elect candidates of their choice would suffice to establish their claim. The right protected is the aggregate of these opportunities— the right to effective participation in the political system: “[t]he essence of a § 2 claim is that a certain electoral law, practice, or structure interacts with social and historical conditions to cause an inequality in the opportunities enjoyed by the black and white voters to elect their preferred representatives.” Thornburg, 478 U.S. at 47, 106 S.Ct. at 2764. An example from a less exalted field of human endeavor will illustrate the point. Suppose you say that I have less ability to chip and putt than you do. If I am just as good a chipper as you are, but not so good at putting, this statement, as a matter of ordinary speech, is still a true one. It is a combination of qualities (play around the green) that we are discussing, and the comparison is between our respective totals or aggregates of these qualities. So in the context of Section 2: it is a combination of abilities (abilities to use the elective franchise) that we are comparing. If I can vote at will but never elect anyone, my political ability is less than yours. Elections, and winning them, are the whole point of voting. This is, at any rate, one reading of the statute that is grammatically available, and the statute should be construed liberally in favor of its object, which is to open up the electoral process to full participation.

Second, defendants also argue that Section 2 just doesn’t apply at all to cases involving single-member districts. Both Thornburg and Smith, they say, were mul-ti-member district cases. Single-member districts submerge no one. The majority wins, but that’s inherent in any democratic system. We disagree with this reading of the law. Nothing in the words of the stat ute supports it. Section 2 says nothing about any kind of districts. It is directed against certain described effects, regardless of the form of the political device or mechanism that produces them. Thorn-burg, to be sure, is a multi-member district case (in the Supreme Court, that is),⁶ but it implies that a particular configuration of single-member districts can give rise to a vote-dilution claim, see 478 U.S. at 50 n. 16, 106 S.Ct. at 2766 n. 16, and in principle there is no reason why this should not be so. Accord, Neal v. Coleburn, 689 F.Supp. 1426 (E.D.Ya.1988) (county single-member districts dilute black voting strength in violation of Section 2). Defendants cite Butts v. City of New York, 779 F.2d 141, 148 (2d Cir.1985), a pre-Thomburg opinion, for the proposition that vote-dilution claims won’t lie with respect to single-member districts, but we do not so read the case. It holds that a particular device—the requirement of a run-off if no candidate gets 40% of the vote—does not violate Section 2 in a particular electoral unit choosing a single official. It does not hold that unlawful dilution is impossible when a multi-member body’s members are chosen from single-member districts that have been drawn in such a way as to split a certain class of voters among different districts.

We agree that Thornburg and Smith cannot be automatically applied to the single-member context. Dilution may be much more obvious in a case like Smith, where a potential majority of black voters was submerged in a two-member district. But the basic principle is the same. If lines are drawn that limit the number of majority-black single-member districts, and reasonably compact and contiguous majority-black districts could have been drawn, and if racial cohesiveness in voting is so great that, as a practical matter, black voters’ preferences for black candidates are frustrated by this system of apportionment, the outlines of a Section 2 theory are made out. Whether such a claim will succeed depends on the particular factual context, including all of the factors that Thornburg, Smith, and the legislative history of Section 2 say are relevant.

B.

We first address the major Thorn-burg factors, factors that must be present if the predicate of a vote-dilution claim is to be laid. In evaluating a Section 2 claim, the Court must first determine whether three preconditions to a legally substantial impairment of plaintiffs’ ability to elect the candidates of their choice have been met. First, the claimant minority must establish that it is sufficiently large and geographically compact to constitute a majority.in a single-member district. Second, the plaintiffs must show that the group to which they belong is politically cohesive. Thorn-burg, 478 U.S. at 50-51, 106 S.Ct. at 2766-67. Third, the minority voters must show that the “majority votes sufficiently as a block to enable it—in the absence of special circumstances, such as a minority candidate running unopposed ... to defeat the minority’s preferred candidate.” Id. at 51, 106 S.Ct. at 2766 (footnote omitted). The latter two factors can be shown by proving that voting in the jurisdiction is highly racially polarized. Ibid. Accord, Smith, 687 F.Supp. at 1314-1315.

In the first place, we find that black communities in the areas of the State challenged by plaintiffs are sufficiently large and geographically compact to constitute a majority in single-member districts. This finding is based primarily on the testimony of plaintiffs’ expert, Jerry Wilson. As already noted, this testimony, taken together with the details set out in Mr. Wilson’s report, PX 5, establishes that the Board of Apportionment could have drawn, in 1981, thirteen majority-black House districts and three majority-black Senate districts. These districts could have been drawn in the areas of the State which are the focus of this suit. For the convenience of the reader, we insert at this point in the opinion Maps 3 and 4, showing Mr. Wilson’s alternative districts for the House and Senate, respectively.⁷

