Johnson v. Mortham

926 F. Supp. 1460, 1996 WL 189235

Opinions

FINDINGS OF FACT AND CONCLUSIONS OF LAW

BY THE COURT:

This case arises from the 1992 Florida congressional redistricting process in which a three-judge federal court established a number of districts with racial or ethnic minorities constituting a majority of the voting age population. Plaintiffs are white and hispanic voters who raise an equal protection challenge to Florida’s Third Congressional District under the authority of Shaw v. Reno, 509 U.S. 630, 113 S.Ct. 2816, 125 L.Ed.2d 511 (1993).

Footnotes

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* Plaintiffs claim that District Three is unconstitutional because it segregates voters on the basis of race, and is not narrowly tailored to further a compelling governmental interest.

On November 20, 1995, we granted plaintiffs' motion for partial summary judgment on two issues: first, the three-judge court ("the DeGrandy court") which established the district's boundaries¹ lacked the constitutional authority to adopt a permanent redistricting plan; and second, District Three was drawn for predominately race-based reasons, thereby triggering strict scrutiny. Johnson v. Mortham, 915 F.Supp. 1529, 1552-53, (N.D.Fla.1995). See generally Miller v. Johnson, 514 U.S. —, —, 115 S.Ct. 2475, 2481, 2490, 132 L.Ed.2d 762 (1995) (strict scrutiny triggered when a redistricting or reapportionment plan is drawn for predominately race-based reasons), on remand, 922 F.Supp. 1556, No. 194-008, (S.D.Ga.1995), petition for cert. filed, 64 U.S.L.W. 3625, 3642 (U.S. Mar. 6, 1996) (Nos. 95-1425, 95-1460); Shaw, 509 U.S. at 642-47, 113 S.Ct. at 2825-27 (same).

This cause has now proceeded through discovery on the remaining issue of whether District Three survives strict scrutiny review. A three-day bench trial was concluded in this matter on February 22, 1996. All parties and party-intervenors were represented at the trial. The Court now sets out its findings of fact and conclusions of law in accordance with Rule 52(a), Federal Rules of Civil Procedure, based upon all admissible evidence presented at trial, or otherwise contained in the record.

DISCUSSION:

As discussed below, the remaining plaintiffs in this action² have shown that they have suffered an actual injury in fact. Therefore, plaintiffs have standing to maintain their equal protection challenge to District Three. See Miller, 514 U.S. at —, —, 115 S.Ct. at 2481, 2485; United States v. Hays, 514 U.S. —-—, 115 S.Ct. 2431, 2436-37, 132 L.Ed.2d 635 (1995). This Court has jurisdiction to consider plaintiffs’ claims pursuant to Title 28, United States Code, Section 1343(a)(3).

Since plaintiffs have already met their burden of showing that race was the predominant motivating factor in the drawing of District Three, strict scrutiny applies. Miller, 514 U.S. at —, —, 115 S.Ct. at 2481, 2490; Shaw, 509 U.S. at —-—, 113 S.Ct. at 2825-27.³ "To satisfy strict scrutiny, the state must demonstrate that its districting legislation is narrowly tailored to achieve a compelling interest." Miller, 514 U.S. at —, 115 S.Ct. at 2490. As we earlier noted in a separate order, the trial burdens in this case are as follows: "Defendants and Defendant-Intervenors bear the burden of producing evidence demonstrating there is a strong basis in evidence that the DeGrandy court's predominant use of race-conscious districting satisfies strict scrutiny." On the other hand, plaintiffs bear the burden of "rebutting the evidence put forward by Defendants and Defendant-Intervenors on the strict scrutiny issue, and persuading the Court that Defendants have not made a sufficient showing to satisfy strict scrutiny review." Johnson v. Mortham, 915 F.Supp. 1574, 1580 (N.D.Fla. 1996) (citations omitted). We altered the order of presentation at trial for purposes of convenience and clarity, with the defendants and the defendant-intervenors proceeding first, in order to properly reflect the parties' respective trial burdens.

I. Compelling Governmental Interest:

The first trial issue is whether the DeGrandy court had a compelling governmental interest in drawing District Three for predominately race-based reasons. A compelling interest has been described by the Supreme Court as one "of the highest order." Church of the Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520, 546, 113 S.Ct. 2217, 2233, 124 L.Ed.2d 472 (1993). Defendants contend two compelling interests motivated the DeGrandy court in its redistricting plan: first, that the DeGrandy court was motivated by a desire to comply with section 2 of the Voting Rights Act; and second, that the DeGrandy court desired to adopt a remedial measure designed to eradicate effects of past discrimination in Florida.

On the other hand, plaintiffs assert that there were no compelling interests that justified the creation of District Three. Specifically, plaintiffs contend that there was no voting practice or procedure in northeast Florida that interacted ivith present effects of past discrimination in a manner that denied or abridged the right of African-Americans to vote. They further maintain that District Three was not draAvn in order to avoid a dilution of African-American voting strength in northeast Florida, since the African-American community in northeast Florida was too small and too geographically separated to satisfy the Gingles⁴ threshold criteria.

Each of the compelling interests advanced by Defendants' and Defendant-intervenors will be separately addressed.

A. Compliance with the Voting Rights Act:

Although a number of lower courts have concluded that compliance with the Voting Rights Act is a compelling governmental interest⁵, the Supreme Court has stopped short of adopting such a blanket rule. For example, in Shaw, the Court noted:

The States certainly have a very strong interest in complying with federal antidiscrimination laws that are constitutionally valid as interpreted and as applied. But in the context of a Fourteenth Amendment challenge, courts must bear in mind the difference between what the law permits, and what it requires____ We note, however, that only three Justices in UJO were prepared to say that States have a significant interest in minimizing the consequences of racial block voting apart from the requirements of the Voting Rights Act. And those three Justices specifically concluded that race-based districting, as a response to racially polarized voting, is constitutionally permissible only ivhen the State “employ[s] sound districting principles,” and only when the affected racial group’s “residential patterns afford the opportunity of creating districts in which they will be in the majority. ”

509 U.S. at 654-57, 113 S.Ct. at 2830-32 (quoting United Jewish Org. of Williamsburgh, Inc. v. Carey, 430 U.S. 144, 167-68, 97 S.Ct. 996, 1011, 51 L.Ed.2d 229 (1977) (opinion of White, J., joined by Stevens and Rehnquist, JJ.)) (emphasis added). Similarly, in Miller, the Court held that "compliance with federal antidiscrimination laws cannot justify race-based districting where the challenged district was not reasonably necessary under a constitutional reading and application of those laws." 514 U.S. at —, 115 S.Ct. at 2491 (finding that Georgia's Eleventh Congressional District was not required by the VRA "under a correct reading of the statute"). See also Johnson v. DeGrandy, 512 U.S. —, —, 114 S.Ct. 2647, 2667, 129 L.Ed.2d 775 (1994) (Kennedy, J., concurring) ("Given our decision in Shaw, there is good reason for state and federal officials with responsibilities related to redistricting, as well as reviewing courts, to recognize that explicit race-based districting embarks us on a most dangerous course. It is necessary to bear in mind that redistricting must comply with the overriding demands of the Equal Protection Clause.").

For purposes of analysis in this case, however, we will assume that compliance with the Voting Rights Act is a compelling governmental interest if, and to the extent, there is a "strong basis in evidence" that remedial action is required to avoid violating federal law. See Miller, 514 U.S. at —, 115 S.Ct. at 2491 (collecting cases). In order to have a "strong basis in evidence" to engage in race-based redistricting, a governmental actor must have "information sufficient to support a prima facie showing that its failure to do so would violate the Act." Hunt, 861 F.Supp. at 437-40 (citations omitted). Accord King, 1996 WL 130439, at *26-27; Quilter v. Voinovich, 912 F.Supp. 1006, 1020 (N.D.Ohio 1995), appeal dismissed, — U.S. —, 116 S.Ct. 42, 133 L.Ed.2d 9 (1995). Cf. City of Richmond v. J.A. Croson Co., 488 U.S. 469, 500, 109 S.Ct. 706, 725, 102 L.Ed.2d 854 (1989) ("strong basis in evidence" requires evidence "approaching a prima facie case of a constitutional or statutory violation") (plurality opinion); Peightal v. Metropolitan Dade County, 940 F.2d 1394, 1401 (11th Cir.1991) (same), cert. denied, 502 U.S. 1073, 112 S.Ct. 969, 117 L.Ed.2d 134 (1992). Of course, compliance must also be measured under a correct and constitutional reading of the Voting Rights Act.

Without question, the DeGrandy court was motivated by a desire to comply with the Voting Rights Act. Yet, it is also apparent that the DeGrandy court was operating under the mistaken assumption that Section 2 of the Voting Rights Act required the adoption of a congressional redistricting plan with as many majority-minority districts as could be reasonably accomplished. See DeGrandy, supra, 794 F.Supp. at 1085 ("Like the Special Master, we conclude that `the law supports the drawing of a minority district where, in light of minority concentrations and community of interests, such a district can reasonably be drawn.'") (quoting Report of the Special Master at 14); id. ("Where, in a statewide redistricting case such as the present one, this court can reasonably draw a majority-minority district, we cannot choose to create an influence district or districts."); id. at 1091 (Vinson, J., specially concurring) ("It is not our goal ... under section 2 of the [Voting Rights] Act to draw as many minority districts as possible. But we should draw as many as can be reasonably done.") (emphasis added). The Supreme Court has since held, however, that a correct reading of Section 2 does not require maximization. Johnson v. DeGrandy, 512 U.S. —, —, 114 S.Ct. 2647, 2659, 129 L.Ed.2d 775, 794 (1994) (rejecting "the rule of thumb apparently adopted by the District Court, that anything short of the maximum number of majority-minority districts consistent with the Gingles conditions would violate § 2").

Furthermore, as discussed below, the De-Grandy court lacked a compelling interest in drawing District Three to comply with the Voting Rights Act for two additional reasons. First, any Section 2 claim the DeGrandy plaintiffs had under the Act was already moot when the DeGrandy court established District Three. Second, even if the DeGrandy plaintiffs’ Section 2 claim was not moot and had remained viable after the existing scheme was struck down, the record demonstrates the absence of a “strong basis in evidence” that a Section 2 violation occurred.

1. Mootness of the DeGrandy Plaintiffs’ Section 2 Claim:

Plaintiffs’ counsel stated in closing arguments that “[t]his really, though, has turned into somewhat of a back-door vote dilution case. There’s never been an allegation that the plan that was in effect from 1982 to 1992 diluted minority voting strength ...” Tr. at 672. However, the DeGrandy plaintiffs had alleged in an eight-count complaint numerous violations of federal law, including constitutionally impermissible malapportionment and unlawful vote dilution. See DeGrandy 2nd Am. Compl. (92-40015, Doc. 44). Nevertheless, this Section 2 claim was already moot before the DeGrandy court began consideration of a remedial plan.⁶ On April 30, 1992, the DeGrandy court had entered summary judgment for the plaintiffs on that claim, finding that, in light of the 1990 census results, Florida’s existing congressional districting plan was malapportioned in violation of the Equal Protection Clause of the Fourteenth Amendment and the “one-person, one-vote principle” (92-40015, Doc. 304).

In Growe v. Emison, 507 U.S. 25, 113 S.Ct. 1075, 122 L.Ed.2d 388 (1993) (decided after the DeGrandy Court entered the order now challenged in this case), a unanimous Supreme Court found that a vote dilution claim was moot under analogous circumstances. There, the plaintiffs had alleged in their suit that, in light of the 1990 census results, Minnesota's congressional and legislative districts created in 1983 were malapportioned, and that the districts diluted the vote of minority groups in Minneapolis. A three-judge court found that the state court's legislative reapportionment plan violated the Voting Rights Act because it did not contain a super-majority minority senate district, when its own court-ordered remedial plan had contained such a district. Emison v. Growe, 782 F.Supp. 427 (D.Minn.1992). The Supreme Court reversed. Growe v. Emison, 507 U.S. , 113 S.Ct. 1075, 122 L.Ed.2d 388. The Supreme Court first noted that the plaintiffs' vote dilution claim became moot once the state court had declared the 1983 plans to be unconstitutionally malapportioned:

[I]t is not precisely clear which legislative districting plan produced the vote dilution ... For almost a decade prior to the 1992 election season, the only legislative districting plan that had been in use in Minnesota was the 1983 plan, which all parties agreed was unconstitutional in light of the 1990 census. More importantly, the state court had declared the 1983 plan to be unconstitutional in its final order of January 30. Once that order issued, the Emison plaintiffs’ claims that the 1988 plan violated the Voting Rights Act became moot, unless those claims also related to the superseding plan.

Id. at 39, 113 S.Ct. at 1083-84 (emphasis added). The Supreme Court then held that even if that were not the case, the district court’s failure to consider (much less find) any evidence of racially polarized voting precluded the district court from adopting a remedial plan that included a super-majority minority district. Id. at 40-42, 113 S.Ct. at 1084-85.⁷

Therefore, under Growe, once the DeGrandy court had entered summary judgment in favor of the plaintiffs on their malapportionment claim, the plaintiffs’ Section 2 challenge to the 1982 congressional districting plan was no longer cognizable. Furthermore, the De-Grandy plaintiffs’ Section 2 vote-dilution challenge could not have related to the superseding plan adopted by the DeGrandy court—Plan 308—because as Defendants and Defendant-Intervenors have ably pointed out, Plan 308 itself was adopted as a remedy, not as a violative vote-dilution vehicle.

2. Insufficient Evidentiary Record:

Notwithstanding the fact that the plaintiffs’ vote-dilution claim was moot, the DeGrandy court nevertheless found that Florida’s existing congressional districts, drawn in 1982, violated Section 2 of the Voting Rights Act of 1965 (codified at 42 U.S.C. § 1973)⁸. This Court is now placed in the unusual position of retracing the steps of the DeGrandy Court to determine whether the creation of District Three was required under a correct reading of Section 2 of the Voting Rights Act.

The DeGrandy plaintiffs alleged in their complaint that “[t]he current districts [in the existing 1982 redistricting plan] for each and every state legislative and congressional district violate the Voting Rights Act of 1965, as amended, because the plans, taken as a whole, dilute the voting strength of minority voters statewide.” DeGrandy 2nd Am. Compl. at ¶ 100. In addition, the DeGrandy plaintiffs asserted that “[p]ursuant to the 1990 decennial census, and in accordance with the Fourteenth and Fifteenth Amendments, and the Voting Rights Act, minority voting strength must not be diluted and districts must be created to ensure racial and language minority-majority and minority - influence districts.” DeGrandy 2nd Amd. Compl. at ¶ 103 (emphasis added).

