Quilter v. Voinovich

981 F. Supp. 1032, 1997 U.S. Dist. LEXIS 17251, 1997 WL 687725

• Court: District Court, N.D. Ohio
• Decided: August 22, 1997
• Docket: 5:91CV-2219
• Status: Published

Opinions

OPINION

MOORE, Circuit Judge.

The question before this court is whether the Ohio Apportionment Board’s consideration of race in its 1992 redistricting plan violated the Equal Protection Clause of the Fourteenth Amendment. We hold that because the plaintiffs have failed to make a threshold showing that the defendants subordinated traditional districting principles to consideration of race, strict scrutiny of the challenged districts is not applicable. Applying rational basis scrutiny, we conclude that the plan does not violate the Equal Protection Clause.

I. BACKGROUND AND PROCEDURAL HISTORY

This case is before this court on remand from the United States Supreme Court. Because we focus on application of the legal analysis outlined by the Supreme Court in recent cases, we will not revisit the facts and procedural history of this case in detail. The tortuous history of this litigation, which first came to this court in the form of a suit based on vote dilution and population deviation, was more thoroughly recounted in a previous opinion of this court. See Quitter v. Voinovick, 912 F.Supp. 1006, 1011-14 (N.D.Ohio 1995).

This litigation arose from the reapportionment of Ohio’s electoral districts following the 1990 federal census. The plaintiffs include the Democratic members of the Republican-dominated Apportionment Board; the defendants are the Republican members of the Board and James R. Tilling, who drew the majority’s plan. After the Supreme Court reversed this court’s judgment for the plaintiffs on claims of vote dilution and remanded for further proceedings on a Fourteenth Amendment claim involving population deviation, see Voinovich v. Quilter, 507 U.S. 146, 113 S.Ct. 1149, 122 L.Ed.2d 500 (1993), this court permitted the plaintiffs to amend the complaint in light of the then-recent decision in Shaw v. Reno, 509 U.S. 630, 113 S.Ct. 2816, 125 L.Ed.2d 511 (1993) (“Shaw I”) which recognized an equal protection claim of racial gerrymandering. Quitter v. Voinovich, 157 F.R.D. 36 (N.D.Ohio 1994). This court held in favor of the defendants on the population deviation issue, Quitter v. Voinovich, 857 F.Supp. 579 (N.D.Ohio 1994), but held in favor of the plaintiffs on the Shaw claims. Quilter v. Voinovich, 912 F.Supp. 1006 (N.D.Ohio 1995). The Supreme Court vacated the latter opinion and remanded for further consideration in light of the recent opinions in Bush v. Vera, 517 U.S. 952, 116 S.Ct. 1941, 135 L.Ed.2d 248 (1996), and Shaw v. Hunt, 517 U.S. 899, 116 S.Ct. 1894, 135 L.Ed.2d 207 (1996) (“Shaw II”). Voinovich v. Quitter, — U.S. -, 116 S.Ct. 2542, 135 L.Ed.2d 1064 (1996).

On remand, we have limited our consideration to the effect of Bush and Shaw II on our previous analysis and holding. We have not considered any new evidence; we therefore readopt our previous factual findings, as outlined in the vacated opinion, to the extent that they are findings of fact and not conclusions of law regarding the “predominant factor” analysis, and to the extent that they are relevant to the threshold analysis. Specifically, we readopt ¶¶ 2, 3, and 5-10. See 912 F.Supp. at 1023-25. As to ¶ 11, we readopt the description of Tilling’s notes and the finding that they are “probative” of the defendants’ consideration of race, but we do not adopt the characterization of that consideration as “predominant” under the now-relevant Supreme Court standards. We need not readopt our previous findings of fact or conclusions of law as to the analysis under strict scrutiny, in which we held that the defendants did not have a compelling state interest to justify race-based redistrieting. See 912 F.Supp. at 1027-30 (¶¶ 15-22). We see nothing in Bush or Shaw II that would change our previous analysis of compelling interest, but our holding that strict scrutiny is not applicable to the plan renders the compelling interest analysis unnecessary.