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As the maps indicate, some of the districts look rather strange, but we do not believe this is fatal to plaintiffs’ position. Their alternative districts are not materially stranger in shape than at least some of the districts contained in the present apportionment plan. The one-person, one-vote rule inevitably requires that county lines and natural barriers be crossed in some instances, and that cities and other political and geographic units be split in others. Defendants question the compactness and contiguity of plaintiffs’ alternative districts, but, with perhaps one exception, all of these questions have been resolved to our satisfaction. Initially, defendants took the position that some of the alternative districts put forward by plaintiffs contained “islands,” that is, areas completely surrounded by the alternative district, but not part of it. This criticism, in particular, was leveled against alternative House districts 1, which includes part of the City of Marianna, 11, which includes part of the City of Magnolia, and 10, which includes part of the City of McGehee. An examination of the exhibits and study of the testimony of the opposing experts satisfy us that there are in fact no islands in House districts 1 and 11, as put forward by plaintiffs. We are not sure that we completely understand the geographical situation with respect to hypothetical district 10, but even if there is an island within this district, the problem can be easily cured simply by cutting off the “finger” referred to in Mr. Wilson's rebuttal testimony. See PX 91, 92. If this change is made, the problem of insularity clearly disappears, and does so without violating the one-person, one-vote rule, and without deviating from the goal of creating a majority-black district. We note, incidentally, that the existing apportionment plan indisputably contains islands — Senate district 27, for example, wholly surrounds Senate district 28.

We also have little difficulty in finding that voting patterns are highly racially polarized, in the sense that black and white voters prefer different candidates with a high degree of frequency. Furthermore, the white voting majority is powerful enough, and consistent enough, to defeat black voters’ preferences for black candidates almost without exception.

In making this finding we rely primarily on actual events and practical politics. Since 1978 there have been ten races for membership in the State Legislature in which black candidates ran against white candidates in majority-white districts. The black candidate lost every one of these races. Complete election returns for seven of these ten races are in the record before us, and substantial evidence with respect to the other three was also introduced. In all but one of these races, that in which Earl Foster was the black candidate for State Representative in House district 88 in 1984, there was a high correlation between the race of the voter and the level of support for the black candidate. And even in Foster’s case, he was the candidate preferred by blacks in his home county, and was not the candidate preferred by whites in any of the counties covered by the district in question. The fact is that there is a strong tendency for white voters to vote for white candidates when there is a black candidate in the race. Black voters behave in exactly the same fashion. This is not a particularly admirable commentary on the voting behavior of either race, but it is a fact in present-day Arkansas politics, and there is no reason to suppose that it will change substantially in the near future. Evidence concerning so-called exogenous elections, that is, elections for positions other than membership in the State Legislature, also supports this conclusion.

Both sides spent a good deal of time and energy debating the merits of various statistical methods. The plaintiffs’ expert, Dr. Richard Engstrom, used three such methods: single regression, double regression, and homogeneous-precinct analysis. The defendants’ expert, Dr. John Wildgen, objected particularly to double-regression analysis, claiming that it could show nothing about the behavior of individual voters. Yet, both the Supreme Court, Thornburg, 478 U.S. at 53-61,106 S.Ct. at 2767-72, and this Court, Smith, 687 F.Supp. at 1316-17, have accepted testimony based on bivariate (that is, double) ecological regression and homogeneous-precinct analysis. We recognize, as Dr. Wildgen argues, that these statistical methods cannot predict the behavior of individuals, but we do not believe that plaintiffs make any such claim. Furthermore, exhibit after exhibit was introduced in the form of “scattergrams,” in which the votes for black and white candidates are plotted for various precincts. To our untrained eye, the cumulative effect of these exhibits is overwhelming, whatever the technical merits or demerits of the various statistical theories. And our own experience as citizens of this State, which we are not required to lay aside, strongly confirms this conclusion.

There are some exceptions to this pattern of racially polarized voting. Judge Edwin Keaton, Municipal Judge in Camden, was re-elected in 1988 against a single white opponent, but he failed to win a majority of the white vote despite being an incumbent. In addition, black candidates for the House have occasionally received a majority of the white vote, but only when running as incumbents in majority-black districts. And even in these races, the proportion of the black vote received by these candidates was much greater than that of the white vote.

Races not involving direct competition between white and black candidates do not lend themselves to such a clear pattern. Where two white candidates are running, for example, black voters can hold the balance of power. We do not wish to minimize this aspect of political reality, but we do not believe it has sufficient weight to negate the clear proof of polarization. The Supreme Court in Thornburg used a statistical analysis based solely on elections in which black and white candidates faced each other, and so did we in Smith. There, we stated that analysis of elections in which there are no black candidates proves only that “[cjandidates favored by blacks can win, but only if the candidates are white.” 687 F.Supp. at 1318. White voters, in short, can elect white candidates against black opposition, but black voters cannot elect black candidates against white opposition, with insignificant exceptions. We hope the day will come when this is no longer true, when voters of both races will vote for the person and not for the color of his or her skin. Whatever distaste we may personally have for racial stereotypes in politics, the relevant question for present purposes is the preferences of voters in real life, and we believe they have been clearly established. It is true here, as it was in Smith, see 687 F.Supp. at 1317, that there is racially polarized voting in races for the Arkansas State Legislature, that black voters usually vote cohesively, as a unit, and that white voters have the strength under the present plan of apportionment (except in majority-black districts) to enable them to frustrate the choices made by black voters.

C.