In reviewing the DeGrandy plaintiffs’ Section 2 claim, the DeGrandy court found that “the absence of an existing plan prevents the court from engaging in the factually intensive analysis of a traditional section 2 challenge ...” 794 F.Supp. at 1083.⁹ The DeGrandy court obviously considered the Section 2 claim in the context of the malapportionment in Florida’s congressional districts in the aftermath of the 1990 decennial census. However, beyond malapportionment (which affected voters of all races and ethnicities), the DeGrandy court merely stated that “[t]he absence of a meaningful opportunity for minorities to participate in the political process and elect a candidate of their choice constitutes a violation of section 2 of the Voting Rights Act.” DeGrandy, 794 F.Supp. at 1080. The DeGrandy court supported its conclusion with several very general findings: past effects of discrimination against minorities; disparities in socio-economic conditions; the existence of varying degrees of racially polarized voting in Florida; the lack of minority success in both the United States Congress and the Florida Legislature; and the fact that certain Florida counties had to be precleared by the Justice Department pursuant to the Voting Rights Act. See 794 F.Supp. at 1078-80. As discussed below, these general findings are simply insufficient to support a vote dilution claim under a proper interpretation of the Voting Rights Act, which requires a “comprehensive, not limited, canvassing of relevant facts.” Johnson v. DeGrandy, 512 U.S. at —, 114 S.Ct. at 2657.¹⁰

The essence of a claim under Section 2 of the Voting Rights Act requires “that a certain electoral law, practice, or structure interacts with social and historical conditions to cause an inequality in the opportunities enjoyed by black and white voters to elect their preferred representatives.” Gingles, 478 U.S. at 47, 106 S.Ct. at 2764. Thus, a plaintiff must prove three threshold criteria when challenging a redistrieting scheme: (1) the minority group is sufficiently large and geographically compact to constitute a majority in a single-member district; (2) the minority group is politically cohesive; and (3) the minority’s preferred candidate is usually defeated by white majority bloc voting. Id. at 50-51, 106 S.Ct. at 2766. In addition, various non-statutory criteria are set out in the Senate Report accompanying Section 2, including the history of official discrimination, the socio-economic conditions that hinder the ability to participate effectively in the political process, and the electoral success of members of the minority group. See S.Rep. No. 417, 97th Cong., 2d Sess. 206-07 (1982), reprinted in 1982 U.S.C.C.A.N. at 206-07. These criteria will each be addressed in turn.

a. Geographic Compactness:

Upon review of the DeGrandy record and all of the relevant evidence presented at the trial in this case, it is evident that the African-American population in Northeast Florida is not sufficiently large and geographically compact so as to constitute a majority in a fairly drawn congressional district. Using 1990 census data, District Three contains 562,518.5 persons, with 55.0% being African Americans. African-Americans in Northeast Florida are divided into four major population concentrations. The largest populations of African-Americans are at the extremes of Congressional District Three— namely, 133,068 in Duval County (Jacksonville), and 73,669 in Orange County (Orlando), some 100 miles to the south. Other concentrations of African-Americans in District Three include: 23,248 in Volusia County (Daytona Beach), at the coast of the Atlantic Ocean; 21,722 in Alachua County (Gaines-ville), in the western arm of District Three; 14,474 in Marion County; and 13,780 in Seminole County. These African-American population concentrations are not physically adjacent to each other, and are linked together only by narrow land bridges of white rural and small town populations. Weber Rep., Pls.’ Ex. 3 at ¶ 8, Weber Test., Tr. at 416. In drawing the district, the African-American population concentrations in major urban areas were segregated from the adjoining white populations, thereby excluding from District Three most white voters within these urban areas. See Lichtman Test., Tr. at 630.

In order to achieve its goal of creating a minority-majority district in northeast Florida, the DeGrandy court was forced to link these widely dispersed population concentrations together.¹¹ In so doing, however, the DeGrandy court created a district that splits every one of the fourteen counties¹² that constitute the district.¹³ Weber Test., Tr. at 424. District Three also divides nearly every town in its path, even splitting individual precincts. Lichtman Test., Tr. at 339, 388, 628-33; Maggiotto Test., Tr. at 612. As Judge Vinson noted in DeGrandy, “District 3, in north Florida, has the appearance of something lifted from a Rorschach test. It wanders, web-like, from south of Orlando throughout northeast Florida.” 794 F.Supp. at 1090-91.¹⁴ Judge Vinson also noted:

These odd-shaped districts will present administration difficulties. The census tracts utilized in drawing the districts overlap established voting precincts and will not easily jibe with other state and local district boundaries. They are disconnected from the traditional way we view the formation of such districts. They follow few recognized political boundaries. They will undoubtedly present campaigning problems for the candidates within those districts. Perhaps most importantly, I do not believe that these districts will make sense among the public. They appear to be something created by Gov. Elbridge Gerry.

Without some objective geographical compactness standard to evaluate districts, the potential for future abuse in crafting district boundaries is virtually unlimited---- I would much prefer 23 districts which comply with some reasonable standard of compactness.

Id. at 1092 (citations omitted).

Moreover, by any number of quantitative measures of compactness commonly used in political science, Congressional District Three ranks among the least compact dis tricts in the country. According to the Congressional Research Service, a branch of the Library of Congress, District Three has a perimeter score¹⁵ of 0.011, which ranks 434th out of 435 congressional districts. District Three’s dispersion score¹⁶—0.111, ranks 429th out of 435 districts. Finally, District Three has a population score¹⁷ of 0.260, ranking 428th out of 435 districts. C.R.S. report, appendix A. Further, when these three measures of compactness are averaged together, District Three has the highest mean ranking, and is the least compact, of any congressional district in the country. Weber Test., Tr. at 423.

Consequently, we conclude that the African-American population is not sufficiently large and geographical compact to meet the first Gingles precondition for establishing vote dilution in violation of Section 2 of the Voting Rights Act.

b. Political Cohesiveness:

The evidence in both DeGrandy and this case leave no doubt that African-Americans in Florida, and particularly in District Three, are politically cohesive. This Gingles factor has definitely been established.

c. Racially Polarized Voting:

The DeGrandy court concluded that racially polarized voting exists in Florida, and in the areas comprising District Three, but the Court’s opinion cites little evidence in support. Although this does not mean that such polarized voting does not in fact exist, it does indicate that the DeGrandy court failed to engage in a “comprehensive, not limited, canvassing of relevant facts” [Johnson v. DeGrandy, 512 U.S. at —, 114 S.Ct. at 2657], to reach such a conclusion. Such an examination requires a close analysis of racially polarized voting in the political unit or subdivision being challenged.¹⁸ Absent the requisite “ ‘majority bloc voting’ showing[ ] ... needed to establish that the challenged districting thwarts a distinctive minority vote by submerging it in a larger white voting population, ... there neither has been a wrong nor can be a remedy.” Growe, 507 U.S. at 40-41, 113 S.Ct. at 1084.

The DeGrandy court's only statement concerning this was that "[t]he results of Florida's legislative elections over the past ten years establish the presence of racially polarized voting," citing Florida's Supreme Court Chief Justice Shaw's dissenting opinion in In re Constitutionality of Senate Joint Resolution 2G, Special Apportionment Session 1992, 597 So.2d 276, 287-93 (Fla.1992). DeGrandy, 794 F.Supp. at 1079. However, the Eleventh Circuit recently emphasized that a district court's fact-findings in a vote-dilution case must be based upon evidence presented in that case, and not something from another case [Johnson v. DeSoto County Bd. of Comm'rs, 72 F.3d 1556, 1560-61 (11th Cir. 1996)], particularly an opinion expressed in dissent. Even if Chief Justice Shaw's observations could have been applied in DeGrandy¹⁹, Justice Shaw concluded that racially polarized voting existed on the basis of electoral results showing that only five African-Americans were elected to the state legislature between 1982 and 1990, with no tangible evidence that dilutive white-bloc voting or similar causal relationship with a voting practice or structure led to these results. See 597 So.2d at 290-91. The DeGrandy court did not identify any other evidence of racially polarized voting, including the "district-specific" analysis demanded by Gingles. See SCLC, 56 F.3d at 1305 (Hatchett, J., dissenting).²⁰

This limited analysis may have been due to the Court’s understanding that “[t]he parties agree that racially polarized voting exists throughout Florida to varying degrees.” De-Grandy, 794 F.Supp. at 1079. Counsel for the NAACP made this very point in closing argument. Nevertheless, the absence of evidentiary findings by the DeGrandy court on the issue of racially polarized voting means that we must primarily rely on the evidence presented at trial before us.

Dr. Allan Lichtman, a veteran of Voting Rights Act litigation, provided Defendants’ expert testimony on the issue of whether racially polarized voting existed in northeast Florida in 1992, and continues to exist today. In conducting his analysis, Dr. Lichtman relied upon three primary forms of methodology: ecological regression, extreme case analysis, and an examination of the actual outcome of elections. Dr. Lichtman further relied upon the R2 (or squared-correlation coefficient) and statistical significance to assess the reliability of his regression analysis. On the basis of 60 elections between 1984 and 1994, Dr. Lichtman concluded that significant racial polarization exists in Florida at every political level-— county-wide and State legislative elections, congressional elections, and State-wide elections. Lichtman Rep., Defs.’ Ex. 1; Lichtman Test., Tr. at 325-27, 332-36.

However, we reject Dr. Lichtman’s results because of several critical methodological errors in his analysis. First and foremost, Dr. Lichtman only examined black versus white elections, excluding all black versus black and white versus white elections, even though there was an extensive amount of testimony that the African-American community had a clear candidate of choice in such elections.²¹ Lichtman Test., Tr. at 321, 323-24, 362-67. Furthermore, in part as a result of his first error, Dr. Liehtman disregarded a number of congressional elections that are highly relevant to a determination of whether racially polarized voting precludes African-Americans from electing their candidate of choice in congressional elections. In fact, Dr. Liehtman considered only four congressional elections—three involving Congresswoman Brown’s elections in races against only white opponents. Lichtman Rep., Defs.’ Ex. 1; Lichtman Test., Tr. at 321, 359-62. Finally, Dr. Liehtman failed to consider that differences in white and African-American political party affiliation could explain why racially polarized voting was apparent in a superficial analysis of election results.

While it appears that racially polarized voting exists, at least to some extent, in District Three, this polarization may be a collateral effect of the fact that voters in northeast Florida are ideologically polarized along political party lines. Dr. Lichtman conceded that African-Americans in northeast Florida are overwhelmingly Democrats. Lichtman Test., Tr. at 360.²² This party-line polarization becomes manifest when African-Americans run against whites²³, or against other African-Americans.²⁴ Indeed, the average white crossover rate of 23 percent that Dr. Lichtman found as a result of his very limited analysis [see Lichtman Rep., Defs.' Ex. 1 at Table 2; Lichtman Test., Tr. at 325], might very well be the white Democratic vote that any Democratic candidate, white or African-American, would be expected to receive. This ideological polarization along party lines was articulated by Senator Holzendorf [an African-American], who indicated that she was unaware of a single instance in which a Republican had been the candidate of choice among African-Americans in Duval County because "[t]hey haven't given the right message, yet." Holzendorf Test., Tr. at 82.

Finally, and most importantly, the evidence demonstrates that African-Americans have consistently elected the candidate of their choice in congressional elections in northeast Florida under the 1982 districting plan: Congressmen Bill Fuqua and Bill Grant (while he remained a Democrat), from District Two²⁵; Congressman Charles Bennett, from District Three; and Congressman Bill Chappell, from District Four. Holzendorf Test., Tr. at 78-81; Hill Test., Tr. at 502. An important truth is that a candidate of choice does not have to be a candidate of the same race.²⁶ Therefore, even if racially polarized voting existed in northeast Florida specifically, or more generally throughout Florida, the ability of African-American voters to elect the candidate of their choice in congressional elections would vitiate any claim of Section 2 vote dilution.²⁷

d. Past History of Discrimination:

At the trial of this matter, several witnesses testified as to Florida’s history of discrimination. Dr. Paulson (Defendants’ expert in political parties and elections, civil rights, and southern politics) discussed at length the past use of such mechanisms as multiple ballot box laws, tissue ballots or “little jokers,” the secret ballot, the “white primary,” the poll tax, run-off elections, at-large elections, multiple-member elections, and gerrymandering as examples of discriminatory practices employed by the State of Florida to prevent African-Americans from having a political voice. Paulson Test., Tr. at 9-34; Defs.’ Ex 6B. Other witnesses, including Mr. Samuel Muldrew, Mr. Lloyd N. Pearson, Mr. Glynell Presley, and Mr. Willie H. Williams, testified about their own personal difficulties in registering to vote and exercising their rights to vote in the past. In addition, Mr. Leon Russell, President of the Florida State Branches of the NAACP, testified about the past use of harassment and intimidation to prevent African-Americans from participation in the electoral process.²⁸

This Court previously took judicial notice of the fact that "Florida's past history of racial discrimination is well documented" (Doc. 91 at 53). Mortham, 915 F.Supp. at 1552 (citations omitted). Past discrimination itself is relevant in determining whether a violation of the Voting Rights Act has occurred. E.g., McMillan v. Escambia County, Fla., 748 F.2d 1037, 1043-44 (5th Cir. 1984)²⁹; United States v. Marengo County Comm'n, 731 F.2d 1546, 1567 & n. 36 (11th Cir.), appeal dismissed, cert. denied, 469 U.S. 976, 105 S.Ct. 375, 83 L.Ed.2d 311 (1984). Yet, the effects of past discrimination alone are insufficient to establish a Section 2 violation. League of United Latin Am. Citizens, Council No. 4434 v. Clements ("LULAC II"), 999 F.2d 831, 866-68 (5th Cir.1993) (en banc), cert. denied, — U.S. —, 114 S.Ct. 878, 127 L.Ed.2d 74 (1994). In this case, we find no evidence of any existing voting practice in Florida that discriminates against African-Americans or other racial or ethnic minority groups. Holzendorf Test., Tr. at 95; Witt Test., Tr. at 157; Presley Test., Tr. at 181; Guthrie Test., Tr. at 250; Lichtman Test., Tr. at 358; Engstrom Test., Tr. at 484. See also Tommie Bell Dep., Pls.' Ex. 6; Beverly Hill Dep., Pls.' Ex. 9; Deanie Lowe Dep., Pls.' Ex. 10. Dr. Paulson stated as much in his testimony³⁰. Absent proof of any existing discriminatory voting practice, the presence of remote — albeit pervasive — instances of discrimination does little to bolster Defendants' case.

e. Socio-Economic Disparities:

Defendants and Defendant-Intervenors also presented a great deal of expert testimony concerning socio-economic disparities between whites and African-Americans in District Three. Dr. Paulson and Dr. Richard Engstrom (Defendants’ expert in elections systems and minority politics) reported the disparities between whites and African-Americans in unemployment rates, high school and college graduation rates, income,the number of persons in housing units without vehicles, and the percentage of households below the poverty level. Engstrom Rep., Defs.’ Ex. 3; Paulson Rep., Defs.’ Ex 6B; Defs.’ Ex. 10, Tab 2. We find that these socioeconomic disparities are not unique to District Three, to Florida, or to the South, but rather more generally reflect the socioeconomic differences between whites and African-Americans in similar districts throughout the country. See David Bositis, The Congressional Black Caucus in the 103rd Congress (1994).