II. STANDING

Although we did not previously address the plaintiffs’ standing to challenge the apportionment plan or certain districts, the Supreme Court’s clear and limited definition of standing in Shaw II prompts us to consider not only whether the plaintiffs have standing, but also the scope of that standing. Federal courts have “an independent obligation to examine their own jurisdiction, and standing ‘is perhaps the most important of [the jurisdictional] doctrines.’ ” United States v. Hays, 515 U.S. 737, 742, 115 S.Ct. 2431, 2435, 132 L.Ed.2d 635 (1995) (quoting FW/PBS, Inc. v. Dallas, 493 U.S. 215, 231, 110 S.Ct. 596, 607, 107 L.Ed.2d 603 (1990) (citations omitted)) (alteration in original).

The Supreme Court’s treatment of standing in Shaw claim cases has not been entirely consistent. Shaw I itself appeared to be based on broadly conceptualized harms, focusing on the stigmatization of individuals because of their race and on potential “representational harms” resulting from representation only of members of the majority racial group in a district.¹ See Hays, 515 U.S. at 744-45, 115 S.Ct. at 2436; Shaw I, 509 U.S. at 643, 648, 113 S.Ct. at 2824-25, 2827; Mark S. Nagel, Recent Developments, 19 Harv.J.L. & Pub. Pol’y 188,196 (1995). See also Richard H. Pildes & Richard G. Niemi, Expressive Harms, “Bizarre Districts, ” and Voting Rights: Evaluating Electionr-District Appearances After Shaw v. Reno, 92 Mich. L.Rev. 483, 515-16 (1993) (commenting on “just how nonindividualized ... the expressive harm central to Shaw ” was, and noting the Court’s failure in Shaw I to address issues of standing); Pamela S. Karlan, Still Hazy After All These Tears: Voting Rights in the Post-Shaw Era, 26 Cumb.L.Rev. 287, .290 (1995-1996) (noting Shaw’s “‘complete disregard for standing requirements’ ”) (citation omitted); Jeffrey L. Fisher, Note, The Unwelcome Judicial Obligation to Respect Politics in Racial Gerrymandering Remedies, 95 MichL.Rev. 1404, 1416 (1997) (“[S]uch a speculative view of harm [as Shaw’s representational harm], however, has never been enough to satisfy Article Ill’s standing requirement.”). In Hays, the Court rejected the argument that “anybody in the State” could challenge an allegedly racially gerrymandered district, holding instead that a plaintiff who does not reside in the challenged district must present “specific evidence” that he or she “has personally been subjected to a racial classification.” 515 U.S. at 745, 115 S.Ct. at 2436. The Court explained that “[v]oters in [racially gerrymandered] districts may suffer the special representational harms racial classifications can cause in the voting context. On the other hand, where a plaintiff does not live in such a district, he or she does not suffer those special harms____” Id.

In another decision issued on the same day as Hays, however, the Court appeared to focus not on the representational harms to the white plaintiffs who challenged a majority-minority district, but on the general, expressive harms that result from government use of racial classifications. See Miller v. Johnson, 515 U.S. 900, 911-13, 115 S.Ct. 2475, 2486, 132 L.Ed.2d 762 (1995) (emphasizing the offensiveness of such use); see also Karlan, supra, at 288 (commenting on “Miller ’s apparent abandonment of any requirement that plaintiffs prove ‘representational harms.’ ”).

In Shaw II, the Shaw I suit that spawned this line of cases returned to the Supreme Court, which then applied the Hays rule and cemented the test of standing to bring a Shaw claim: a plaintiff who resides in a particular district has standing to challenge the legislation that created that district; a plaintiff from outside the district does not have standing to challenge the legislation without specific evidence that he or she “personally has been subjected to a racial classification.” 517 U.S. at-, 116 S.Ct. at 1900. The scope of the standing is specific— the plaintiffs challenge is limited to the particular district on which standing is based:

Two appellants, Ruth Shaw and Melvin Shimm, live in District 12 and thus have standing to challenge that part of Chapter 7 which defines District 12. The remaining appellants do not reside in District 1 [the other challenged district], however, and they have not provided specific evidence that they personally were assigned to their voting districts on the basis of race. Therefore, we conclude that only Shaw and Shimm have standing and only with respect to District 12.