What we have written so far suffices to establish that the plaintiffs have proved the essential predicate for a Section 2 violation. But it does no more than that. We must now examine all of the other relevant factors and decide whether, on balance, a diminution of black political opportunity, in violation of Section 2, has been shown. For this purpose we begin with the list of relevant factors contained in the report of the Senate Judiciary Committee on the bill that became the 1982 amendment to the Voting Rights Act. The relevance of this list is confirmed by the Supreme Court’s opinion in Thornburg, 478 U.S. at 44-45, 106 S.Ct. at 2763-64. Accord, Smith, 687 F.Supp. at 1314. The list appears in S.Rep. No. 417, 97th Cong., 2d Sess. 28-29, reprinted in 1982 U.S.Code Cong. & Admim.News 177, 205-07, and reads as follows:

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;

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;

Additional factors that in some cases have had probative value as part of plaintiffs’ evidence to establish a violation are;

whether there is a significant lack of responsiveness on the part of elected officials to the particularized needs of the members of the minority group;

whether the policy underlying the state or political subdivision’s use of such voting qualification, prerequisite to voting, or standard, practice or procedure is tenuous.

The second of these factors (racial polarization in voting) has already been fully discussed. We have taken judicial notice of the first (history of official discrimination in voting) and fifth (effects of past discrimination in education, employment, etc.) factors. Accord, Smith, 687 F.Supp. at 1317 & n. 7. The record made in this case, however, is much fuller than the one made in Smith, and we deem it appropriate to summarize some of the details of the proof on these points. We will try to keep the discussion within short compass. Much of the proof in this case was already obvious to any conscious Arkansan, and we do not wish to pile Pelion upon Ossa.

History of Official Discrimination in Voting. In addition to the findings made in Smith and in Perkins v. City of West Helena, 675 F.2d 201 (8th Cir.), aff'd mem., 459 U.S. 801, 103 S.Ct. 33, 74 L.Ed.2d 47 (1982) (maintenance of at-large elections for discriminatory purpose), we also call attention to Sherpell v. Humnoke School Dist. No. 5, 619 F.Supp. 670, 680-81 (E.D.Ark.1985), appeal dismissed, 814 F.2d 538 (8th Cir.1987). There, this Court found that the Humnoke School District No. 5 of Lonoke County, Arkansas, maintained an at-large system of electing school-board members for the discriminatory purpose of limiting black political opportunity.

Some of the history relied on by plaintiffs can be dismissed or minimized on the ground that it occurred so long ago that its effects have by now disappeared almost completely. In this category we would place the General Assembly’s rejection of the Fourteenth Amendment, the white primary, and the poll tax (abolished by the voters in 1964). But other incidents cannot be so easily disposed of. A number of witnesses testified to the difficulties experienced by blacks in electoral politics in various of the areas affected by this litigation. Polling places have been moved on short notice; deputy voting registrars have, with isolated exceptions, been appointed only as a result of litigation; efforts have been made to intimidate black candidates. It is not necessary to decide at this point which (if any) of these barriers were motivated by invidious discrimination. It is sufficient for present purposes to note that these and similar practices clearly result in discouraging black participation in elections. Partly this is due to a higher level of illiteracy, poverty, economic dependence, even timidity, among the black population. And while defendants can hardly be blamed for creating these conditions, it is an inescapable fact that they are in large part the legacy of a history of discrimination, much of it governmental, beginning with the constitutionally sanctioned institution of human slavery.

We think it proper to refer to one additional instance of racial intimidation, occurring in 1986, in order to make the point that official discrimination designed to suppress black political activity is not wholly a thing of the past, at least not in the Delta. Roy Lewellen, a black lawyer in Marianna, Lee County, ran for the State Senate in 1986 against the white incumbent, Senator Paul Benham. At about the same time, the Sheriff and the Prosecuting Attorney instituted a well-publicized criminal prosecution against Mr. Lewellen for witness bribery. Mr. Lewellen testified in some detail before us. He gave a number of reasons for his belief that the prosecution was designed to discourage him in particular and black political activity in general. We find this testimony entirely credible. Defendants called no witnesses to rebut it.⁸ Mr. Lewel- len’s difficulties were to some degree of his. own making. He allowed himself to be drawn into an equivocal situation with a prosecution witness in a criminal case in which he represented the defendant. But this is not the whole explanation for what happened. We do not think that a white lawyer, even one who opposed the political powers that be, would have been treated this way. This kind of intimidation no doubt had a powerful chilling effect. In making this finding, we are consistent with the provisional findings made by this Court, on motion for preliminary injunction, in Lewellen v. Raff, 649 F.Supp. 1229 (E.D.Ark.1986), aff'd, 843 F.2d 1103 (8th Cir.), opinion modified, 851 F.2d 1108 (8th Cir.1988), cert. denied, — U.S. -, 109 S.Ct. 1171, 103 L.Ed.2d 229 (1989).

In short, there is a long history of official discrimination. It has a present effect. And some instances of it are still occurring.

Effects of Past Discrimination in Employment, etc. Much has already been said on this subject. See, e.g., Smith, 687 F.Supp. at 1317 n. 7 (income and education data for Crittenden County). Education is probably the key point here. Many more whites than blacks are high-school graduates, and many blacks were educated in schools that were both separate (by compulsion of law) and unequal. There is a tremendous amount of white poverty, especially in the Delta, but poverty among blacks is more nearly the rule than the exception. Blacks tend to have fewer telephones and fewer cars. If a person has no phone, cannot read, and does not own a car, the ability to do almost everything in the modern world, including vote, is severely curtailed. The point, again, is not that defendants produced these conditions. We are convinced that the two defendants who testified before us, Governor Clinton and Attorney General Clark, are determined to alleviate them. But as long as blacks, as a group, remain in a depressed socio-economic status, their political power will necessarily be less, and the impact on them of vote-diluting boundary lines will be greater.