Nevertheless, we will take judicial notice of the fact that there are significant socio-economic disparities in Florida between white and African-American citizens, much of which may be a result of past discrimination. We do recognize that this is not evidence of a Voting Rights Act violation unless it is coupled with proof that participation in the political process is in fact depressed among minority citizens. See LULAC II, 999 F.2d at 866. The reason for showing decreased voter participation is because “[t]he Voting Rights Act and Fifteenth Amendment apply only to racial discrimination, not discrimination based on socio-economic status.” Howard v. Kelly, No. 93-900, 1994 WL 118211, at *1 (D.D.C. Mar. 31, 1994).

Voter registration rates for whites and African-Americans are now essentially the same in District Three.³¹ Overall, African-Americans in District Three make up 50.6 percent of the voting age population (“VAP”) and have a voter registration rate of 50.6 percent, compared to non-Hispanic whites in District Three, who make up 47.6 percent of the VAP and have a voter registration rate of 48.8 percent. See Attachment G to DeGrandy Independent Expert Report (92-40015, Doc. 388). In Duval County, where 52 percent of District Three’s registered voters reside [Paulson Test., Tr. at 38], African-Americans of VAP actually have a higher voter registration rate than whites—64.6 percent compared to 62.0 percent. Engstrom Rep., Defs.’ Ex. 3 at App. A; Engstrom Test., Tr. at 482. State-wide, African-Americans have an overall voter registration rate of 50.95 percent, compared to the overall state registration rate of 53.72 percent of the VAP—a difference of 2.77 percent. See id. This minor difference between African-American voter registration rates and statewide voter registration rates leads the Court to conclude that participation in the political process is not depressed among African-American voters at a statistically significant level. Furthermore, the testimony of Mr. Lloyd Pearson, an African-American who over the course of thirteen years single-handedly registered over 40,000 people (most of whom are African-Americans)³² [Pearson Test., Tr. at 521], belies Defendants’ argument that socioeconomic disparities hamper voter registration in the African-American community.

On the other hand, voter turnout among African-American voters has undoubtedly been lower than turnout among white voters in Florida. We must note, however, that much of the turnout data, especially the data supplied by Dr. Engstrom, is highly questionable ³³. Similarly, the turnout data provided by Plaintiffs’ expert, Dr. Michael Maggiotto, which shows that turnout in District Three among African-Americans was significantly higher than among whites [see Maggiotto Rep. Pls.’ Ex. 15 at 6], is methodologically unsound because Dr. Maggiotto failed to adjust for split-precincts that included voters residing outside the District. Lichtman Test., Tr. at 338-40, 623-36. More reliable figures were provided by Dr. David Bositis, Defendants’ expert in congressional politics and race and representations, although these figures obviously were unavailable to the De-Grandy court at the time Distinct Three was drawn³⁴. Dr. Bositis showed that in District Three, turnout among African-American VAP was 45.7 percent in 1992 and 41.2 percent in 1994, compared to white VAP turnout of 52.7 percent in 1992, and 57.6 percent in 1994.³⁵ Statewide, turnout among African- American VAP was 46.3 percent in 1992 and 29.7 percent in 1994, compared to white VAP turnout of 59.7 percent in 1992 and 45.0 percent in 1994. Bositis Rep., Defs.’ Ex. 4 at Table 1; Bositis Test., Tr. at 204. Some of this lower turnout is accounted for by the slightly lower (2.77%) voter registration rates among African-American voters. Other reasons, such as voter apathy, may also play a role in lower turnout. Regardless of the reasons for lower voter turnout, the following discussion reflects that African-Americans have been able, and continue to be able, to elect the candidates of their choice in elections in spite of lower turnout.

Consequently, the Court finds that notwithstanding their lower socio-economic status, African-Americans in Florida now enjoy equal access to and participation in the political process.

f. Lack of Electoral Success:

The DeGrandy court also pointed to the lack of electoral success by African-American candidates in Florida³⁶. The court correctly acknowledged that the 1982 amendments to the Voting Rights Act adopted a result-oriented test³⁷, concluding that “[plaintiffs demonstrate a violation of the Act only when equal access to the political process has been denied.” DeGrandy, 794 F.Supp. at 1082. There is no dispute about African-Americans’ lack of electoral success in years past. However, the absence of past electoral success in elections is not dispositive; rather, it is merely evidence of vote dilution that has denied plaintiffs equal access to the political process³⁸. Compare with Johnson v. DeGrandy, where the Supreme Court held:

Lack of electoral success is evidence of vote dilution, but courts must also examine other evidence in the totality of the circumstances, including the extent of the opportunities minority voters enjoy to participate in the political processes. To be sure, some § 2 plaintiffs may have easy cases, but although lack of equal electoral opportunity may be readily imagined and unsurprising when demonstrated under circumstances that include the three essential Gingles factors, that conclusion must still be addressed explicitly, and without isolating any other arguably relevant facts from the act of judgment

512 U.S. at-, 114 S.Ct. at 2657 (emphasis added) (internal citations omitted). See also McWherter, 877 F.Supp. at 1108 (“We agree with the conclusion reached by other federal courts that findings of racial polarization and historical inequality do not necessarily result in a violation of Section 2 of the Voting Rights Act. This is true even when a reappoftionment plan does not provide for substantial proportionality.”). As discussed above, the DeGrandy court’s failure to engage in a fact-intensive inquiry and findings on racially-polarized voting patterns in Florida prevents us from now concluding that application of the Gingles totality of the circumstances test supported a finding of Section 2 liability.

Moreover, the evidence presented at trial shows that African-Americans do in fact enjoy considerable electoral success in District Three and Florida—even within majority white districts—because of significant crossover by white voters. For example, State Senator Betty Holzendorf, an-African-American, testified that she received 78.1 percent of the vote against a white candidate, even though the VAP of her district is 44.7 percent African-American and 53 percent white. Holzendorf Test., Tr. at 74-75. And Senator Holzendorfs election is not an anomalous or isolated event. State Representative Alzo Reddick won in a district that has a 46.2 percent African-American VAP. Lichtman Test., Tr. at 390. State Senator Arnette Girardeau was elected in a northeastern Florida district that had little more than a forty percent African-American VAP. State Representative Cynthia Chestnut won in a district that is only 28 percent African-American. Holzendorf Test., Tr. at 76-77; Lichtman Test., Tr. at 389-90. Nate Glover won an overwhelming majority of the vote in the first at-large primary when he was elected Sheriff of Duval County, in which African-Americans comprise fewer than 24 percent of the registered voters. Bell Dep., Pls.’ Ex. 6 at 35-36. The testimony is replete with other current examples of electoral success by African-American candidates, at all political levels. See Clifton Test., Tr. at 106; Witt Test., Tr. at 151-52; Presley Test., Tr. at 175, 178-81; Williams Test., Tr. at 510-13. See also Bell Dep., Pls.’ Ex. 6; Hill Dep., Pls.’ Ex. 9; Lowe Dep., Pls.’ Ex. 10.

The following exchange underscores the support that African-American candidates receive from white voters:

SEN. HOLZENDORF: .... And so the person that is going to represent the entire county has to be able to bring a concern for all of the people in the county and not just one particular area.

MR. SULLIVAN: So, in other words, for a black to have success in a district that is made up of both blacks and whites, the black candidate has to reach out to the white community?

SEN. HOLZENDORF: That’s correct.

MR. SULLIVAN: And, if they don’t reach out, they don’t get the white vote?

SEN. HOLZENDORF: That’s correct.

MR. SULLIVAN: And a black candidate, like yourself, has to reach out to the white community in order to obtain white votes?

SEN. HOLZENDORF: That’s correct.

Holzendorf Test., Tr. at 83.

In fact, if District Three Representative Corrine Brown had not received such white crossover vote, she would not have been elected. Congresswoman Brown ran against two formidable candidates in 1992 and 1994, Don Weidner and Marc Little. Although African-American turnout in District Three was only 45.7 percent in 1992 and 41.2 percent in 1994 [Bositis Rep., Defs.’ Ex. 4 at Table 1; Bositis Test., Tr. at 204],³⁹ Congresswoman Brown still garnered 59 percent of the vote in 1992 and 58 percent of the vote in 1994—near “landslide” levels of victory. Bositis Test., Tr. at 216-18; Brown Test., Tr. at 299. Therefore, despite past discrimination, we find that African-Americans now enjoy a great deal of electoral success at every political level, even in districts where they comprise only a small portion of the voting age population.

g. Preclearance Of Florida Counties:

The DeGrandy court also pointed out that “[a]s a result of Florida’s past discrimination practices, the United States Justice Department must preclear five Florida counties pursuant to Section 5 of the Voting Rights Act ...” 794 F.Supp. at 1079. These counties are Collier, Hardee, Hendry, Hillsborough, and Monroe Counties. 40 Fed.Reg. 43746 (1975); 41 Fed.Reg. 34329 (1976). See 28 C.F.R. pt. 51, App. However, none of these counties are included in District Three. Further, to the extent that the DeGrandy court was addressing a statewide claim under Section 2, there is no evidence that any violations of the Voting Rights Act were then (or are today) present in these preclearance counties. In fact, as discussed below in section II infra, the remedial plan adopted by DeGrandy actually had a retrogressive effect on the ability of African-American voters in some of these five counties to be able to elect the candidates of their choice.

3. Summary:

In sum, to state a “strong basis in evidence” that a Section 2 violation has occurred, there must be some indication that past discrimination has actually hampered the ability of minorities to participate in the political process [LULAC II, 999 F.2d at 866], through interaction with a “certain electoral law, practice, or structure.” Gingles, 478 U.S. at 47, 106 S.Ct. at 2764. There is insufficient evidence to support such a finding in this case. The three primary categories of evidence relied upon by DeGrandy included effects of past discrimination, socioeconomic disparities between whites and African-Americans, and African-Americans’ lack of electoral success. However, as discussed above, the failure of the DeGrandy court to show under the totality of the circumstances how this evidence interacted with the electoral structure being challenged (e.g., the existing redistricting plan) to hamper the ability of African-Americans to participate in the political process, precludes a finding of unlawful vote dilution. As a result, the De-Grandy court lacked the requisite “strong basis in evidence” that a Voting Rights Act violation existed, or that race-based redistricting was required under the Act.

Consequently, Plaintiffs have carried their burden of persuading the Court that the DeGrandy court lacked a compelling interest in drawing District Three in order to comply with the Voting Rights Act.

B. Remedying Present Effects Of Past Discrimination:

There is a significant state interest in eradicating the present effects of past racial discrimination. E.g., Miller, 514 U.S. at —, 115 S.Ct. at 2490; Shaw, 509 U.S. at 654, 113 S.Ct. at 2831; United States v. Paradise, 480 U.S. 149, 167, 107 S.Ct. 1053, 1064, 94 L.Ed.2d 203 (1987) (plurality opinion). Accord Ensley Branch, N.A.A.C.P. v. Seibels, 31 F.3d 1548, 1564-65 (11th Cir. 1994), reh'g en banc denied, 60 F.3d 717. Shaw recognized the possibility that such an interest could be "entirely distinct from the Voting Rights Act." However, there must still be a "`strong basis in evidence for [concluding] that remedial action [is] necessary'" to cure the specific instances of past discrimination. Id. at 654-57, 113 S.Ct. at 2831-32 (citations omitted). See also the citations and analysis contained in Section I(A) of this opinion. "Societal discrimination, without more, is too amorphous a basis for imposing a racially classified remedy." Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 276, 106 S.Ct. 1842, 1848, 90 L.Ed.2d 260 (1986) (plurality opinion). Accord Croson, 488 U.S. at 500, 109 S.Ct. at 725 (plurality opinion). Rather, the discrimination must be identified with some specificity in the electoral law, practice, or structure to which the relief is to apply. Id. at 504, 109 S.Ct. at 727; Peightal v. Metropolitan Dade County, 26 F.3d 1545, 1553 (11th Cir.1994).

As noted above, Florida has a long and unfortunate history of racial discrimination. For too many years, racially motivated voting practices such as the poll tax and the Democratic “white primary” were allowed to make a mockery of the Fifteenth Amendment to the United States Constitution.⁴⁰ Thankfully, such practices have long been abolished and are only a part of Florida’s sad legacy of discrimination. Nevertheless, Defendants maintain that the lingering effects of Florida’s long history of discrimination continue to this day, and that the DeGrandy Court had a compelling interest in remedying those lingering effects. Yet, Defendants and Defendant-Intervenors have presented no evidence of any current voting practice or procedure which denies or impairs the right to vote of African-Americans. Absent such evidence, the DeGrandy court lacked the requisite “strong basis in evidence” that present effects of past discrimination required adoption of a race-based redistricting plan.

In fact, Defendants’ counsel recognized in closing arguments' that the DeGrandy court failed to engage in the requisite fact-intensive analysis of whether any violation of federal law mandated the creation of District Three:

MR. BURR: .... I believe that DeGrandy either was or could have been a remedy case. When I say “remedy case,” obvious ly, I’m not referring to a remedy of a simple one person/one vote malapportionment Problem.

I believe the record in DeGrandy was such that it would have supported a finding, if the DeGrandy court had chosen to make one, that District Three was created as a race-conscious remedy to eradicate the lingering effects of a pervasive pattern of discrimination against black voters and would be black voters in Northeast Florida.

Similarly, the DeGrandy court could have, if it had chosen to do so, rule that the lingering effects of vote dilution in Northeast Florida require, mandated the creation either of District Three or a district very much like District Three in order to avoid a head-on collision to the Voting-Rights Act.

* * * * * *

... I want to hit on one last point, and this is the one I wanted to come back to about, well, if, in fact, the DeGrandy court could have found a Section 2 violation in 1992 and did not, what’s the reason for that? How did that really happen?

And I run the risk of bordering on presumptuousness here in talking to two members of this court who, of course, were members of the panel in DeGrandy, but that is sort of the nature of this case. But it seems to me that the DeGrandy court did not have to make—or did not make findings of a violation of the Fourteenth Amendment or Section 2 simply because it didn’t have to. It wasn’t required to.

By the time the congressional phase of the DeGrandy case ended, all of the parties that were before the court—the House and the Senate and the Democrat[ ]s and the Republicans and the NAACP, and all of the others—basically, everybody was of the same mind, and that was that there should be created in Northeast Florida a congressional district that would give blacks a reasonable opportunity to elect a candidate of their choice. So, it simply was not incumbent upon the court to go ahead and make a difficult and perhaps divisive finding about an issue that all of the parties had agreed to.