Id. (citation and footnote omitted).²

In the present case, the plaintiffs have purported to challenge the Ohio Apportionment Board’s plan as a whole; the previous, vacated opinion of this court held eight specific districts unconstitutional: House Districts (“HD”) 21, 22, 30, 31, 38, 39, 44, and 49. The defendants concede that at least one plaintiff resides in HD 31, HD 39, HD 44, and HD 49, and challenge plaintiffs’ standing only as to HD 21, HD 22, HD 30, and HD 38. The plaintiffs have not presented specific evidence that any of them have personally been subjected to a racial classification in relation to these latter four districts, and they do not argue that basis for standing. Instead, they attempt to base their standing on alternative grounds which we hold are meritless.

First, the plaintiffs contend that the plaintiffs who were members of the Apportionment Board have standing as a result of “being unable to fulfill their duty to create legal voting districts” — i.e., legislator standing. Pis.’ Mem. at 12. See, e.g., Coleman v. Miller, 307 U.S. 433, 59 S.Ct. 972, 83 L.Ed. 1385 (1939); Moore v. U.S. House of Representatives, 733 F.2d 946 (D.C.Cir.1984), cert. denied, 469 U.S. 1106, 105 S.Ct. 779, 83 L.Ed.2d 775 (1985); Kennedy v. Sampson, 511 F.2d 430 (D.C.Cir.1974). A recent decision of the Supreme Court, however, suggests that legislator standing based on institutional injury, under Coleman, is limited to instances of vote nullification with regard to a specific legislative action. Raines v. Byrd, — U.S. -, 117 S.Ct. 2312, 138 L.Ed.2d 849 (1997). Moreover, rather than an improper procedure (as in Coleman and Moore) or an incursion by another branch of government (as in Kennedy), the plaintiffs’ alleged injury in this case resulted from the majority’s decision to choose a course of action that the outnumbered members thought to be unconstitutional. Cf. Raines, — U.S. at-, 117 S.Ct. at 2320 (“In the vote on the Line Item Veto Act, their votes were given full effect. They simply lost that vote.”). Not only is the substance of the claimed injury distinguishable, but the precedent of granting the plaintiffs standing in this context would invite any legislator who was outvoted on a particular measure to bring a constitutional challenge to that measure merely because he or she had not prevailed. Cf. Raines, — U.S. at -, 117 S.Ct. at 2323 (Souter, J., concurring in the judgment) (“[HJarm to the[ ] interest in having government abide by the Constitution ... would be shared to the same extent by the public at large and thus provide no basis for suit____”) (citations omitted).

Second, the Board member plaintiffs contend that they have standing under the doctrine of jus tertii. Pis.’ Mem. at 13. This argument also fails, because the justification for third-party standing is not present here. Generally speaking, a plaintiff is permitted to assert the rights of a third party where the plaintiff has suffered his or her own injury-in-fact, there is a nexus between the right asserted and the relationship between the party and the third party, and the litigation will have a material impact on those third-party interests. See generally United States Department of Labor v. Triplett, 494 U.S. 715, 720-21, 110 S.Ct. 1428, 1431-32, 108 L.Ed.2d 701 (1990); Caplin & Drysdale v. United States, 491 U.S. 617, 623 n. 3, 109 S.Ct. 2646, 2651 n. 3, 105 L.Ed.2d 528 (1989); Eisenstadt v. Baird, 405 U.S. 438, 443-46, 92 S.Ct. 1029, 1033-34, 31 L.Ed.2d 349 (1972). In this case, there is no “special” relationship between the Board members and the voters of Ohio that is comparable to the direct relationships between doctors and patients or lawyers and clients, or even vendors and customers (see Craig v. Boren, 429 U.S. 190, 194-97, 97 S.Ct. 451, 455-57, 50 L.Ed.2d 397 (1976)). Any relationship between Board members and voters is too vague and general — and the defendants include the other Board members, who presumably have the same relationship with the voters, rather than some external entity that is impinging upon the asserted relationship. Furthermore, there is no obstacle to prevent the third parties from bringing their own claims; the question presented here could be raised by any voter from one of the contested districts.