We insert at this point a table setting out some of the economic facts of life for the two races in the 16 counties where this suit challenges district lines.

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Use of Majority-Vote Requirements and Other Devices. We do not believe that any of the challenged districts is unusually large. Races for the State Legislature require each candidate to run for a designated seat, so “single-shot voting” would have no practical significance. There is a requirement that candidates for the State Legislature get a majority of the vote in the primary to obtain a party nomination. And this majority-vote requirement, in four separate recent instances in which black candidates either won office by a plurality or were threatening to win, has been expanded to cover elections (e.g., for municipal judge) to which it has traditionally not been applied. We do not stop to determine at this point whether the run-off primary, either in its origin or in its recent extensions, is the product of discriminatory intent. That issue will be addressed when we consider plaintiffs’ constitutional claims and their request for preclearance under Section 3(c). For present purposes we simply note the existence of a majority-vote requirement affecting races for the General Assembly and many other public offices in Arkansas.

Candidate slating process. No evidence was introduced on this subject. As far as we know, the process of slating plays no part in races for the Arkansas Legislature. Nominations are made by primary, not (except in rare instances) by committee or convention. Anyone who wants to run simply files as an individual in the primary. If a candidate cannot pay a filing fee, petitions may be used to get on the ballot, and this method of ballot access is now fairly common.

Racial Appeals in Campaigns. Racial appeals, some quite offensive, are common in campaigns in which a white candidate is running against a black candidate. Sometimes simply informing the voters that one’s opponent is black seems to be enough to do the trick. Some white candidates have bought newspaper ads or distributed political leaflets containing their black opponent’s picture. Sometimes references to race are more explicit. In the Mayor’s race in Pine Bluff in 1975, for example, a supporter of a white candidate publicly warned that if white voters didn’t turn out, there would be a black mayor. Sometimes coarser words are spoken. We have in mind especially the testimony of Andrew James Willis of McGehee and his brother, Carol Willis, who is now an assistant to Governor Clinton. In 1976 Carol Willis ran for County Judge of Desha County, the first black person ever to do so, in this century anyway. Mr. Willis received obscene phone calls, including racial slurs. One night on his way home, he was run off the road by a group of individuals wearing hoods. And at a public rally his white opponent used profanity and a racial epithet — not in his actual speech, to be sure, but in open conversation. Both of the Messrs. Willis testified to this incident, and we believe them. The defendants offered no evidence to the contrary. After the election, the County (headed by the County Judge who had defeated Carol Willis) stopped or reduced its business with the Willis Funeral Home. The County had been paying the funeral home $100 to bury black paupers. The County even went so far as to pay a “white” funeral home $500 (a premium rate) to bury a black pauper — an event unheard of at the time and probably still unique. We find here a macabre echo of the testimony of R.C. Henry, the longtime (black) Chairman of the Lee County Republican Committee, from 1979 to 1989. To this day, the races live separately, he said, they go to church separately, and they even die separately. And as late as Octo ber 2 of this year, the City of Marianna was maintaining, at public expense, a cemetery for whites only.

The Extent to Which Blacks Have Been Elected. The statute expressly provides that members of a protected class have no right to be “elected in numbers equal to their proportion to the population.” 42 U.S.C. § 1973(b). But “[t]he extent to which members of a protected class have been elected to office in the State or political subdivision may be considered....” Ibid. This factor points strongly in plaintiffs’ favor in the present case. Only in majority-black districts have black candidates been elected to the Arkansas General Assembly. All other black candidates have been defeated. It was not until 1972 that any blacks were elected to the Legislature in this century. Four black members, three in the House and one in the Senate, were elected at that time. Today there are only six black members, and one of them owes his seat to this Court’s decree in Smith. No black person has ever won statewide office by election. And in all of the 75 counties of Arkansas, no black person has ever been elected, since Reconstruction, to any county-wide constitutional office. There are increasing numbers of black officials, even in the Delta, but in almost every instance they have been elected in majority-black single-member districts (we refer primarily to city councils, school boards, and quorum courts), and many of these districts owe their existence to civil-rights litigation. We believe, in addition, that many potential black politicians have simply not run. They know that as a practical matter their candidacy would probably be futile.

Lack of Responsiveness of Elected Officials. Plaintiffs claim that white legislators in the Delta are insensitive to the concerns of poor black people. Certainly there is a widespread feeling to this effect among black voters, and plaintiffs presented several witnesses who genuinely feel left out of the political process. These feelings are not without basis. If a person is blindfolded and taken to a given part of town, and the blindfold is then removed, he or she will almost certainly be able to tell whether the residential area is predominantly white or black. Housing is still largely segregated — not by law, but, just as effectively, by choice and economic necessity. Houses in black parts of town tend to be run down, streets and gutters are not as well kept, and there are more open ditches. Certainly this condition is due in part to the unresponsiveness of local government over the years, a situation that, however, is now beginning to change with the election of more black City Council members and Justices of the Peace.