Tr. at 679, 686-87 (emphasis added). The Court appreciates counsel’s acknowledgment of what the DeGrandy court did not do. However, this acknowledgment demonstrates a fatal misapprehension of the nature of a federal court’s remedial powers—and effectively ends this case.

In recent years, the federal courts have wrestled with the problem of utilizing affirmative action as a remedy for past racial discrimination. It has been said that "a state has a compelling interest in taking race-based affirmative action where it has a firm basis for concluding that such action is necessary to eradicate the effects of past or present racial discrimination within its own jurisdiction, even when it has no federal statutory mandate to do so." Shaw v. Hunt, 861 F.Supp. at 443-44 (collecting citations). However, such expansive authority does not exist for federal courts that have assumed the redistricting role. "[F]ederal courts may not order the creation of majority-minority districts unless necessary to remedy a violation of federal law." Voinovich v. Quilter, 507 U.S. 146, 156, 113 S.Ct. 1149, 1156, 122 L.Ed.2d 500 (1993) (citing Growe, 507 U.S. at 40-41, 113 S.Ct. at 1084). As Justice O'Connor noted in Missouri v. Jenkins, the reason for this limitation is that

Courts ... are different. The necessary restrictions on our jurisdiction and authority contained in Article III of the Constitution limit the judiciary’s institutional capacity to prescribe palliatives for societal ills. The unfortunate fact of racial imbalance and bias in our society, however pervasive or invidious, does not admit of judicial intervention absent a constitutional violation.... Unlike Congress, which enjoys “ ‘discretion in determining whether and what legislation is needed to secure the guarantees of the Fourteenth Amendment,’ ” federal courts have no comparable license and must always observe their limited judicial role.

— U.S. —, —, 115 S.Ct. 2038, 2061, 132 L.Ed.2d 63 (1995) (O'Connor, J., concurring) (internal citations omitted). The same reasoning applies when a federal court consid ers what remedy to impose⁴¹. Once a constitutional or statutory violation is shown, a federal court must limit its remedy solely to redressing the violation. See generally Milliken v. Bradley, 433 U.S. 267, 279-88, 97 S.Ct. 2749, 2756-61, 53 L.Ed.2d 745 (1977) ("Milliken II") ("the remedy does not `exceed' the violation if the remedy is tailored to cure the `condition that offends the Constitution [or statute].'") (quoting Milliken v. Bradley, 418 U.S. 717, 738, 94 S.Ct. 3112, 3124, 41 L.Ed.2d 1069 (1974) ("Milliken I")); Chisom v. Roemer, 501 U.S. 380, 404, 111 S.Ct. 2354, 2369, 115 L.Ed.2d 348 (1991) (Scalia, J., dissenting) ("Section 2 of the Voting Rights Act of 1965 is not some all-purpose weapon for well-intentioned judges to wield as they please in the battle against discrimination.").

Even assuming the DeGrandy court had a sufficient basis for concluding that present effects of past discrimination resulted in a constitutional or statutory violation (apart from the Voting Rights Act)—which the record does not support—-there is little evidence that the DeGrandy court was in fact motivated by an intent to remedy past discrimination. Instead, the DeGrandy opinion is permeated with language indicating that the DeGrandy court’s focused intent in drawing District Three was to create a second African-American majority-minority district. See 794 F.Supp. at 1085-87, 1091.

In Miller, when the Court confronted a similar absence of evidence that the state actor was pursuing an interest in remedying present effects of past discrimination, the Court instead concentrated on the state actor’s actual motivation: “creating a third majority-black district to satisfy the Justice Department’s preclearance demands.” 514 U.S. at —, 115 S.Ct. at 2490. We will therefore tailor our remaining analysis⁴² to what we find to have been the DeGrandy court’s actual motivation: creation of at least two African-American majority-minority districts, and one African-American influence district, as the DeGrandy court presumed was required under the Voting Rights Act.

Consequently, we must, and do, conclude that plaintiffs have carried their burden of persuading the Court that the DeGrandy court lacked a compelling interest in drawing District Three in order to remedy present effects of past discrimination.

II. Narrowly Tailored:

Based upon the 1990 decennial census results which entitled Florida to four additional congressional seats and the ensuing malapportionment in Florida’s congressional districts, the DeGrandy court found violations of Article I, Section 2 of the United States Constitution [which requires Congressional Redistricting every 10 years], the Equal Protection Clause of the Fourteenth Amendment, the one-person-one-vote principle, and the Voting Rights Act. 794 F.Supp. at 1090. Therefore, the DeGrandy court had the power to fashion a remedial plan narrowly tailored to correct the malapportionment. See, e.g., Milliken II, 433 U.S. at 279-88, 97 S.Ct. at 2756-61. However, the DeGrandy court went beyond correcting malapportionment. Instead, it perceived that the Voting Rights Act required race-based redistricting through the creation of as many African-American majority-minority and minority influence districts as was reasonable and practicable—including District Three. Since we have already concluded that the DeGrandy court lacked a compelling interest in drawing District Three, it is not really necessary to address whether District Three was narrowly tailored to further any compelling interest. Nevertheless, we will engage in such an inquiry to insure that our analysis is complete, recognizing that there may be further judicial review of this matter.

Assuming it had been established that a compelling interest requires race-based redistricting "under a correct reading of the [Voting Rights Act] statute," Miller, 514 U.S. at —, 115 S.Ct. at 2491, any remedial plan must still be narrowly tailored. See id. at —, 115 S.Ct. at 2490. Cf. Dillard v. City of Greensboro, 74 F.3d 230, 234 (11th Cir.1996) (there must be "a sufficient evidentiary basis to establish that the plan is narrowly tailored to remedy that discrimination"); Harvell v. Blytheville Sch. Dist., 71 F.3d 1382, 1391 (8th Cir.1995) (en banc) (same). The remedial plan must, therefore, be limited to correcting the violation in the most narrowly tailored manner — e.g., by narrowly fashioning the remedy for only those practices⁴³ or political units⁴⁴ that actually violate federal law.

To determine whether a remedy is in fact narrowly tailored, the Supreme Court has examined race-based remedial plans under a five factor test: (1) the efficacy of alternative remedies; (2) whether the remedial plan imposes a rigid racial "quota" or just a flexible racial "goal"; (3) the planned duration of the remedial plan; (4) the relationship between the remedial plan's goal for minority representation in the pool of individuals ultimately selected to receive the benefit in question and the percentage of minorities in the relevant pool of eligible candidates; and (5) the impact of the remedial plan on the rights of innocent third parties. Shaw v. Hunt, 861 F.Supp. at 445 (collecting cases). See, e.g., Croson, 488 U.S. at 510-11, 109 S.Ct. at 730-31; Paradise, 480 U.S. at 171, 107 S.Ct. at 1066 (plurality opinion); Wygant, 476 U.S. at 279-84, 106 S.Ct. at 1849-52; Fullilove v. Klutznick, 448 U.S. 448, 510-15, 100 S.Ct. 2758, 2791-93, 65 L.Ed.2d 902 (1980). As the Shaw court pointed out, the second, third, and fourth factors will virtually always be satisfied in the redistricting context. See 861 F.Supp. at 446-48. Consequently, we will turn our attention towards an examination of how District Three fares under the first and fifth factors.

A. Less Race-Based Plans Were Available:

1. Legal Standards:

It has been noted that “[t]he first factor requires the court to decide whether the state could have accomplished its compelling purpose just as well by some alternative means that was either completely race-neutral or made less extensive use of racial classifications.” Shaw v. Hunt, 861 F.Supp. at 445. ' However, since

[a] state ... engaging in race-based redistricting to comply with the Voting Rights Act obviously has no completely race-neutral alternative means of accomplishing that end,.... the primary inquiry ... will therefore be whether the state could have complied with the Act by enacting a redistricting plan which, though race-based made less extensive use of racial classifications than the one it chose.

Shaw v. Hunt, 861 F.Supp. at 445-46 (emphasis in original) (collecting citations). The inquiry, therefore, focuses on two questions: “whether the plan creates more majority- minority districts than is reasonably necessary to comply with the Act, and whether the majority-minority districts it creates contain substantially larger concentrations of minority voters than is reasonably necessary to give minority voters a realistic opportunity to elect representatives of their choice in those districts.” Id. at 446 (citing Hays v. Louisiana, 839 F.Supp. 1188, 1206-08 (W.D.La. 1993), rev’d on other grounds, 514 U.S. —, 115 S.Ct. 2431.⁴⁵

Recently, the Supreme Court has defined the proper contours of the Voting Rights Act in order to further clarify what the Act permits and what it requires with regard to drawing majority-minority districts. The reason for this line of jurisprudence is because the Act had been used by federal courts, the states, and the Department of Justice to create "racially `safe boroughs'" for different racial and ethnic groups. Holder v. Hall, — U.S. —, —, 114 S.Ct. 2581, 2598, 129 L.Ed.2d 687 (1994) (Thomas, J., concurring in the judgment) (quoting United States v. Dallas County Comm'n, 850 F.2d 1433, 1444 (11th Cir.1988) (Hill, J., specially concurring)). As Justice Thomas recognized, "[t]hat practice now promises to embroil courts in a lengthy process of attempting to undo, or at least to minimize, the damage wrought by the system we created." Holder, — U.S. at —, 114 S.Ct. at 2598 (Thomas, J., concurring in the judgment).⁴⁶ Indeed, that is what brings the instant equal protection challenge before the Court. As will be discussed below, the rule from the Supreme Court decisions is clear: Congress did not pass the Voting Rights Act to replace a system of economic and social segregation with a system of political segregation.⁴⁷ Furthermore, to the extent any race-based redistricting plans are required, they must still be narrowly tailored to bring the plan into compliance with constitutional and statutory dictates.

As already discussed, the Supreme Court rejected the creation of a super-majority minority state senate district in Growe, where no Section 2 violation had been shown. The lower court had relied on "[j]udicial experience, as well as the results of past elections" to conclude that the creation of such a district in Minneapolis was necessary "to find that a districting scheme complies with the ... Act." Emison v. Growe, 782 F.Supp. at 440. A unanimous Supreme Court reversed. Growe v. Emison, 507 U.S. 25, 113 S.Ct. 1075, 122 L.Ed.2d 388. The Supreme Court held that the lower court's failure to consider any evidence of racially polarized voting precluded the district court from adopting a remedial plan that included a super-majority minority district. Id. at 39-42, 113 S.Ct. at 1084-85.

In Voinovich v. Quilter, the plaintiffs raised an “influence-dilution” claim, contending that a state reapportionment plan that packed African-American voters into a few districts with large African-American VAPs, deprived them of influence districts which they were otherwise entitled to under Section 2. The Supreme Court first assumed that such a challenge was cognizable under the Voting Rights Act. 507 U.S. at 152-54, 113 S.Ct. at 1154-56. But the Court held that the trial court erred in holding that the Act precludes creation of majority-minority districts absent the necessity to use such districts to remedy a violation of Section 2. The CouxT reasoned:

Section 2 contains no per se prohibitions against particular types of districts: It says nothing about majoxity-minority districts, districts dominated by eei’tain political parties, or even districts based on pax'tisan political concerns. Instead, Section 2 focuses exclusively on the consequences of apportionment. Only if the apportionment scheme has the effect of denying a protected class the equal opportunity to elect its candidate of choice does it violate Section 2; where such an effect has not been demonstrated, Section 2 simply does not speak to the matter. Indeed, in Gingles we expressly so held: “[Electoral devices ... may not be considered per se violative of Section 2. Plaintiffs must demonstrate that, under the totality of the circumstances, the devices result in unequal access to the political process.” As a result the District Court was required to determine the consequences of Ohio’s apportionment plan before ruling on its validity; the failure to do so was error.

507 U.S. at 155, 113 S.Ct. at 1156 (citation omitted) (emphasis added). Unlike federal courts, states do not have to find a statutory or constitutional violation before adopting majority-minority districts, and the states' choices must be respected absent a violation of federal law. Id. at 156-67, 113 S.Ct. at 1156-57. Therefore, the Quilter Court reversed the lower court's finding of Section 2 liability, noting that if the lower court had applied the Gingles test, it would have had to reject the plaintiffs' claim because there had been no showing of white majority bloc voting. Id. at 157-58, 113 S.Ct. at 1157-58.

In Johnson v. DeGrandy, the Supreme Court examined the Florida legislative reapportionment plan adopted by the same DeGrandy court that adopted District Three. The three-judge court had found that the Florida House reapportionment was deficient because it failed to maximize the number of Hispanic super-majority districts. See DeGrandy v. Wetherell, 815 F.Supp. 1550, 1580 (N.D.Fla.1992). On appeal, the Court specifically addressed the question of whether Section 2 requires a state to affirmatively gerrymander districts in order to maximize minority voting, and answered in the negative. 512 U.S. at —, —, 114 S.Ct. at 2660, 2662. As Justice O'Connor noted in her concurring opinion:

The critical issue in this case is whether Section 2 of the Voting Rights Act ... requires courts to `maximize' the number of districts in which minority voters may elect their candidates of choice. The District Court, applying the maximization principle, operated on the apparent assumption that what could have been done to create additional Hispanic super-majority districts should have been done. The Court today makes clear that the District Court was in error, and that the Voting Rights Act does not require maximization of minority voting strength.

512 U.S. at —, 114 S.Ct. at 2664 (O'Connor, J., concurring) (emphasis added)⁴⁸. Accordingly, the Supreme Court found that the three-judge court "misjudged the relative importance of the Gingles factors and of historical discrimination, measured against evidence tending to show that in spite of these facts, [the reapportionment plan] would provide minority voters with an equal measure of politi cal and electoral opportunity." Id. at —, 114 S.Ct. at 2658.

Finally, we must briefly return to Miller v. Johnson, 514 U.S. —, 115 S.Ct. 2475, 132 L.Ed.2d 762.⁴⁹ In Miller, just as in DeGrandy, the Department of Justice adopted a maximization policy⁵⁰. It refused to preclear Georgia's redistricting plan unless it included African-American majority-minority districts in proportion to their numbers in Georgia's total population⁵¹. The Court found that the Justice Department's policy, which led to the creation of the challenged district, was "not required by the Voting Rights Act under a correct reading of the statute." Id. at —, 115 S.Ct. at 2491⁵². The Supreme Court pointed out that Georgia's earlier plans were "ameliorative," e.g., they increased the number of majority-minority districts from 1 out of 10 to 2 out of 11, and these plans could therefore not "`violate § 5 unless the new apportionment itself so discriminates on the basis of race or color as to violate the Constitution.'" Id. at —, 115 S.Ct. at 2492 (quoting Beer v. United States, 425 U.S. 130, 141, 96 S.Ct. 1357, 1363, 47 L.Ed.2d 629 (1976)). Since the Georgia legislature did not have a discriminatory intent in only seeking to create two African-American majority-minority districts, the Court found the plans could not have violated Section 5. Miller, 514 U.S. at —, 115 S.Ct. at 2492-94. As a result, the challenged district was not narrowly tailored to further a compelling interest, and the Miller court therefore affirmed the lower court's finding that the district violated the Fourteenth Amendment.