In the alternative, plaintiffs request that this court “proceed to certify this action as a class action with respect to a subclass of voters who reside in the eight districts [at issue].” Pis.’ Mem. at 14. The plaintiffs make no attempt to show that they can meet the prerequisites stated in Fed.R.Civ.P. 23(a). Given the Supreme Court’s emphasis on treating each district individually, particularly with respect to standing, plaintiffs cannot demonstrate sufficient typicality of their claims. Fed.R.Civ.P. 23(a)(3). We cannot subvert the Supreme Court’s clear standing requirements by certifying a class to represent HD 21, HD 22, HD 30, and HD 38, when the plaintiffs do not allege that any current plaintiff individually could represent any of those districts.

We therefore hold that the plaintiffs have standing to challenge only HD 31, HD 39, HD 44, and HD 49.

III. THE SHAW CLAIM

A. The Application of Strict Scrutiny to Race-Based Districting

1. Shaw v. Reno (Shaw I)

The Supreme Court first recognized a cause of action under equal protection based on race-based districting in Shaw I. In that case, the Court held that the plaintiffs had stated a cognizable claim by alleging that reapportionment legislation, “though race-neutral on its face, rationally cannot be understood as anything other than an effort to separate voters into different districts on the basis of race, and that the separation lacks sufficient justification.” 509 U.S. at 649,113 S.Ct. at 2827. Such a claim was “analytically distinct” from a claim of vote dilution. Id. at 652,113 S.Ct. at 2830.³

The Court did not, however, hold that strict scrutiny is necessarily triggered by governmental use of race:

It is unnecessary for us to decide whether or how a reapportionment plan that, on its face, can be explained in nonracial terms successfully could be challenged. Thus, we express no view as to whether “the intentional creation of majority-minority districts, without more,” always gives rise to an equal-protection claim.

509 U.S. at 649, 113 S.Ct. at 2828. The Court nevertheless discussed how race-based redistrieting might be shown; here, the Court acknowledged the fact of race-consciousness in the redistrieting process, and suggested the role of traditional districting practices in avoiding strict scrutiny:

[R]e districting differs from other kinds of state decisionmaking in that the legislature always is aware of race when it draws district lines, just as it is aware of age, economic status, religious and political persuasion, and a variety of other demographic factors. That sort of race consciousness does not lead inevitably to impermissible race discrimination....

... [Proof of a “racial gerrymander” could be made by showing that] a State concentrated a dispersed minority population in a single district by disregarding traditional districting principles such as compactness, contiguity, and respect for political subdivisions. We emphasize that these criteria are important not because they are constitutionally required — they are not — but because they are objective factors that may serve to defeat a claim that a district has been gerrymandered on racial lines.

Id. at 646-47, 113 S.Ct. at 2827-28 (internal citation omitted) (second emphasis added). See also id. at 642,113 S.Ct. at 2824 (characterizing the appellants’ complaint as objecting to “redistrieting legislation that is so extremely irregular on its face that it rationally can be viewed only as an effort to segregate the races for purposes of voting, without regard for traditional districting principles and without sufficiently compelling justification.”) (emphasis added).⁴

2. Miller v. Johnson

Two years after Shaw I, the Court clarified the test for applying strict scrutiny to redistrieting legislation, articulating the threshold that the Court has continued to apply. In Miller, the Court explained that bizarreness of a district’s shape was not a prerequisite for strict scrutiny; rather, it was one type of evidence that a drawing of the district had been motivated by race. Bizarreness of shape “may be persuasive circumstantial evidence that race for its own sake, and not other districting principles, was the legislature’s dominant and controlling rationale in drawing its district lines.” 515 U.S. at 911-12, 115 S.Ct. at 2486 (emphases added). The Court went on to enunciate the threshold showing required of a Shaw plaintiff:

The plaintiffs burden is to show, either through circumstantial evidence of a district’s shape and demographics or more direct evidence going to legislative purpose, that race was the predominant factor motivating the legislature’s decision to place a significant number of voters within or without a particular district. To make this showing, a plaintiff must prove that the legislature subordinated traditional race-neutral districting principles, including but not limited to compactness, contiguity, [and] respect for political subdivisions or communities defined by actual shared interests, to racial considerations. Where these or other race-neutral considerations are the basis for redistricting legislation, and are not subordinated to race, a state can “defeat a claim that a district has been gerrymandered on racial lines.” These principles inform the plaintiff’s burden of proof at trial.