We are not convinced, however, that the charge of unresponsiveness can be sustained as to the members of the State Legislature, and it is with them that we must be particularly concerned in this case. Members of the House like Representatives Cunningham, McGinnis, Flanagin, and Dawson are anything but unresponsive. They are well aware that a large proportion of their constituency is black, and they make assiduous and sincere efforts to represent these voters. There is bound to be some public dissatisfaction, among blacks as well as whites, with almost any office holder, but the charge that white legislators in the Delta are unresponsive to black needs has not been proved to our satisfaction on this record. No doubt some are more responsive than others, but such individual variations in political philosophy and conduct will always be found.

As examples of unresponsiveness, plaintiffs pointed particularly to two pieces of legislation, one that became law and one that did not. In 1987, a bill was passed to impose additional regulations on the use of the absentee ballot. The bill was sponsored by House members from the Delta, and plaintiffs claim that its purpose was to suppress the incipient effective use of the absentee ballot by black voters. There is some evidence to support this claim. Despite a long history of difficulty and fraud with the absentee ballot in Arkansas, it was not until 1987 that the bill in question was passed. (Among other things, the bill allows only close relatives to deliver absentee ballots from voters to the county clerk. In practice, plaintiffs say, this restriction operates against elderly black people, who may not have relatives and are not able to get to the courthouse themselves. The option of mailing the ballot remains, but some poor people cannot afford the postage.) On balance, we find this claim unpersuasive. The legislation was passed overwhelmingly, with votes from all parts of the State, including all of the black members of the House of Representatives. It is facially neutral, and we find plausible the claim that there were real abuses in absentee balloting that needed to be addressed.

Plaintiffs also presented a considerable amount, of testimony about H.B. 1130, which was introduced during the 1989 regular session of the General Assembly, but failed to pass in the Senate. This bill, sponsored by Governor Clinton, would have done two principal things: it would have removed from the State income-tax rolls a large number of low-income people, including many black people, and it would have imposed on taxpayers with incomes in excess of $100,000 a year a flat tax rate of 7% on their entire income. Plaintiffs claim that white legislators in the Delta opposed this bill, thus preferring the needs of a few rich constituents to those of thousands of low-income blacks. We do not agree with this claim. Representatives Cunningham and Schexnayder, for example, cosponsored H.B. 1130, and Representatives Dawson and Flanagin and Senator Benham voted for it. Some white legislators from the Delta did oppose the bill, but their motives in doing so, we think, were honestly political. Representative Nancy Balton, for example, testified that middle-class voters in her district asked her to oppose the bill. Nothing in the bill directly injured them, but some of them felt that poor people on welfare were living better than they were, and therefore they opposed anything that would improve the lot of these people. The reasoning is faulty, but the sentiment is all too familiar, and state legislators, like national ones, often vote on the basis of public perception of the effects of proposed legislation, as opposed to the effects in reality. This is a serious problem, but we do not believe it is a racial one.

There is some evidence of unresponsiveness on the part of the Legislature. Some white members, on being approached by black citizens in their own districts for help, referred these constituents to black legislators representing other areas. And black members have found it difficult to get white members to cosponsor some bills of interest to black voters — for example, the bill to create a holiday in honor of Dr. Martin Luther King, Jr. But on the record as a whole, the charge of unresponsiveness has not been proved.

The Strength of Policies Underlying the Plan of Apportionment. We are not quite sure how to apply this criterion in the present case. There was no policy, nor could there be a valid one, explicitly requiring the cracking or splitting of black-majority areas. The Board of Apportionment did profess allegiance to a number of other policies, however, including the undesirability of crossing natural barriers like rivers, the undesirability of splitting cities, a preference for continuity in representation (that is, avoiding situations where incumbents would have to run against each other), a desire to depart as little as possible from the 1971 apportionment plan, and a desire to cross political boundaries, like county lines, as little as possible. There was, in addition, the overriding policy of equality of population, which was probably the uppermost thought in the Board’s mind at the time.

Some of these policies were not consistently applied. The cities of Little Rock, Pine Bluff, and El Dorado were split, but each of those cities is so large that it had to be split. It could not have been contained wholly within one House district. On the other hand, the City of Pine Bluff, which could have made up one Senate district, was split between two Senate districts, evidently to avoid the necessity of a political race between two senior senators. One reason given for preserving Crittenden County as a multi-member district was the desire to avoid splitting the City of West Memphis. There is a surface inconsistency here with the decision to split the City of El Dorado, but it is explained, perhaps, by the fact that Union County, of which El Dorado is the county seat, is the largest county the State in geographic area, and therefore a logical candidate for the creation of separate single-member districts. The policy against creating districts which are divided by a natural barrier, now urged upon us as a reason not to create a district that would contain territory in Pulaski County on either side of the Arkansas River, was violated in the drawing of House district 85, which includes territory on either side of the Arkansas River in Desha County, forcing citizens north of the river to drive more than 90 miles to reach the largest city in their district, where their state representative lives. in

There are a number of crosscurrents here, and they point in various directions. On the whole, we are not persuaded that this factor has much weight. There were fairly strong policies underlying the apportionment plan, but they were not always consistently applied. To a certain extent, this is an inevitable part of line-drawing under the one-person, one-vote regime.

D.