2. Analysis Under These Legal Standards:

The recent Supreme Court decisions demonstrate that in this case, the DeGrandy court made several errors of constitutional magnitude in engaging in race-based redistricting to create District Three. First, as already discussed in section I, the DeGrandy plaintiffs' vote dilution claim was moot after the DeGrandy court declared the 1982 redistricting plan to be unconstitutionally malapportioned. Cf. Growe, 507 U.S. at 39, 113 S.Ct. at 1083-84. Second, even if the claim remained viable, the DeGrandy court's failure to examine any evidence of vote dilution precludes a finding of Section 2 liability which necessitated creation of majority-minority districts such as District Three. See, e.g., Johnson v. DeGrandy, 512 U.S. at —, 114 S.Ct. at 2656-62; Quilter, 507 U.S. at 157-58, 113 S.Ct. at 1156; Growe, 507 U.S. at 39-42, 113 S.Ct. at 1084-85. The DeGrandy court's remedy fails under these standards set by the Supreme Court.⁵³

It is true that the DeGrandy court did not employ a strict maximization policy. In fact, if DeGrandy had applied such a policy, it could possibly have created as many as 5 African-American majority-minority districts and 5 Hispanic majority-minority districts based upon the YAP (43.4% of the total districts), or 6 African-American majority districts and 5 Hispanic majority districts based upon population (47.8% of the total districts). Adoption of such a plan would have given these two racial and ethnic groups, which comprise 23.15% of the VAP and 25.77% of the population, control of 43.4% of the districts based on VAP and 47.8% of the districts based on population— effective political power of at least 85 percent above these groups’ numerical strength. See Attachment G to DeGrandy Independent Expert Report.

While the DeGrandy court did not engage in a maximization policy, it did pursue the very type of defacto proportional representation that the Supreme Court has since disapproved.⁵⁴ See generally DeGrandy, 794 F.Supp. at 1091 (Vinson, J., specially concurring) ("It is not our goal, therefore, under Section 2 of the Act to draw as many minority districts as possible. But we should draw as many as can reasonably be done."). See also id. at 1085-87. Instead of looking at the consequences of adopting an alternative redistricting plan that would not have been as race-based as the one that created District Three, the DeGrandy court believed it had to create as many African-American majority-minority and minority influence districts as possible to comply with Section 2. The decisional law shows that this was an erroneous belief. See Miller, 514 U.S. at —, 115 S.Ct. at 2492-94; Johnson v. DeGrandy, 512 U.S. at —, 114 S.Ct. at 2659; Quilter, 507 U.S. at 155, 113 S.Ct. at 1156.

Moreover, the DeGrandy court was offered other more narrowly tailored plans that were less race-based and more cognizant of traditional race-neutral redistricting criteria. To the extent that these plans created fewer than two African-American majority-minority districts and one African-American minority influence district, they were summarily rejected. See DeGrandy, 794 F.Supp. at 1086-87. However, the DeGrandy court apparently relied upon an erroneous assumption that its failure to create a proportional number of African-American majority-minority and influence districts would violate Section 2 of the Act. This assumption has since been repudiated by the Supreme Court.

Furthermore, several of the plans considered by the DeGrandy court were submitted by the Florida Legislature or members of the Legislature. The Independent Expert properly noted that the only plan passed by the Legislature, the Wetherell Plan, was not a "legislative plan" because it was only passed by one house of Florida's bicameral legislature. DeGrandy Independent Expert Report at 26. However, the DeGrandy court improperly discounted the state's interests in these separate plans, including the Wetherell Plan. It is well-established that a court considering adoption of a redistricting plan must give "full deference" to a state-sponsored plan: "[I]n the absence of any finding of a constitutional or statutory violation with respect to those districts, a court must defer to the legislative judgments the plans reflect, even under circumstances in which a court order is required to effect an interim legislative apportionment plan." Upham v. Seamon, 456 U.S. 37, 40-41, 102 S.Ct. 1518, 1521, 71 L.Ed.2d 725 (1982) (per curiam). ⁵⁵ In other words, a court "should follow the policies and preferences of the State, expressed in statutory and constitutional provisions or in reapportionment plans proposed by the state legislature, whenever adherence to state policy does not detract from the requirements of the Federal Constitution." White v. Weiser, 412 U.S. 783, 795, 93 S.Ct. 2348, 2354, 37 L.Ed.2d 335 (1973). Decisions made by "the legislature in pursuit of what are deemed important state interests ... should not be unnecessarily put aside in the course of fashioning relief...." Id. at 796, 93 S.Ct. at 2355. Even so, that is precisely what the DeGrandy court did in rejecting out of hand the various proposals offered by the various legislative representatives and the plan adopted by the Florida House of Representatives.

For example, in addressing the Wetherell Plan (see 92-40015, Doc. 165), which would have created one African-American VAP majority district and two African-American influence districts, the DeGrandy court rejected it because it

... placed policy considerations ahead of strictly legal ones. Thus, the plan elevates the secondary criteria of compactness, coherent communities of interest, and respect for traditional political boundaries over the primary principle of ensuring that minority voting strength is not diluted.

794 F.Supp. at 1087. However, in so holding, the DeGrandy court simply misapprehended what the Voting Rights Act allowed, as opposed to what the Act required. Consequently, the State’s significant interests in maintaining its traditional redistricting values were sacrificed whenever those interests came into conflict with the DeGrandy court’s underlying goal of creating three African-American majority-minority and influence districts.

Defendants’ expert, Dr. Richard Scher, testified about the redistricting values that Florida relied upon at the time of the De-Grandy decision. Dr. Scher first pointed out that “[t]he only districting criteria that is actually mentioned in either of the [1885 and 1968 Florida] constitutions was contiguity.” Scher Test., Tr. at 109-10. Other districting criteria, not specifically required by Florida’s Constitution, include compactness, preservation of county lines and other political boundaries, protection of incumbents⁵⁶, equality of population⁵⁷, and partisan politics⁵⁸. The combined effect of these criteria on redistricting plans adopted from 1972 onward caused the preservation of county lines and other political boundaries to increasingly be sacrificed. Scher Test., Tr. at 115-16. In addition, Dr. Scher opined that in 1992 “the enforcement of the Voting Rights Act was added to the mix and, obviously, complicated matters.” Scher Test., Tr. at 116.

Dr. Scher, John Guthrie, staff director of the Florida Senate Committee on Reapportionment in 1992, and Mr. Leon Russell, head of the Florida NAACP⁵⁹, suggested in their testimony that the Florida Legislature intended to create an African-American majority-minority district in northeastern Florida to further the state’s redistricting interest of complying with the Voting Rights Act. However, the record belies this view.

Although District Three was based in large part on the Margolis Plan⁶⁰, Dr. Scher’s testimony indicates that the Republicans in the State Senate were more interested in aggregating Democrats in a single district in northeastern Florida than in creating an African-American majority-minority district. Dr. Lichtman’s testimony supports this view.⁶¹ In fact, the Republicans’ desire to minimize Democratic voting strength shows just how politics made strange bedfellows in the 1992 redistricting process, as Republicans joined with African-American Democrats in an attempt by each group to enhance their own political power.⁶² The Department of Justice aided this effort by contending (as it still seems to be doing) that the Voting Rights Act required the creation of a majority-minority African-American district in northeast Florida.⁶³

However, by drawing District Three in a manner that packed African-Americans and Democrats together, the Court sacrificed the state’s important interest in compactness and thereby exceeded its remedial powers under Gingles. The Demoeratic-eontrolled Florida House of Representatives⁶⁴ strongly objected to the creation of District Three on this very basis:

The House defendants contend that the Special Master ignored the first requirement of the three-prong test in Gingles ... Specifically, the “grotesquely” shaped north Florida majority-minority district in the Special Master’s plan (District 3) flaunt’s Gingles’s requirement that the African-American minority be “sufficiently large and geographically compact to constitute a majority in a single-member district.”---- District 3 is a political unit incapable of meaningful representation and indicates that the Special Master improperly sought to achieve proportional representation, contrary to the provisions of the Voting Rights Act.... Finally, the House defendants contend that the independent expert and Special Master chose a “separatist” interpretation of the Voting Rights Act. They warn this court against using the ... Act to promote “political apartheid. ”

DeGrandy, 794 F.Supp. at 1089-90 (emphasis added) (summarizing 92-40015, Doc. 427).

The Florida House of Representatives had passed the Wetherell Plan, which had a much more compact district three that included an African-American VAP of 33.3 percent. See Attachment C to DeGrandy Independent Expert’s Report; Defs.’ Ex. 10, Tab 9. Several other plans submitted by members of both houses of the Florida Legislature would have created an African-American influence district in northeastern Florida—not a majority-minority district—with an African-American VAP ranging between 25.0 to 47.5 percent.⁶⁵ Many of these were viable plans that would have corrected a violation of federal law—if in fact one had existed beyond mere malapportionment—in a much narrower fashion. As a result, since less race-based plans were available, District Three cannot pass constitutional muster.

B. Overly Burdensome Impact Of The Race-Based Plan On Innocent Third Parties:

District Three is also overly burdensome on the rights of innocent third parties. The DeGrandy court’s adoption of a plan that pulled widely separated groups of African-American voters together to form District Three, while enhancing the proportional voice of African-American voters statewide, not only denied equal access to the political process to white voters within District Three, but also to African-American voters outside of District Three. African-American voters residing outside the two African-American majority-minority and influence districts include: 550,518 persons, or 47.8 percent of the state’s total African-American VAP and 5.5% of the state’s total VAP; and 831,303 persons, or 47.2% of the state’s total African-American population and 6.4% of the state’s total population. See Attachment C to DeGrundy Independent Expert’s Report. Many of these voters may have been able to better form coalitions with persons placed in District Three. Instead, sacrificing their equal rights to vote may well have been the price of attaining fair representation for African-Americans statewide.⁶⁶ In fact, the Spe cial Master noted that the redistricting plan creating District Three had a retrogressive effect on some covered Section 5 counties, but discounted that finding because “the overall plan substantially strengthens minority representation in Florida,.” DeGrandy Special Master’s Report and Recommendation (92-40015, Doc. 411) at 21 (emphasis added).

Defendants and Defendant-Intervenors offered testimony showing that Congresswoman Brown ably represents the interests of all her constituents—both African-American and white. In addition, Congresswoman Brown and other witnesses stated that while campaigning in and representation of District Three posed some logistical problems, District Three is a political unit capable of representation. These statements may all be true. However, they beg the basic question that this Court has to address: whether District Three achieves a compelling interest in the manner most narrowly tailored to avoid infringement of the fundamental rights of innocent third parties. The fact that innocent third parties receive a fair result cannot ameliorate the deprivation of those parties’ fundamental right to equally participate in the political process.⁶⁷

Defendants also submitted a great deal of evidence that District Three possesses socioeconomic commonality and cohesion. See Liehtman Rep., Defs.’ Ex. 1; Engstrom Rep., Defs.’ Ex. 3; Bositis Rep., Defs.’ Ex. 4; Defs.’ Ex. 10; Holzendorf Test.; Bositis Test.; Guthrie Test.; Brown Test.; Lichtman Test.; Hill Test. However, this evidence is somewhat spurious, since the reason so many of District Three’s constituents share common interests is because the De-Grandy court took about six pockets of mostly lower income African-American voters, and tied them together with narrow land bridges containing a high percentage of lower income white voters. Consequently, evidence of socioeconomic similarities has little, if any, relevance in the present strict scrutiny inquiry.

In light of the foregoing, the 'Court finds that the creation of District Three was unduly burdensome on the rights of innocent third parties. Consequently, even if there were no less race-based plan available—which clearly is not the case—District Three cannot be narrowly tailored to further any compelling interest.

C. Summary:

Although the foregoing discussion has addressed the issue of whether District Three satisfies strict scrutiny, the discussion itself is grounded largely in the principles of federalism and separation of powers. See Mort-ham, 915 F.Supp. at 1545 n. 24. Therefore, we deem it appropriate to revisit the former Fifth Circuit’s statement on these principles nearly two decades ago, which still have equal force today:

The Supreme Court has put tight reins on judicial power to reapportion because of the judiciary’s uneasy position in these cases. The least representative branch of the government must take care when it reforms the most representative branch.

We have recognized that race may be considered as a factor in determining whether a proposed apportionment is acceptable .... But we have also held that “safe” seats for the minority are not required of a reapportionment plan in a dilution case.

The district judge must [therefore] be mindful of the impact of the proposed plans on different racial groups. His duty is to avoid both gerrymanders and racial dilution requires that much. The judge must analyze the plan and determine that the probable results are such that minority strength is not diluted. But this legitimate concern with the outcome cannot justify a strict proportionality brought about by manipulation of district lines. If the plan passes the dilution test, ... race is no longer an important factor. The boundaries should be drawn with an eye to compactness, contiguousness, and the preservation of natural, political, and traditional boundaries; Not racially balanced representation. We are not legislatures.

Marshall v. Edwards, 582 F.2d 927, 934, 936-37 (5th Cir.1978)⁶⁸, cert. denied, 442 U.S. 909, 99 S.Ct. 2820, 61 L.Ed.2d 274 (1979), appeal after remand, 629 F.2d 425 (5th Cir.1980), cert. denied, 452 U.S. 938, 101 S.Ct. 3080, 69 L.Ed.2d 952 (1981) (internal citations omitted) (emphasis added).

Furthermore, it has also become painfully obvious to us that the creation of majority-minority districts cannot be utilized as a panacea for all of the existing socio-economic divisions between various racial and ethnic groups. Such a use requires acting “on the implicit assumption that members of racial and ethnic groups must all think alike on important matters of public policy and must have their own ‘minority preferred’ representatives holding seats in elected bodies if they are to be considered represented at all.” Holder, — U.S. at —, 114 S.Ct. at 2597 (Thomas, J., concurring in the judgment). However, this assumption merely perpetuates racial stereotypes that are at war with the very notions of equality:

“[wjhen racial or religious lines are drawn by the State, the multiracial, multireligious communities that our Constitution seeks to weld together as one become separatist; antagonisms that relate to race or to religion rather than to political issues are generated.... Since that system is at war with the democratic ideal, it should find no footing here.”