Id. at 915-16, 115 S.Ct. at 2488 (quoting Shaw I, 509 U.S. at 647, 113 S.Ct. at 2826-27) (emphases added) (internal citation omitted). See also id. at 917-18, 115 S.Ct. at 2489 (“Although a legislature’s compliance with ‘traditional districting principles ... ’ may well suffice to refute a claim of racial gerrymandering, appellants cannot make such a refutation where, as here, those factors were subordinated to racial objectives.”) (internal citation omitted).

Justice O’Connor joined the opinion of the Court, but also wrote a separate concurring opinion⁵:

I understand the threshold standard the Court adopts — “that the legislature subordinated traditional race-neutral districting principles ... to racial eonsiderations[ ]”— to be a demanding one. To invoke strict scrutiny, a plaintiff must show that the State has relied on race in substantial disregard of customary and traditional districting practices. Those practices provide a crucial frame of reference and therefore constitute a significant governing principle in cases of this kind____

... [Application of the Court’s standard helps achieve Shaw’s basic objective of making extreme instances of gerrymandering subject to meaningful judicial review.

515 U.S. at 928-29,115 S.Ct. at 2497 (O’Con-nor, J., concurring) (emphases added) (first ellipsis in original) (internal citation omitted).

Justice O’Connor’s perception of the threshold standard as a demanding test was not shared by Justice Ginsburg, who warned that the decision in Miller “open[ed] the way for federal litigation if ‘traditional ... districting principles’ arguably were accorded less weight than race.” 515 U.S. at 949, 115 S.Ct. at 2507 (Ginsburg, J., dissenting) (emphasis added). The previous opinion of this court incorporated Justice Ginsburg’s characterization of the Miller standard into its statement of the applicable threshold. See Quilter, 912 F.Supp. at 1026, 1027. The additional guidance of Shaw II and Bush, the clearer importance of Justice O’Connor’s position, and her further elucidation of her views in a separate concurrence in Bush, see infra, however, make clear that the “predominant factor”/“subordination” test requires more than a showing that traditional districting principles “were accorded less weight than race.”

3. Shaw v. Hunt (Shaw II)

Two cases decided on the same day, one year after Hays and Miller, further delineated the threshold analysis, particularly with regard to the role of traditional districting principles. The first was Shaw II, in which the five-member majority held that compliance with traditional districting principles does not necessarily shield a state from an equal protection attack. In his dissent, Justice Stevens stated that the Court’s previous opinions had established that “race-based districting which respects traditional districting principles does not give rise to constitutional suspicion,” and that “States may avoid strict scrutiny by complying with traditional districting principles.” 517 U.S. at -, -, 116 S.Ct. at 1913, 1914 (Stevens, J., dissenting). The majority, however, rejected Justice Stevens’s view, emphasizing that the focus of the inquiry was whether race had been the predominant consideration, even if traditional principles were involved. 517 U.S. at - & n. 3, 116 S.Ct. at 1901 & n. 3. The Court held that although two race-neutral, traditional criteria had been at work in the drawing of the North Carolina district at issue, “[t]hat the legislature addressed these interests does not in any way refute the fact that race was the legislature’s predominant consideration. Race was the criterion that, in the State’s view, could not be compromised. ... [Traditional districting criteria] came into play only after the race-based decision had been made.” Id. at -, 116 5.Ct. at 1901 (emphases added).