Having fully reviewed the relevant factors, we must now balance them and come to a conclusion on the ultimate issue: whether black voters have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice. The areas of the State that are in issue include Pulaski County, Jefferson County and some adjacent territory, areas in South Arkansas including parts of Ouachita, Nevada, and Columbia Counties, and the area generally referred to as the Delta, including Mississippi, Lee, Phillips, Cross, St. Francis, Desha, Chicot, and Ashley Counties, together with some adjacent territory. (Crittenden County, which is also in the Delta, is not affected, except for one corner: it was dealt with in Smith, and neither side in this case asks for a change in House districts 48 and 49, which comprise most of the County.) To put it another way, the claim directly involves the following House districts: 56 through 70, 88, 80-83, 38, 47, 74, 75, 73, 85, and 100. It also directly involves the following Senate districts: 27, 28, 19, and 30.

We think the case is clear with respect to all these areas except Pulaski County (which includes House districts 56 through 70). The proof justifies consideration of the Delta, the Jefferson County area, and the Ouachita-Nevada Counties area as a group. There are some differences within the group, but as a whole it shares a significant number of common characteristics. Voting is markedly polarized between the races. With the exception of House district 82, in Jefferson County, there are no districts, House or Senate, with a majority-black voting-age percentage. A number of such districts, nine in the House and two in the Senate, could have been created. (The number of House districts, nine, is exclusive of the new majority-black House district in Crittenden County created by Smith.) These districts would have been reasonably compact and contiguous. The history of official discrimination, the frequency of racial appeals in campaigning, the absence of successful black candidates, the effects of discrimination in education, employment, and health — all these factors point in favor of plaintiffs’ claim. Also on the plaintiffs’ side is the existence of a majority-vote requirement. The slating-process factor⁹ is not in this case at all, and the state-policy factor does not point strongly either way. On the other hand, there are a number of responsive white legislators. On balance, a clear answer emerges. In these areas, black political opportunity is significantly lessened by the 1981 apportionment plan, and the plan violates Section 2 of the Voting Rights Act.

What about Pulaski County? Is it materially different from the areas we have just discussed? Many of the same factors are present. Voting is polarized, and four reasonably compact and contiguous¹⁰ majori ty-black single-member House districts could have been drawn, as opposed to the one three-member majority-black district that was drawn. (There are five single-member Senate districts, only one of them majority black, but the black population is not large enough to make possible more than one majority-black Senate district.) There has been no successful black candidate for the Legislature outside the majority-black areas. There have been some racial appeals in elections. The history of official discrimination affects voting in the entire State. Socio-economic disparities between the races are marked.

On the other hand, racial polarization in voting is less pronounced in Pulaski County. In 1976, Robert Johnston, an incumbent white House member, defeated a black opponent in a majority-black district. He had to have significant black support to do so. In 1984, a black candidate, Glenn Mahone, won the Democratic nomination for a House seat in a majority-white district against a white opponent in the runoff. He was defeated by the Republican nominee in the general election, but winning the Democratic nomination is better than any black candidate has done in legislative races in majority-white districts elsewhere in the State. In 1986, a black candidate for Congress, Thedford Collins, was defeated in the district as a whole, running fourth out of five in the Democratic Primary. But in Pulaski County he ran third and did well in some white areas, primarily among affluent voters. He was endorsed by the Arkansas Democrat, one of two state-wide newspapers, and shared with one other candidate the endorsement of the Arkansas Gazette, the other state-wide newspaper. Both newspapers are controlled by white people. And Marion Humphrey, elected municipal judge by a plurality in 1988, would not have won without significant white support. There have been racial appeals in elections, but they have not included the grosser features of some of the other incidents we have described.

Furthermore, the extent of socio-economic depression among black people is less pronounced in Pulaski County. As the table appearing at p. 211 above shows, among the 16 counties affected by the case, Pulaski County has the highest percentage of black high-school graduates, the highest black per capita income, the smallest proportion of black families below the poverty level, the smallest percentage of black people without a telephone, and the second smallest percentage of black people without a car. More importantly, the whole political atmosphere, with respect to black opportunity and participation, seems more open. Carol Willis, a man of wide political and governmental experience to whom we referred earlier, summed it up: Pulaski County is different.

Is it different enough? The question, in the end, is one of judgment, as to which reasonable politicians and judges may differ. We are instructed to approach such questions with “a searching practical evaluation of the past and present reality,” and to take “a functional view of the political process.” Thornburg, 478 U.S. at 45, 106 S.Ct. at 2763 (citations and internal quotations omitted). Furthermore, the list of factors in the Senate Report “is neither comprehensive nor exclusive^] ... other factors may also be relevant and may be considered.” Ibid (footnote omitted). We think a factor not yet mentioned tips the balance against plaintiffs’ claim in Pulaski County: the preference of the black community in Pulaski County, as expressed by two of its elected representatives, for the status quo. State Representatives Irma Hunter Brown and Grover Richardson, who in 1981 were two of the three black members serving in House district 62-64, both told the State Board of Apportionment that they preferred the existing multi-member arrangement to a system of 15 single-member districts in Pulaski County. See PX 14C (Minutes of the Public Hearing of May 12, 1981, before the Board of Apportionment). Others who appeared advocated single-member districts in principle, but Representatives Brown (who is still in office) and Richardson, the only two black elected officials to speak, disagreed. Mr. Richardson seemed to favor single-member districts in Eastern Arkansas, but he thought “the three [black] representatives [in Pulaski County] favor[ed] the multi-member district.” PX 14C, p. 11. Ms. Brown had mixed emotions on the subject but came down in the end to the view that the existing arrangement “was a little more palatable.” Id. at 20. Both Representative Richardson and Representative Brown stuck to this view even under close questioning by Bill Bethea, who represented Governor White at the hearing. They seemed to find more strength and cohesion in the multi-member arrangement, especially for minority interests. We recognize that many political scientists disagree with this view, and that the opinions of two elected officials do not necessarily represent the views of all of their constituents, let alone the views of black citizens in other parts of the County. We note, however, the testimony of Governor White in the present case that no black citizen of Pulaski County asked for single-member districts.