Shaw v. Reno, 509 U.S. at —, 113 S.Ct. at 2827-28 (quoting Wright v. Rockefeller, 376 U.S. 52, 67, 84 S.Ct. 603, 611, 11 L.Ed.2d 512 (1964) (Douglas, J., dissenting)). Moreover, "[r]acial classifications with respect to voting carry particular dangers. Racial gerrymandering, even for remedial purposes, may balkanize us into competing racial factions" [Shaw, 509 U.S. at —, 113 S.Ct. at 2833] that strike at the very heart of achieving a color-blind society.

This Court cannot condone the use of remedial statutes, such as the Voting Rights Act, in a manner that, paradoxically, exacerbates racial tensions through the perpetuation of stereotypical notions. It is one thing for a racial or ethic minority to show a court that some political structure or process denies them equal access to the political process, thereby requiring imposition of a remedial plan. It is completely different where, as here, a racial or ethnic group cannot point to any such structure or process. Under such circumstances, a court lacks constitutional authority to adopt a remedial measure. Furthermore, when a remedial plan is necessary, it must be limited solely to the eradication of the structure or process that offends the Constitution. Remedial plans cannot be used to immunize minority voters "from the obligation to pull, haul, and trade to find common political ground, the virtue of which is not to be slighted in applying a statute meant to hasten the waning of racism in American politics." Johnson v. DeGrandy, 512 U.S. at —, 114 S.Ct. at 2661.

Consequently, plaintiffs have carried their burden of persuasion under both parts of the strict scrutiny test, and are entitled to judgment.⁶⁹

III. Remedy:

Throughout the course of this litigation, plaintiffs have suggested several re medial measures. Only one is appropriate. The Constitution expressly provides for redistricting by states, not the federal courts. See U.S. CONST. art. I, § 2, cl. 3, as amended by U.S. CONST. amend. XIV, § 2; U.S. CONST. art. I, § 4, cl. 1; Wise v. Lipscomb, 437 U.S. 535, 540, 98 S.Ct. 2493, 2497, 57 L.Ed.2d 411 (1978)⁷⁰. Since decennial redistricting is the constitutional minimum required, a state is free to adopt new redistricting plans in between regularly scheduled decennial reapportionments. See generally Reynolds v. Sims, 377 U.S. 533, 583-84, 84 S.Ct. 1362, 1393, 12 L.Ed.2d 506 (1964) (more frequent apportionment is "constitutionally permissible," and even "practicably desirable"). The appropriate course of action in this instance is therefore clear: "When a federal court declares an existing apportionment scheme unconstitutional, 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."⁷¹ Wise, 437 U.S. at 540, 98 S.Ct. at 2497. Having been down this road once before, the Court will only fashion a new redistricting plan if the Florida Legislature does not timely propose a remedy. Id. at 540, 98 S.Ct. at 2497.⁷²

However, time is of the essence in this case. The candidate filing deadlines are just a few months away. Potential candidates (including incumbents) will need to know the contours of the state’s congressional districts, so they can organize .their campaigns accordingly. Voters will need to know the districts in which they reside. The State of Florida will need to set up the appropriate administrative features within its voting precinct structure. As a result, a new redistricting plan must be in place as soon as possible.

Fortunately, the Florida Legislature began its regular session on March 5, 1996. The Court therefore remands this matter to the Florida Legislature to redraw Florida’s Third Congressional District.⁷³ In adopting a new redistricting plan, the Florida Legislature is not confined to maintaining any portion of the existing interim plan, but is merely constrained by the legal and constitutional requirements disclosed herein. See generally Burns v. Richardson, 384 U.S. 73, 85, 86 S.Ct. 1286, 1293, 16 L.Ed.2d 376 (1966) (“[A] State’s freedom of choice to devise substitutes for an apportionment plan found unconstitutional either as a whole or in part, should not be restricted beyond the clear commands of the Equal Protection Clause.”). Any plan adopted by the Florida Legislature shall be submitted to this Court for review no later than May 22,1996.

Although any redistricting plan proposed by the State is subject to administrative preclearance pursuant to Section 5 of the Voting Rights Act, a federal court may authorize the emergency interim use of such a plan without first obtaining preelearance. 28 C.F.R. § 51.18(c) (1995). The Court will therefore review the Florida Legislature’s plan, if any is forthcoming, to determine whether it is in compliance with federal law. If the Court determines that the plan is lawful, the Court will authorize the plan’s use on an emergency interim basis for the 1996 congressional elections. The Florida Legislature will be required to obtain Section 5 preclearance for the use of such a plan for any elections after 1996.

This Court will retain jurisdiction in the event that the Florida Legislature does not timely adopt a valid redistricting plan, to enter such orders as it may deem to be appropriate, including an order for a valid redistricting plan. See, e.g., Scott v. Germano, 381 U.S. 407, 85 S.Ct. 1525, 14 L.Ed.2d 477 (1965). We may appoint a Special Master to propose an interim redistricting plan to be imposed in the event that the Florida Legislature fails to fulfill its constitutional reapportionment duty. Cf. Terrazas v. Slagle, 789 F.Supp. 828, 840 (W.D.Tex.1991), aff'd, Richards v. Terrazas, 505 U.S. 1214, 112 S.Ct. 3019, 120 L.Ed.2d 891; 506 U.S. 801, 113 S.Ct. 29, 121 L.Ed.2d 3 (1992). The Court will take this matter under advisement, and enter a separate order if necessary. However, in taking such action, the Court wants to reemphasize that it does not want to again be placed in a position where the Florida Legislature has abdicated to the Court its constitutional duty to adopt a redistricting plan. Rather, the Florida Legislature must have the strength of will and moral courage to timely enact a new congressional redistricting plan that comports with all constitutional mandates.

IV. Conclusion:

This decision should not be interpreted as “turning back the clock” on the gains made by African-American voters, and other racial and ethnic voting minorities. Nor should the decision be interpreted as cutting back on the continued viability of the Voting Rights Act as a means to remedy discriminatory voting practices. Rather, the Supreme Court has dictated that federal courts must abide by the underlying premise that in drawing race-based redistricting and reapportionment plans, they must at all times be cognizant of the limits that the Constitution will tolerate. Although the DeGrandy court engaged in a well-intentioned effort to enhance the voting opportunities of African-American and Hispanic voters⁷⁴, intervening ease law has shown that the three-judge panel did so with an erroneous understanding of what Section 2 of the Voting Rights Act required. It is for that reason that the Court has concluded that Florida’s Third Congressional District cannot survive the present constitutional equal protection challenge.

Accordingly, it is hereby ORDERED AND ADJUDGED:

(1) Florida’s Third Congressional District is a racially gerrymandered district that is not narrowly tailored to further a compelling governmental interest. Accordingly, Florida’s Third Congressional District violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution, and it must be redrawn for the 1996 congressional elections.

(2) Congresswoman Brown, the current representative from District Three, and all other representatives presently holding congressional office under the existing districting plan, shall maintain their offices until such time as the 1996 congressional elections are held and the newly elected congressional representatives take office.

(3) The State defendants are enjoined from using the existing congressional districting plan (containing the Third Congressional District) for the Fall 1996 congressional elections, or any elections thereafter. The Florida Legislature is directed to adopt a new congressional redistricting plan that remedies the constitutional infirmities of Congressional District Three, and since time is of the essence, such plan should be submitted to the Court by May 22,1996.

(4) The Court will retain jurisdiction in the event that the Florida Legislature does not timely adopt a valid redistricting plan, to enter such orders as it may deem to be appropriate, including an order for a valid redistricting plan. The Court further will retain jurisdiction for the purpose of assessing attorney fees and costs.

(5) The Clerk is directed to enter judgment for plaintiffs, and close this case, subject to the retained jurisdiction for the limited purposes herein specified.

DONE AND ORDERED.

Appendix A - Florida's. Third Congressional District

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A map of Florida's Third Congressional District is provided as Appendix A to this opinion.

1

. DeGrandy v. Wetherell, 794 F.Supp. 1076 (N.D.Fla.1992). The DeGrandy court included two of the judges of this three-judge court: Judge Hatchett and Judge Vinson.

2

. Coranell H. Johnson, Charles Romero, Vicki T. Romero, Harold F. Davis, Arthur Wilson Devoe, George Erdel, Carson Thomas Howes, Jr., and Jim Neill, who are registered voters in District Three; Andrew Johnson, an unsuccessful candidate for the Third District’s seat in the 1992 congressional elections; and Robert Ellison, in his official capacity as the treasurer of United We Stand America ("UWSA”) for District Three.

3

. Another three-judge panel has also held that a court-ordered redistricting plan is subject to strict scrutiny review under Shaw and Miller, even where the plan is imposed to remedy a constitutional or statutory violation. King v. State Bd. of Elections, No. 95-C-827, 1996 WL 130439, at *14-17 (N.D.Ill. Mar. 15, 1996). In King, the court rejected the defendant-intervenors' argument that Shaw and Miller only applied to legislatively created redistricting plans, for three separate reasons: first, the legislative versus judicial distinction is of no consequence where a court has adopted a redistricting plan to remedy violations of federal law, since a long line of Supreme Court decisions have made it clear that such remedial plans are subject to stricter review than plans drawn by legislatures; second, the checks and balances inherent in our constitutional framework dictate that when a court acts in a pseudo-legislative capacity by adopting a redistricting plan, it must be subject to the same standards of review as legislatures engaging in redistricting; and third, the Supreme Court's ruling in Adarand Constructors, Inc. v. Pena, — U.S. —, —, 115 S.Ct. 2097, 2117, 132 L.Ed.2d 158 (1995), made it clear that strict scrutiny applies to all actions taken for predominately race-based reasons by any governmental actor. Finally, as this Court held in its order of November 20, 1995, the King court also concluded that DeWitt v. Wilson, 856 F.Supp. 1409 (E.D.Cal.1994), judgment aff'd in part and appeal dismissed in part, 514 U.S. —, 115 S.Ct. 2637, 132 L.Ed.2d 876 (1995), was factually distinguishable, and actually supported application of Shaw and Miller to court-drawn plans. We agree with the King court's well-reasoned analysis of this issue regarding court-drawn plans.

4

. Thornburg v. Gingles, 478 U.S. 30, 106 S.Ct. 2752, 92 L.Ed.2d 25 (1986).

5

. See, e.g., Shaw v. Hunt, 861 F.Supp. 408, 438 (E.D.N.C.1994) (holding that "a state necessarily has a 'compelling' interest in engaging in race-based redistricting whenever it has a firm basis for concluding that such action is necessary to bring its electoral districting scheme into compliance” with VRA), probable jurisdiction noted, — U.S. —, 115 S.Ct. 2639, 132 L.Ed.2d 878 (1995); Johnson v. Miller, 864 F.Supp. 1354, 1381-82 (S.D.Ga.1994) (assuming compliance with VRA was a compelling interest), aff'd, Miller v. Johnson, 514 U.S. —, 115 S.Ct. 2475, 132 L.Ed.2d 762; White v. Alabama, 867 F.Supp. 1519, 1548 (M.D.Ala.1994) (same) (citing Hunt), vacated, 74 F.3d 1058 (11th Cir.1996).

6

. Mootness is an issue that can, and indeed must, be raised sua sponte by this court. See, e.g., Hogan v. Mississippi Univ. for Women, 646 F.2d 1116, 1117 n. 1 (5th Cir. Unit A 1981), aff'd 458 U.S. 718, 102 S.Ct. 3331, 73 L.Ed.2d 1090 (1982). As the Supreme Court has explained, "[flederal courts lack jurisdiction to decide moot cases because their constitutional authority extends only to actual cases or controversies." Iron Arrow Honor Society v. Heckler, 464 U.S. 67, 70, 104 S.Ct. 373, 374-75, 78 L.Ed.2d 58, 62 (1983). Further, this was not a situation in which a Section 2 violation was likely to recur if not addressed by the DeGrandy court because, as explained infra, there was no Section 2 violation under a correct reading of the statute.

7

. The Growe court also found that the lower court had erred in not deferring to the state court's efforts to adopt new redistricting and reapportionment plans. 507 U.S. at 32-37, 113 S.Ct. at 1080-83.

8

. Section 2 of the Voting Rights Act, as amended, provides:

(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 1373b(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 the 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.

42 U.S.C. § 1973 (emphasis in original).

9

. This statement further supports our conclusion in section 1(A)(1) of this opinion that the DeGrandy plaintiffs’ § 2 claim was moot once the De-Grandy court found the existing plan to be malapportioned.

10

. See also Gingles, 478 U.S. at 79, 106 S.Ct. at 2781 (there must be "an intensely local appraisal of the design and impact" of the electoral structure or practice being challenged) (quoting Rogers v. Lodge, 458 U.S. 613, 621, 102 S.Ct. 3272, 3278, 73 L.Ed.2d 1012 (1982)). Accord, Southern Christian Leadership Conference v. Sessions ("SCLC"), 56 F.3d 1281, 1292 (11th Cir.1995) (en banc) (same), cert. denied, — U.S. —, 116 S.Ct. 704, 133 L.Ed.2d 660 (1996); Nipper v. Smith, 39 F.3d 1494 (11th Cir.1994) (en banc) (same), cert. denied, — U.S. —, 115 S.Ct. 1795, 131 L.Ed.2d 723 (1995).

11

. The extent to which geographical compactness has to be sacrificed to draw African-American majority-minority districts such as District Three, provides a great deal of insight into why Defendants’ expert, Dr. Lichtman, believes that Congress should abandon the compactness requirement altogether. Lichtman Test., Tr. at 393. However, Congress has not chosen to do so, and this Court must consider all relevant factors—including compactness. See Gingles, 478 U.S. at 50-51, 106 S.Ct. at 2766.

12

. The Northeast region of Florida has a total of seventeen counties. Bradford, Union, and Nassau Counties are the only counties which do not constitute any part of Congressional District Three.

13

. Judge Hatchett’s dissent indicates that Florida Senate District Two is "practically identical” to Congressional District Three. In fact, Florida Senate District Two is markedly different. First of all, Senate District Two represents parts of only five counties, not fourteen. Unlike Congressional District Three, Senate District Two does not stretch westward through Lake City, nor does it meander south into Marion or Seminole Counties. Most importantly, Senate District Two does not encompass any part of Orange or Volusia Counties, the second and third largest concentrations of African-Americans in Congressional District Three.

14

.Indeed, this is one of the many factors that makes King v. State Board of Elections distinguishable from this case. The King court found that the Hispanic community in the City of Chicago/Cook County was sufficiently numerous to constitute a majority in a properly drawn district. King, 1996 WL 130439, at *24. However, ”[m]ost of the Chicago/Cook County Hispanic population is clustered in two dense enclaves, one in Chicago's near northwest side and one on the near southwest side." Id. at *9 (quoting Hasten v. State Bd. of Elections, 777 F.Supp. 634, 649 (N.D.Ill. 1991)). Moreover, the two Hispanic enclaves in Hasten arc less than a mile apart at their closest point, and their "separation resulted from exogenous physical and institutional barriers—specifically, the cast-west Eisenhower Expressway, the University of Illinois-Chicago Circle campus, and various major medical institutions—and thus did not indicate the existence of two distinct communities.” King, 1996 WL 130439, at *9.