4. Bush v. Vera

Finally, the opinions of a fragmented Court in Bush, decided on the same day as Shaw II, shed light on the individual views of the various justices; as we noted above, Justice O’Connor’s opinions for the plurality and for herself separately are especially valuable in guiding our application of the threshold analysis. Writing for a three-judge plurality,⁶ Justice O’Connor stated:

[The findings of the District Court] that the State substantially neglected traditional districting criteria such as compactness, that it was committed from the outset to creating majority-minority districts, and that it manipulated district lines to exploit unprecedentedly detailed racial data [ ] together weigh in favor of the application of strict scrutiny. We do not hold that any one of these factors is independently sufficient to require strict scrutiny. The Constitution does not mandate regularity of district shape, and the neglect of traditional districting criteria is merely necessary, not sufficient. For strict scrutiny to apply, traditional districting criteria must be subordinated to race .... [T]he direct evidence of racial considerations, coupled with the fact that the computer program used [in redistricting] was significantly more sophisticated with respect to race than with respect to other demographic data, provides substantial evidence that it was race that led to the neglect of traditional districting criteria here. We must therefore consider what role other factors played in order to determine whether race predominated.

Several factors other than race were at work in the drawing of the districts. Traditional districting criteria were not entirely neglected____

Strict scrutiny would not be appropriate if race-neutral, traditional districting considerations predominated over racial ones____ Because it is clear that race was not the only factor that motivated the legislature to draw irregular district lines, we must scrutinize each challenged district to determine whether the District Court’s conclusion that race predominated over legitimate districting considerations, including incumbency, can be sustained.

517 U.S. at---, 116 S.Ct. at 1953-54 (first, second, and fifth emphases added) (internal citations omitted). In addition, the plurality opinion stated that “[i]f, as may commonly happen, traditional districting principles are substantially followed without much conscious thought, they cannot be said to have been ‘subordinated to race.’ ” Id. at •-, 116 S.Ct. at 1955.⁷ The opinion noted, however, that the state appellants did not deny that a challenged district showed “substantial disregard” for the principles of compactness and regularity, or that “the redistricters pursued unwaveringly” the goal of creating a majority-minority district. Id. The Court upheld the district court’s finding that traditional principles had been subordinated to race, so strict scrutiny applied.

In her separate concurring opinion, Justice O’Connor expressed her belief that Shaw II and Bush “present a workable framework” for reconciling the goals of the Voting Rights Act of 1965, 79 Stat. 437 (codified as amended at 42 U.S.C. § 1973 et seq.) (“VRA”), and the Fourteenth Amendment. 517 U.S. at -, 116 S.Ct. at 1969 (O’Connor, J., concurring). She then once again rephrased the threshold for strict scrutiny:

[S]o long as they do not subordinate traditional districting criteria to the use of race for its own sake or as a proxy, States may intentionally create majority-minority districts, and may otherwise take race into consideration, without coming under strict scrutiny. Only if traditional districting criteria are neglected and that neglect is predominantly due to the misuse of race does strict scrutiny apply.

Id. (some emphasis added) (internal citations omitted).

B. Policy Considerations

The development of the Shaw line of cases has raised the specter of tension between two distinct areas of voting rights law, potentially placing states in an impossible position; if strict scrutiny of districting plans were easily triggered, states might be threatened on one side by potential litigation under the VRA for failure to create majority-minority districts, and on the other side by potential litigation under the Equal Protection Clause for using race in drawing districts. See. e.g., Bush, 517 U.S. at -, 116 S.Ct. at 1968 (O’Connor, J., concurring) (referring to states’ and lower courts’ “toil[ing] with the twin demands of the Fourteenth Amendment and the Voting Rights Act”). See also Karlan, supra, at 289 (“States now find themselves walking a tightrope: if they draw majority-black districts they face lawsuits under the equal protection clause; if they do not, they face both objections under section 5 of the Voting Rights Act and lawsuits under section 2.”) (footnotes omitted); Guinn & Sewell, supra, at 910 (“The dilemma essentially is whether a state must entertain for [§ 2] purposes a district which, if drawn, would force strict scrutiny.”); Laughlin McDonald, Essay, Can Minority Voting Rights Survive Miller v. Johnson, 1 MichJ.Race & L. 119, 147-50 (1996). Nearly every plan would be challenged either because the districters considered race or because they did not, and nearly every plan would be subject to review by a federal court.