After a careful consideration of all the factors, we resolve this close question in favor of the defendants. It would be unfair to fault the Board of Apportionment for acceding to the expressed wishes of the only two black legislators from Pulaski County who appeared before it.

In sum, we hold that no violation of Section 2 of the Voting Rights Act has been shown in Pulaski County. With respect to the other areas of the State challenged in this suit, we hold for the plaintiffs. Section 2 is being violated in those areas.

IV.

We must now fashion a remedy. A few comments may be helpful to the parties. In the first place, active participation at the remedial stage of this case on the part of the defendants, the members of the State Board of Apportionment, is vitally important. We are ordering them to submit a plan. They are the authorities charged by state law with the responsibility of drawing a plan of apportionment, and they should also bear the primary responsibility for conforming the present plan to the requirements of federal law. They are closer to and more familiar with all of the many factors, political, demographic, and social, that deserve to be considered. A suggested plan submitted by plaintiffs is also important. The alternative districts they have suggested already, at the liability stage of the case, may need to be adjusted, but plaintiffs have shown a considerable degree of skill in drawing them. We assume that defendants will consider the views of plaintiffs and all other interested and affected citizens in preparing their plan.

The task will not be simple. It is not just a matter of drawing districts that will have a majority-black voting-age population. There will inevitably be a ripple effect, necessary changes in the boundaries of adjacent districts. This effect should be limited as much as possible. It should be possible to limit it only to those districts which are directly adjacent to the new majority-black districts to be created. In this way, most of the legislative districts in the State will not be disturbed. We see no need for any changes in that part of the State which lies north and west of a diagonal line running from the southwest to the northeast. Nor, for reasons already given, need there be any changes in Pulaski County-

We are not holding that the law requires the creation of any particular number of majority-black districts. We know, and have found in this opinion, how many such districts can be created, and we also know that their lines can be drawn so as to make them reasonably compact and contiguous. There is, therefore, a sort of presumption that any plan adopted should contain that number of majority-black districts. There may be practical problems which we cannot foresee, though, and we are not foreclosing our duty to consider them after both sides submit their plans.

We are requiring that plans be submitted by the parties on or before January 15, 1990. At the trial, defendants took the position that they would need 90 days within which to draft a plan, if we found liability on their part. We are giving them considerably less time, but we are doing so, we think, for good reason. First, the 90-day time period was mentioned as being necessary to re-draw the lines for the entire State, and that will not be necessary. Second, a good deal of the groundwork has already been laid by the detailed proof made in this case at the liability stage, including the maps of alternative districts introduced by the plaintiffs. Finally, if relief is to be effective at all, it must be in place sufficiently in advance of the 1990 elections to allow the public and prospective candidates to make necessary adjustments to the new lines. All of this will require a great deal of time, expense, and dislocation, but we believe the Voting Rights Act leaves us no alternative. The Act does not permit either this Court or the defendants to subject the plaintiffs and those they represent to another election conducted on an unlawful basis. The lines will have to be re-drawn again after the 1990 census, but fair and lawful representation in the Legislature to be elected in 1990 remains of great importance, especially in view of the fact that its members will draw new lines for congressional districts. Only if relief is afforded now will plaintiffs get in on the ground floor of this process to the extent required by law.

Judge Exsele has advised that he will dissent for the laches of the plaintiffs in filing this action and the inappropriateness of the requested injunctive relief so near to the next reapportionment and the 1990 elections. He further advises that he will concur with the majority in the finding that there was a Section 2 violation although he would exclude not only Pulaski County but also Jefferson County and House districts 74, 75, 82, and 100. Since he disagrees with certain of the Court’s findings and conclusions, he will in due course file a dissent and concurring opinion in order to further set forth his views. He agrees with the majority, however, that its opinion on Section 2 of the Voting Rights Act should be filed at this time and that an appropriate order, or orders, be entered for the purpose of giving the defendant Board and all interested parties as much time as possible to redistrict in accordance with the Court’s opinion. Judge Eisele also disagrees with the majority’s .opinion that, because the Court has found that the Board in 1981 could have created thirteen majority-black House districts and three majority-black Senate districts, there is some sort of a presumption that the present Board in 1990 should, in complying with this Court’s order, create that number of House and Senate districts. He will also explain his views on this remedy issue in his opinion.

An order is being entered today to carry out the conclusions and directions expressed in this opinion.