15

. The perimeter score is computed by summing line segments comprising the perimeter of the district; and then constructing a circle with a circumference the same length as the perimeter of the district. The areas of the circle and the district are then computed, and the ratio of the district area to the area of the circle with the same boundary length becomes the perimeter score. Pls.' Ex. 3, David C. Huckasee, Congressional Research Service, Congressional Districts: Objectively Evaluating Shapes 7-8 (1994) ("C.R.S. report”).

16

. The dispersion score is derived by drawing a circle around each district in such a way as to completely encompass the district. Then the area of the district is compared to the area of the circumscribing circle. The ratio of the district area to the circle area yields the dispersion compactness score. C.R.S. report at 8.

17

. The population score is the ratio of the district population to the total population contained in a polygon formed by a taut "rubber band” stretched around the district. C.R.S. report at 10 n. 29.

18

. E.g., White v. Regester, 412 U.S. 755, 769, 93 S.Ct. 2332, 2341, 37 L.Ed.2d 314 (1973) (section 2 findings must be based an "intensely local appraisal" of the historical, social, and political climate of the geographical area in which the suit is brought); Gingles, 478 U.S. at 59 n. 28, 106 S.Ct. at 2771 n. 28 (inquiry into "racially polarized voting” must be "district-specific”); SCLC, 56 F.3d at 1305 (Hatchett, J., dissenting) (“Also, unlike the majority, I will undertake the required circuit-by-circuit analysis in reviewing the district court’s racial bloc voting findings.... Indeed, the majority’s failure to engage in the required circuit-by-circuit analysis is a serious flaw, for the district court’s legal errors become obvious under this more particularized level of scrutiny.’’) (internal citation omitted) (quoting Gingles, supra); League of United Latin American Citizens, Council No. 4434 v. Clements, (LULAC II) 999 F.2d 831, 867 (5th Cir.1993) (quoting White, supra). See also Rural West Tenn. Afr.-Am. Affairs Council, Inc. v. McWherter, 877 F.Supp. 1096, 1109-10 (W.D.Tcnn.) (three-judge panel concluding that in statewide challenge it "should have evaluated more closely regional statistics in our earlier decision in addition to examining statewide evidence”), aff'd, — U.S. —, 116 S.Ct. 42, 133 L.Ed.2d 9 (1995).

19

. A particularly dubious assumption, in light of the Growe court's admonition that "[s]ection 2 'does not assume the existence of racial bloc voting; plaintiffs must prove it.' ” 507 U.S. at 42, 113 S.Ct. at 1085 (quoting Gingles, 478 U.S. at 46, 106 S.Ct. at 2764) (finding that a law review article on national voting patterns was no substitute for proof of vote dilution).

20

. Indeed, we are unable to find any reported successful cases of vote dilution in the last two decades in any of the fourteen counties comprising District Three. See, e.g., Nipper v. Chiles, 795 F.Supp. 1525, 1544 (M.D.Fla.1992) (unsuccessful challenge to judicial districts in Duval and Clay counties), aff'd on other grounds, Nipper v. Smith, 39 F.3d 1494 (11th Cir.1994); Williams v. Orange County, Fla., 783 F.Supp. 1348, 1362 (M.D.Fla.) (unsuccessful challenge to system of electing board of county commissioners in Orange County), aff'd, 979 F.2d 1504 (11th Cir. 1992), cert. denied, 509 U.S. 905, 113 S.Ct. 2998, 125 L.Ed.2d 692 (1993).

21

.Typically, the most probative evidence of racially polarized voting will come through elections involving both white and African-American candidates. LULAC II, 999 F.2d at 864. See Nipper, 39 F.3d at 1540 (Tjoflat, C.J., plurality opinion). Nevertheless, that does not necessarily foreclose the possibility that evidence of racially polarized voting may be shown where there are no African-American candidates or both candidates are African-Americans. As Chief Circuit Judge Tjoflat noted in Nipper, if the parties can present sufficient proof that "black voters were energized to support a particular white candidate” when white voters were energized to support another white candidate, that information would be relevant to the vote dilution inquiry. Id. Consequently, to the extent that Dr. Lichtman failed to consider "split preference” elections, his findings are insufficient. Cf. SCLC, 56 F.3d at 1293 (finding that district court properly determined that Dr. Lichtman's analysis was flawed where that analysis failed to consider split preference elections).

22

. The registration data supplied by Plaintiffs shows that in three of the counties with the largest African-American population within District Three, African-Americans arc overwhelmingly registered as Democrats—while most registered Republicans are white. In Duval County, 91.3 percent of all registered African-American voters are Democrats, while over 97 percent of all registered Republicans are white or non-black. See App. to Bell Dep., Pls.’ Ex. 6. In Alachua County, 95.7 percent of all registered African-American voters arc Democrats, while nearly 98.3 percent of all registered Republicans are white or non-black. See App. to Hill Dep., Pls.’ Ex. 9. In Volusia County, nearly 88.3 of all registered African-American voters are Democrats, while over 99.1 percent of all registered Republicans are white or non-black. See App. to Lowe Dep., Pls.' Ex. 10. See also Bositis Test., Tr. at 208 (characterizing District Three as a ' 'Democratic-lea[n] ing district”).

23

. For example, in 1982, white Democratic Congressman Charles Bennett was the African-American candidate of choice when he ran against George Grimsley, an African-American Republican. Holzendorf Test., Tr. at 78-79.

24

. For example, in 1995, Democrat Fred Matthews, an African-American, was the African-American candidate of choice when he lost in a city council election to Republican Gwen Chandler-Thompson, an African-American. Holzendorf Test., Tr. at 67-69. Similarly, when African-American Republican Marc Little ran against Congresswoman Brown in the 1994 District Three general election, Little received virtually no support within the African-American community, which overwhelmingly backed Brown. See Bositis Test., Tr. at 202-03, 218; Brown Test., Tr. at 298-99.

25

. Congressman Pete Peterson, a white Democrat who represents the present District 2, has also been the candidate of choice within the African-American community. Russell Test., Tr. at 543-45.

26

. Compare with National Association for the Advancement of Colored People, Inc. v. City of Niagara Falls, 65 F.3d 1002 (2d Cir.1995), wherein the court stated:

We decline to adopt an approach precluding the possibility that a white candidate can be the actual and legitimate choice of minority voters. Such an approach would project a bleak, if not hopeless, view of our society—a view inconsistent with our people's aspirations for a multiracial and integrated constitutional democracy. No legal rule should presuppose the inevitability of electoral apartheid—least of all a rule interpreting a statute designed to implement the Fourteenth and Fifteenth Amendments to the Constitution. Indeed, any such rule would be in tension with the Voting Rights Act's directive that members of a protected class have no right to proportional representation.

Id. at 1016.

27

. The evidence plainly established the fact that African-American voters in Northeast Florida have consistently elected the candidate of their choice in congressional elections during the last decade. This is not insignificant. Even assuming, arguendo, that racially polarized voting exists in Northeast Florida, the ability of African-American voters to have’ an equal voice in the political process precludes them from stating a Section 2 claim. Other courts have reached the same conclusion, where similar evidence was presented, but was not shown to have interacted with a political process or structure to limit minority participation in the political process in question. See generally Little Rock Sch. Dist. v. Pulaski County Spec. Sch. Dist. No. 1, 831 F.Supp. 1453 (E.D.Ark.1993) (finding that plaintiffs failed to demonstrate sociological, historical, and economic factors interacted with system of electing school board members to deny minority voters equal access to the political process), aff’d, 56 F.3d 904 (8th Cir.1995); Ortiz v. City of Philadelphia Office of City Comm'rs Voter Registration Div., 824 F.Supp. 514 (E.D.Pa.1993) (reaching same conclusion on the basis of similar evidence in challenge of voter purge law), aff’d, 28 F.3d 306 (3d Cir.1994), reh’g and reh'g en banc denied; Magnolia Bar Ass’n, Inc. v. Lee, 793 F.Supp. 1386 (S.D.Miss.1992) (reaching the same conclusion on the basis of similar evidence, in addition to racial appeals in campaigning, in challenge to system of electing judges to Mississippi Supreme Court), aff’d, 994 F.2d 1143 (5th Cir.), cert. denied, — U.S. —, 114 S.Ct. 555, 126 L.Ed.2d 456 (1993). See also Johnson v. DeCrandy, where the Supreme Court slated:

We do, however, part company from the District Court in assessing the totality of the circumstances. The District Court found that the three Cingles preconditions were satisfied, and that Hispanics had suffered historically from official discrimination, the social, economic, and political effects of which they generally continue to feel ... Without more, and on the apparent assumption that what could have been done to create additional Hispanic super-majority districts should have been done, the District Court found a violation of § 2. But the assumption was erroneous, and more is required, as a review of Cingles will show.

512 U.S. at —, 114 S.Ct. at 2656-62 (internal citation omitted). Cf. Crowe v. Emison, 507 U.S. at 41, 113 S.Ct. at 1085 (reversing district court’s finding of vote dilution that violated § 2 because "the Cingles preconditions were not only ignored but were unattainable. As the district court acknowledged, the record contains ‘no statistical evidence’ of minority political cohesion ... or of majority bloc voting in Minneapolis.”).

28

. Defendants and Defendant-Intervcnors also submitted copies of the "Report and Recommendations of the Florida Supreme Court Racial and Ethnic Bias Study Commission” as evidence of discrimination in Florida. Defs.’ Exs. 13-14. However, we find that the report provides an insufficient basis to reach a conclusion that discrimination against African-Americans currently precludes their participation in the political process (or more particularly, congressional elections). At least one court has reached a similar conclusion in the context of Florida’s judicial selection process, which the reports had expressly addressed. See Mallory v. Harkness, 895 F.Supp. 1556, 1559-60 (S.D.Fla.1995) (finding no compelling interest was shown that would justify imposition of race and gender-based quotas for judicial nominations).

29

. Former Fifth Circuit case, applying Section 9(1) of Public Law 96-452.

30

. MR. SULLIVAN: You're not here today to testify about the existence of any current law that creates a qualification that discriminates against the rights of African-Americans to participate, are you?

DR. PAULSON: No. I’m here to testify about the impact of those prior laws on the present day.

MR. SULLIVAN: Okay. So, you’re not here to testify about any current standard, any current voting practice, any current qualification, or anything that currently makes this an unequal process between blacks and whites; is that right?

DR. PAULSON: Not other than some of the vote dilution techniques which are widely used in these Northeast Florida counties, such things as at-large elections, many of which have been thrown out.

MR. SULLIVAN: This was the districting plan in effect in 1982 to 1992. Have you ever seen this map before?

DR. PAULSON: Probably, yes.

MR. SULLIVAN: You’re not here to tell the court that any of these districts were created to dilute minority voting strength, are you?

DR. PAULSON: No.

Paulson Test., Tr. at 40-41.

31

. The Court finds Dr. Engstrom’s data, which shows voter registration in District Three among African-Americans is eight percent lower than among whites, see Engstrom Rep. Defs.’ Ex. 3 at App. A, Engstrom Test., Tr. at 470-71, to be completely unreliable as a result of the same methodological errors that skewed his voter turnout data. See infra note 33.

32

. The Court agrees with one counsel's characterization of Mr. Pearson as “a one man civil rights movement.” Tr. at 668.

33

. Based on Dr. Lichtman's figures, Dr. Engstrom provided data showing that turnout among voters in the counties encompassing District Three was between 18 and 27 percent lower for African-American voters than non-African American voters in two presidential and gubernatorial elections between 1988 and 1994. See Engstrom Rep., Defs.' Ex. 3 at App. B. However, these figures are unreliable because they include three counties outside District Three (Bradford, Nassau, and Union counties) with substantial prison populations, consisting of a disproportionately large number of African-American prisoners [counted in census data as part of the county's population] who have had their civil rights— including the right to vote—taken away. Paul-son Test., Tr. at 38-40; Engstrom Test., Tr. at 479-83. Voter registration rates among African-Americans of VAP in Bradford and Union Counties are 35.0 and 30.1 percent, respectively. Engstrom Rep., Defs.’ Ex. 3 at App. A. Although Nassau County has a voter registration rate of 55.7 percent, id., the overall effect of adding these three counties to the fourteen counties in District Three distorts the actual registration disparity of 1.8 percent to reflect a disparity of 8 percent.

34

. This problem does not render the figures irrelevant, however, since the evidence has shown that voting patterns in Florida have remained consistent in the last decade.

35

. Dr. Lichtman agreed in his testimony that in the 1992 Congressional election in District Three, white turnout was about seven percent higher than African-American turnout. Lichtman Test., Tr. at 339-40.

36

. See 794 F.Supp. at 1079 ("An African-American has not represented Florida in the United States Congress in over a century.... From 1889 until 1968, African-Americans were unable to elect a single representative to the state house. Additionally, African-Americans were unable to elect a representative to the state senate until ten years ago....”) (citation omitted).

37

. See generally Chisom v. Roemer, 501 U.S. 380, 395, 111 S.Ct. 2354, 2364, 115 L.Ed.2d 348 (1991) ("Section 2(a) adopts a results test, thus providing that proof of discriminatory intent is no longer necessary to establish any violation the section.”).

38

. See the discussion on the "disclaimer” provision of the Voting Rights Act, infra note 54.

39

. Dr. Bositis testified that "Adjusting for these gaps in black and white turnout, and even assuming that the gap between black and white turnout in Florida District Three is narrower than what the gap is statewide, I would expect that on election day in 1992 and election day in 1994 there were probably as many white faces at the polls as black, or maybe more.” Bositis Test., Tr. at 204.

40

. The Fifteenth Amendment provides:

Section 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude—

Section 2. The Congress shall have the power to enforce this article by appropriate legislation.

U.S. Const. amend. XV, §§ 1-2.

41

. See generally L. Tribe, American Constitutional Law. § 3-10, at 79-80 (2d ed. 1988) ("Constitutional concerns of ripeness must be applied to every aspect of a lawsuit.... Ripeness requirements ... constrain a court's power over remedies: even plaintiffs previously injured by a challenged exercise of governmental power may be foreclosed from relief sought to prevent speculative future harm.").

42

. Although the analysis of whether District Three was narrowly tailored is superfluous, since Plaintiffs have already persuaded the Court that the DeGrandy court lacked a compelling interest to draw District Three.

43

. See generally Shaw, 509 U.S. at 654, 113 S.Ct. at 2831 ("[W]e do not read Beer [v. United States, 425 U.S. 130, 96 S.Ct. 1357, 47 L.Ed.2d 629] or any of our § 5 cases to give covered jurisdictions carte blanche to engage in racial gerrymandering in the name of nonretrogression. A reapportionment plan would not be narrowly tailored to the goal of avoiding retrogression if the State went beyond what was reasonably necessary to avoid retrogression.").