Although a districting plan might survive strict scrutiny, it could do so only if a federal court held that the state did indeed have a compelling interest to justify considering race and that the districting plan chosen by the state was narrowly tailored to serve that interest. Bush, 517 U.S. at -, 116 S.Ct. at 1960; Shaw II, 517 U.S. at -, 116 S.Ct. at 1902; Miller, 515 U.S. at 919-21, 115 S.Ct. at 2490. A plan subjected to strict scrutiny would be saved from unconstitutionality only if the state was “right.”⁸ As a result, litigation would be virtually inevitable; any consideration of race in redistricting would be tested in the courts. Justice Ginsburg raised precisely this concern in Miller:

The Court’s disposition renders redistrieting perilous work for state legislatures. Statutory mandates and political realities may require States to consider race when drawing district lines. But today’s decision is a counterforce; it opens the way for federal litigation if ‘traditional ... districting principles’ arguably were accorded less weight than race----

Only after litigation — under either the Voting Rights Act, the Court’s new Miller standard, or both — will States now be assured that plans conscious of race are safe. Federal judges in large numbers may be drawn into the fray. This enlargement of the judicial role is unwarranted.

515 U.S. at 949, 115 S.Ct. at 2507 (internal citation omitted). See also Abrams v. Johnson, — U.S. -, ---, 117 S.Ct. 1925, 1949-50, 138 L.Ed.2d 285 (1997) (Breyer, J., dissenting) (warning of legislators’ difficulty in discerning what the predominant factor test means, and of “the risk of significant judicial entanglement in the inherently political redistricting process”).

Justice O’Connor also has noted the tension. See Bush, 517 U.S. at --, 116 S.Ct. at 1970 (O’Connor, J., concurring):

[T]he application of the principles that I have outlined sometimes requires difficult exercises of judgment. That difficulty is inevitable. The Voting Rights Act requires the States and the courts to take action to remedy the reality of racial inequality in our political system, sometimes necessitating race-based action, while the Fourteenth Amendment requires us to look with suspicion on the excessive use of racial considerations by the government.

But see id. at -, 116 S.Ct. at 1968 (stating her view that the results test of VRA § 2 “can co-exist in principle and in practice with Shaw v. Reno ”). Recognizing the precarious position in which these “twin” constraints place states, id. Justice O’Connor has accordingly sought to interpret the threshold as “demanding” and applicable only in “extreme” cases. See Miller, 515 U.S. at 928-29, 115 S.Ct. at 2497 (O’Connor, J., concurring).

In addition to the “tightrope” that the VRA and Shaw force states to walk, it is worth noting that a state cannot be entirely certain of surviving strict scrutiny, even if it believes that its consideration of race is necessary to avoid § 2 liability and that its plan is narrowly tailored to avoid such liability. Although at least five members of the Court appear to have suggested that compliance with § 2 of the VRA can be a compelling interest for purposes of strict scrutiny, the Court itself has not yet so held. See, e.g., Miller, 515 U.S. at 921, 115 S.Ct. at 2490-91 (stating that “[wjhether or not in some cases compliance with the Voting Rights Act, standing alone, can provide a compelling interest independent of any interest in remedying past discrimination, it cannot do so here [because the challenged plan was not required by the VRA]”.); Shaw II, 517 U.S. at -, 116 S.Ct. at 1903 (“Here once again we do not reach that question [reserved in Miller ]” because the challenged district was not required by VRA § 5 and was “not a remedy narrowly tailored to the State’s professed interest in avoiding § 2 liability”); Bush, 517 U.S. at -, 116 S.Ct. at 1960 (“As we have done in each of our previous cases in which this argument has been raised as a defense to charges of racial gerrymandering, we assume without deciding that compliance with [§ 2] ... can be a compelling state interest.”); Abrams, — U.S. at -, 117 S.Ct. at 1936 (again assuming without deciding). But see Bush, 517 U.S. at — , 116 S.Ct. at 1968-70 (O’Connor, J., concurring) (stating that § 2 can satisfy the compelling interest prong of strict scrutiny) id. at -, 116 S.Ct. at 1989 (Stevens, J., dissenting, joined by Ginsburg, J., and Breyer, J. (see id. at -, 116 S.Ct. at 1974)) (appearing to agree); id. at -, 116 S.Ct. at 2007 (Souter, J., dissenting, joined by Ginsburg, J., and Breyer, J.) (same).