CONTENTS

Dissenting Opinion, filed Dec. 7, 1989 (#1). 219-226

Concurring and Dissenting Opinion, filed Jan. 19, 1990 226-284

OVERVIEW. 227

I. SECTION 2 OF THE VOTING RIGHTS ACT: THE INTERPRETIVE FRAMEWORK.. to to 00

A. A Walk Through the Statute. to to <£>

Following: That, As A Result of The 1981 District Lines, Blacks (1) Have Less Opportunity To Participate In The Political Processes; and (2) Have Less Opportunity To Elect Representatives Of Their Choice?. to CO o

C. Introducing The “Zimmer” and “Senate” Factors. to CO h-A

II. CONSTITUTIONAL LIMITATIONS: USE OF “REPUBLICAN FORM OF GOVERNMENT” GUARANTEE OF ARTICLE IV, SECTION 4, U.S. CONSTITUTION. to CO to

III. HAVE PLAINTIFFS SHOWN THAT THE 1981 DISTRICTING PLAN RESULTS IN BLACKS HAVING LESS OPPORTUNITY THAN OTHERS TO PARTICIPATE IN THE POLITICAL PROCESS? . to CO

IV. HAVE PLAINTIFFS SHOWN THAT THE 1981 DISTRICTING PLAN RESULTS IN BLACKS HAVING LESS OPPORTUNITY THAN OTHERS TO ELECT CANDIDATES OF THEIR CHOICE?. co o

V. THE THORNBURG FACTORS. ^

A. Political Cohesiveness . ^

1. Black Voting Behavior. ^

2. White Voting Behavior . ^

B. What is a “Minority?” . cr

VI. THE “ZIMMER” AND SENATE FACTORS... to

A. Relevance and Effect. bo

B. Application of Senate Factors in This Case. cn

1. Senate Factor #1. cn

2. Senate Factor #5.

3. Senate Factor #3.

4. Senate Factor #6.

5. Senate Factor #7. m

6. Lack of of Elected Officials. to

7. The Strength or Tenuousness of Policies Underlying the Plan of Apportionment. to o to

VII. THE MAJORITY’S DECISION TO EXCLUDE PULASKI COUNTY DISTRICTS: AN ANALYSIS. to a to

VIII.DID PLAINTIFFS ESTABLISH ONE OR MORE SECTION 2 VIOLA-cq <N

A. Mississippi and Crittenden Counties.266

B. Phillips County .267

C. Chicot, Desha and Ashley Counties.270

D. St. Francis and Lee Counties.272

E. Jefferson County and Pine Bluff.273

F. Lincoln and Cleveland Counties.274

G. Ouachita, Nevada and Columbia Counties .275

H. The Senate Districts .276

I. Summary.277

IX.CONCLUSION.278

ADDENDUM: THE EIGHTH CIRCUIT REVERSAL IN WHITFIELD: SAME PROBLEM; SAME RESULT.281

Judge Howard joins in this opinion. Judge Ei-sele will file a separate opinion, concurring in part and dissenting in part, in due course. See infra p. 219.

1

. Plaintiffs made a motion for class certification, but we denied it as untimely. It was not filed within 90 days of the complaint, as required by E.D.Ark.R. 24.

2

. This number includes a single-member majority-black district in Crittenden County, which this Court ordered into effect in Smith v. Clinton, 687 F.Supp. 1310, remedy adopted, id. at 1361 (E.D.Ark.), aff’d mem., - U.S. -, 109 S.Ct. 548, 102 L.Ed.2d 576 (1988).

3

. As a consequence of our decision in Smith, supra, 76 Representatives are now chosen from single-member districts, and 24 from multi-member districts. Fifteen of the 24 House members chosen from multi-member districts are from Pulaski County, which is divided into five three-member House districts, each one of which is coterminous with a single-member Senate district.

4

. Substantially greater leeway, in terms of deviation from absolute equality, is allowed in the drawing of state legislative districts, as opposed to the drawing of congressional (U.S. House of Representatives) districts. The 1981 plan allowed legislative districts to deviate by as much as five per cent, above or below the ideal size. The Supreme Court has indicated that a deviation of as much as ten per cent, above or below the ideal size can be upheld. See Connor v. Finch, 431 U.S. 407, 97 S.Ct. 1828, 52 L.Ed.2d 465 (1977).

5

. The plea is laches, not limitations. This is a suit in equity, and defendants do not argue that it is governed by any statute of limitations.

6

. In Thornburg the plaintiffs had originally challenged one single-member district, in addition to multi-member districts, as being the result of the fracturing of a concentration of black voters that could have made up a majority in a single district. The District Court found this single district violated Section 2, and the defendants did not appeal this finding. See Gingles v. Edmisten, 590 F.Supp. 345 (E.D.N.C.1984).

7

. We use the term "alternative districts," rather than “proposed districts." At this stage of the case, the liability stage, plaintiffs need show only that majority-black districts could have been drawn. At the relief stage of the case, when plaintiffs will, presumably, submit an apportionment plan of their own, they will not necessarily be bound by these alternative districts. Plaintiffs should also make suggestions, fully reflecting their position, to defendants during the process of preparation of defendants’ plan.

8

. Senator Benham did testify that he had nothing personally to do with the prosecution. We believe him; but the fact remains that the Sheriff had warned Lewellen not to run, and that charges were brought after that advice was ignored. The point here is the motivation of those who instigated the prosecution, not whether Senator Benham himself was among them.

9

. See supra p. 209.

10

. We reject defendants’ argument that plaintiffs' alternative district 7 is not reasonably compact because it contains territory on both sides of the Arkansas River. There are a number of bridges across the River, and legislative districts have been split by it in the past. Moreover, it might be possible to create a new majority-black district entirely north of the River. See Post-Trial Brief for Plaintiffs 44-45 & n. 31.