44

. See generally Clark v. Calhoun County, Miss., 21 F.3d 92, 96 n. 2 (5th Cir.1994) ("The court should make sure that any remedial plan is narrowly tailored to correct any § 2 violation found to exist in Calhoun county.”); Whitfield v. Democratic Party of Ark., 890 F.2d 1423, 1432 (8th Cir.1989) ("We are well aware of the difficulty of fashioning a remedy for Phillips County alone, while allowing the other counties of Arkansas to continue implementing a majority vote runoff requirement for primary elections. However, the evidence requires just such a remedy, and courts have created remedial orders which affect only one legislative district, while affecting no other portion of the Arkansas state legislative structure.”), on reh'g, 902 F.2d 15 (8th Cir.1990), cert. denied, 498 U.S. 1126, 111 S.Ct. 1089, 112 L.Ed.2d 1193 (1991); Rybicki v. State Bd. of Elections of Ill., 574 F.Supp. 1082, 1124-25 (N.D.Ill.1982) (three judge panel) (“Because our finding of liability is limited to two relatively small groups of districts, we believe that the remedy should be designed to ameliorate the effects of unconstitutional vote dilution in those two areas.").

45

. See also Quilter, 912 F.Supp. at 1021 ("Assuming race must be considered to comply with the Voting Rights Act, the question then becomes whether a state could have complied with the Voting Rights Act with means that were less race-based.”).

46

. Justices Thomas and Scalia went even further, suggesting that they would hold that an apportionment plan is not a "standard, practice, or procedure” that may be challenged under § 2, thereby overruling Gingles. DeGrandy, 512 U.S. at —, 114 S.Ct. at 2667 (Thomas, J., dissenting); Holder, —U.S. at —, 114 S.Ct. at 2619 (Thomas, J., concurring in the judgment) (arguing that the terms contained in § 2 apply "only to state enactments that regulate citizens’ access to the ballot or the processes for counting a ballot," but not how much weight a ballot or vote should be given).

47

. See generally Miller, where the Court stated:

The Voting Rights Act, and its grant of authority to the federal courts to uncover official efforts to abridge minorities' right to vote, has been of vital importance in eradicating invidious discrimination from the electoral process ... Only if our political system and our society cleanse themselves of that discrimination will all members of the polity share an equal opportunity to gain public office regardless of race.... That end is neither assured nor well served, however, by carving electorates into racial blocs.

514 U.S. at —, 115 S.Ct. at 2494. Cf. Shaw, 509 U.S. at 647, 113 S.Ct. at 2827 ("[Rjeapportionment is one area in which appearances do matter. A reapportionment plan that includes in one district individuals who belong to the same race, but who are otherwise widely separated by geographical and political boundaries, and who may have little in common with one another but the color of their skin, bears an uncomfortable resemblance to political apartheid.”).

48

. The opinion further elaborated:

It may be that the significance of the facts under § 2 was obscured by the rule of thumb apparently adopted by the District Court, that anything short of the maximum number of majority-minority districts consistent with the Gingles conditions would violate § 2, at least where societal discrimination against the minority had occurred and continued to occur. But reading the first Gingles condition in effect to define dilution as a failure to maximize in the face of bloc voting (plus some other incidents of societal bias to be expected where bloc-voting occurs) causes its own dangers, and they are not to be courted.

512 U.S. at —, 114 S.Ct. at 2659.

49

. Although Miller assessed the quantum of evidence needed to prove a claim under Shaw v. Reno, it is not just a Fourteenth Amendment case. Indeed, one court has astutely noted that Miller is in fact a "statutory interpretation case," to the extent that the Court repudiated the Department of Justice’s interpretation of the Voting Rights Act. Bossier Parish Sch. Bd. v. Reno, 907 F.Supp. 434, 444 (D.D.C.1995).

50

. While the Miller court called it a "maximization” policy, it appears that the Department of Justice in fact applied a "proportionality” policy. "Maximization” would require adoption of a redistricting plan that includes the maximum number of majority-minority districts. See Johnson v. DeGrandy, 512 U.S. at —, 114 S.Ct. at 2658-60. "Proportionality,” on the other hand, "links the number of majority-minority voting districts to minority members’ share of the relevant population.” Id. at —, n. 11, 114 S.Ct. at 2658 n. 11.

51

. The 1990 census showed that Georgia had a population of 6,478,216 persons, 27 percent of whom are African-Americans. Miller, 514 U.S. at —, 115 S.Ct. at 2483. The Department of Justice required Georgia to adopt a redistricting plan including three African-American majority-minority districts, or 27 percent of Georgia's eleven congressional districts. Id. at —, 115 S.Ct. at 2483-84.

52

. Cf. Gingles, 478 U.S. at 94, 106 S.Ct. at 2789 (O'Connor, J., concurring) (Congress did not intend in the Voting Rights Act to provide minority voters with the "maximum feasible minority voting strength.”)

53

. Since intervening law has shown that the DeGrandy court abused its discretion in the creation of District Three, this Court is not required to defer to the DeGrandy court's finding that Plan 308 (which created District Three) was the most narrowly tailored plan available. Cf. King, 1996 WL 130439, at *28 (deferring to underlying court's finding that the remedial plan was narrowly tailored where the underlying court had properly applied a § 2 analysis).

54

. The DeGrandy court did not apply a "proportionality" policy as defined by the disclaimer clause of § 2. The disclaimer clause, also known as the proportional representation clause or the Dole Amendment, provides 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." 42 U.S.C. § 1973(b). As the Supreme Court noted, “[t]his proviso speaks to the success of minority candidates, as distinct from the political or electoral power of minority voters.” Johnson v. DeGrandy, 512 U.S. at — n. 11, 114 S.Ct. at 2658 n. 11. Instead, the DeGrandy court applied a proportionality policy designed to equate African-American political power with the number of African-Americans in Florida's population. Congresswoman Brown’s testimony reflects the results of this proportionality policy:

... [I]f you look at the results, for the first time in the history of this State, the congressional delegation is reflective of the people that live there. We have two Hispanics, three African-Americans, five women, fifteen Republicans, and eight Democrats. So, the map reflects the people, and it reflects the diversity in this State.

Brown Test., Tr. at 282.

55

. See also Burns v. Richardson, 384 U.S. 73, 85, 86 S.Ct. 1286, 1293, 16 L.Ed.2d 376 (1966) ("a State's freedom of choice to devise substitutes for an apportionment plan found unconstitutional, either as a whole or in part, should not be restricted beyond the clear commands of the Equal Protection Clause."); League of United Latin Am. Citizens, Council No. 4434 v. Clements ("LULAC I"), 902 F.2d 293, 321 (5th Cir.1990) (Johnson, J., dissenting) ("[B]ecause reapportionment is primarily a matter for legislative consideration, the doctrine of judicial deference to state interests is especially strong when a court orders a temporary or interim plan.") (collecting citations), on reh'g, 914 F.2d 620, rev'd, 501 U.S. 419, 111 S.Ct. 2376, 115 L.Ed.2d 379 (1991), on remand, 986 F.2d 728 (5th Cir.1993), on reh'g, LULAC II, 999 F.2d 831; Seastrunk v. Burns, 772 F.2d 143, 151 (5th Cir.1985) ("[E]ven where a legislative choice of policy is perceived to have been unwise, or simply not the optimum choice, absent a choice that is either unconstitutional or otherwise illegal under federal law, federal courts must defer to that legislative judgment.").

56

. Dr. Scher supported his conclusion concerning protection of incumbent congressional representatives as follows:

DR. SCHER: It [Table 1] looked at the incumbents, the Florida congressmen standing for re-election after redistricting between 1900 and 1992. And, as you can see, there were 68 incumbents who chose to run again. All 68 were re-elected.

MS. WISEMAN: In other words, 100 percent incumbents who ran after redistricting in this century were re-elected?

DR. SCHÉR: That is correct, 100 percent—no one lost.

MS. WISEMAN: Indicating that protection of incumbents is of some priority?

DR. SCHER: That’s the conclusion I drew from that, yes.

Scher Test., Tr. at 113. See also Scher Rep., Defs.’ Ex. 5, Table 1. However, protection of incumbents in northeast Florida was not one of the state's redistricting interests in 1992, since the two incumbents in this area had retired. See Scher Test., Tr. at 116.

57

. To comply with the requirements of Wesberry v. Sanders, 376 U.S. 1, 84 S.Ct. 526, 11 L.Ed.2d 481 (1964). Scher Test., Tr. at 113.

58

. Dr. Scher explained how partisan politics affected the redistricting process. Tr. 113-18.

59

. Judge Paul respectfully dissents on the panel’s decision to allow Mr. Russell, who did not serve in any capacity with the Florida Legislature during the DeGrandy litigation, to testify concerning what the Legislature’s intent was during the redistricting process. See Russell Test., Tr. at 536-37.

60

. Weber Test., Tr. at 433. Plan 287, proposed by Gwen Margolis of the Florida Senate (92-40015, Doc. 158). See Defs.' Ex. 10, Tabs 5 & 9. Plan 287 included two Hispanic and two African-American majority-minority districts, and no influence districts. DeGrandy, 794 F.Supp. at 1086. District Three, which contains an African-American VAP of 50.6 percent and a Democratic majority of 76.4 percent, closely resembles the Margolis Plan's proposed third district, which would have contained an African-American VAP of 50.1 percent and a Democratic registration majority of 76.4 percent. See Attachments C and G to DeGrandy Independent Expert's Report. Plan 287 was not actually adopted by the Florida Senate.

61

. Dr. Lichtman testified that "... Republicans were utilizing, for political ends, as politicians are wont to do, their support for the creation of black majority districts.” Lichtman Test., Tr. at 393.

62

. The following exchange makes this strategy readily apparent:

MR. SULLIVAN: Okay. When you mentioned that there were partisan pressures that were involved in the creation of District Three, what did you mean?

DR. SCHER: The legislature in 1992 was almost at parity between the Democratic party and the Republican party. Both parties were really attempting to foster their own base of support in the Northeast Florida area.

MR. SULLIVAN: And the way to foster that base of support was for Republicans and black Democrats to work together on the redistricting process?

DR. SCHER: That was one of the strategies that the Republican party employed, yes.

Scher Test., Tr. at 122.

63

. The Defendants and Defendant-Intervenors make the same fundamental mistake in this case. Defendants' evidence on the narrowly tailored prong concentrates on a comparison between District Three and the majority-minority districts contained in the Margolis, James, Ireland, and NAACP plans, which all had a black VAP of at least 50.0 percent. Defendants conclude that District Three is the most narrowly tailored of these majority-minority districts. Wright Closing Argument, Tr. at 695. See also Weber Test., Tr. at 432-38. However, the DeGrandy court was not confined to just these districts, even if some violation of federal law had been present. To the extent that a certain level of African-American VAP was needed to allow African-Americans to elect a candidate of their choice, it appears from recent election results that the VAP could have been as low as 30.0 percent. Dr. Lichtman could not find a single example of any district in northeast Florida with an African-American VAP of 27.7 percent or higher in which the candidate of choice of African-Americans had been defeated. Lichtman Test., Tr. at 390-91. This appears to be a result of the Democratic polarization of African-American voters, which then only requires about 20 percent of white crossover votes to provide a majority in excess of 50 percent. Moreover, as we have repeatedly stated throughout this order, the Voting Rights Act does not require a particular type of district — just one that does not "result in unequal access to the political process." Voinovich v. Quilter, 507 U.S. at 155, 113 S.Ct. at 1156.

64

. The Florida House of Representatives, a party defendant in this action and still Democratic-controlled, now seeks to uphold District Three.

65

. More specifically, these other plans included the following: State Representative DeGrandy's plan (Plan 212), with an African-American VAP of 47.5%; Lawyer's Committee/Humphrey plans (Plan 202), with an African-American VAP of 47.5%; State Senator Gordon's plan (Plan 279), with an African-American VAP of 25.2%; and State Representative Reddick's plan (Plan 296), with an African-American VAP of 36.3%. See Attachment C to DeGrandy Independent Expert's Report; Defs.' Ex. 10 at Tab 9.

66

.Cf. Johnson v. DeGrandy, where the Supreme Court noted:

Even if the State's safe harbor were open only in cases of alleged dilution by the manipulation of district lines, however, it would rest on an unexplored premise of highly suspect validity: that in any given voting jurisdiction ... the rights of some minority voters under § 2 may be traded off against the rights of other members of the same minority class. Under ... [this] view, the most blatant racial gerrymandering in half of a county's single member districts would be irrelevant under § 2 if offset by political gerrymandering in the other half, so long as proportionality was the bottom line.

522 U.S. at —, 114 S.Ct. at 2661.

67

. See generally Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed.220 (1886) (“The right to vote on an equal basis with other citizens is a fundamental right in a free society; indeed, in any viable form of representative government. It is preservative of all government rights.”).

68

. In Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir.1981) (en banc), the Eleventh Circuit adopted as precedent the decisions of the Fifth Circuit rendered prior to October 1, 1981.

69

. Defendants’ counsel pointed out in closing arguments that strict scrutiny is not necessarily strict in theory, but fatal in fact. Wright argument, Tr. at 694-95. Decisional law supports counsel's statement. Adarand, — U.S. at —, 115 S.Ct. at 2117; King, 1996 WL 130439, at *22 (quoting Adarand). In fact, in King, the court upheld Illinois’ Fourth Congressional District under strict scrutiny review. Id. at *28-29. However, in this case, the evidence has clearly demonstrated the absence of both a compelling interest and a narrowly tailored remedial plan that led to the creation of District Three. Under the facts of this particular case, strict scrutiny review is fatal to District Three.

70

. See generally Chapman v. Meier, 420 U.S. 1, 27, 95 S.Ct. 751, 766, 42 L.Ed.2d 766 (1975) ("[R]eapportionment is primarily the duty and responsibility of the State through its legislature or other body, rather than of a federal court.”).

71

. It is obvious, however, that members of Congress elected under Florida’s existing interim redistricting plan will maintain their seats until such time as those elected under the new redistricting plan are sworn into office.

72

.Contrary to the dissent, we cannot deny the Florida Legislature the first opportunity to adopt a new redistricting plan. Not only is it required under existing constitutional law and the doctrines of federalism and separation of powers, but to do otherwise would encourage the very type of judicial activism in the political process that this Court has a duty to avoid.

73

. Based on the principles discussed in this order, the Florida Legislature cannot simply readopt the DeGrandy redistricting plan.

74

. The fact that a court was well-intentioned in engaging in race-conscious redistricting does not make the court-drawn plan any less unconstitutional, where claimants have shown that the plan deprives them of equal protection under the law.