As we apply the threshold analysis developed by the Supreme Court in Shaw cases, we are mindful of the dangers that a low threshold (easily invoking strict scrutiny) poses for states. We therefore follow Justice O’Connor’s lead in applying a demanding threshold that allows states some degree of latitude to consider race in drawing districts. While adherence to traditional districting principles does not automatically create a “safe harbor” from strict scrutiny, we will not apply strict scrutiny without the “necessary” showing by the plaintiffs that the defendants neglected traditional districting criteria and that that neglect is predominantly due to the misuse of race.

C. Traditional Districting Principles

As a preliminary step, it is necessary to define “traditional districting principles” as that concept is repeatedly emphasized in the Shaw line of cases. In general, traditional criteria include “compactness, contiguity, and respect for political subdivisions.” Shaw I, 509 U.S. at 647, 113 S.Ct. at 2826; see also Reynolds v. Sims 377 U.S. 533, 578, 84 S.Ct. 1362, 1390, 12 L.Ed.2d 506 (1964) (holding that a “desire to maintain the integrity of various political subdivisions” and to “provide for compact districts of contiguous territory” are legitimate state interests in apportionment); Karcher v. Daggett, 462 U.S. 725, 756 n. 18, 103 S.Ct. 2653, 2673 n. 18, 77 L.Ed.2d 133 (1983) (Stevens, J., concurring) (noting that, as of 1981, one state statute and twenty-one state constitutions required compactness, and that two state statutes and twenty-seven constitutions required contiguity). The Shaw claim cases have repeatedly cited these criteria as traditional. See, e.g., Miller, 515 U.S. at 915-16, 115 S.Ct. at 2488 (defining “traditional race-neutral districting principles” as “including but not limited to compactness, contiguity, [and] respect for political subdivisions or communities defined by actual shared interests”); Bush, 517 U.S. at ---, 116 S.Ct. at 1953-54 (citing as evidence that “[traditional districting criteria were not entirely neglected” the maintenance of the integrity of county lines, the grouping of principal cities with their surrounding urban areas, the prevalence of incumbency protection, and the preservation of communities of interest (as determined by evidence other than racial data)).

The State of Ohio has established districting criteria to be followed, including the customary principles discussed above, in Article XI of the Ohio Constitution.⁹ Many states have codified traditional districting criteria, either in statutes or in constitutions. See Karcher, cited above. Ohio, however, appears to have prescribed more extensive and specific criteria than any other state. See Transcript of Trial Proceedings, Part 1 (November 16, 1994), R. 311, at 74-75 (testimony of Gordon Henderson, expert witness for the plaintiffs, to the effect that the detail of Ohio’s apportionment rules is unusual). Because Ohio has chosen to establish such detailed criteria and to constitutionalize them, the defendants argue that this court should abstain from reaching the issue of compliance with traditional districting principles, leaving it instead to the Ohio Supreme Court. The constitutionalization of districting criteria, however, does not preclude a federal court from applying the threshold analysis developed in the Shaw claim cases. If it did, Ohio, unlike other states, would be effectively immune from federal court review of its apportionment plans under Shaw, on grounds of abstention; moreover, any other state would be able to shield itself from Shaw challenges by similarly codifying or constitutionalizing its districting procedures. Such a result is untenable.

We reject the defendants’ argument that we cannot address the question of their attention to or disregard of Article XI of the Ohio Constitution, at least to the extent that the state constitutional requirements coincide with the traditional criteria recognized by the United States Supreme Court.¹⁰ The standard articulated by the Supreme Court does not require us to find that the defendants violated a state constitutional provision, or alternatively, that the defendants complied with a state constitutional provision; rather, the focus of the inquiry under Supreme Court precedent is whether defendants appear to have considered race within the context of applying traditional districting principles, or to have shoved traditional criteria aside in order to achieve a particular race-based result — in other words, whether the defendants substantially followed the prescribed principles or flagrantly ignored them.

The defendants contend that this court is precluded from holding that they neglected or violated the criteria of Article XI of the Ohio Constitution by the decision of the Ohio Supreme Court in Voinovich v. Ferguson, 63 Ohio St.3d 198, 586 N.E.2d 1020 (1992). The defendants argue that the entire plan, and all the arguments against it, were before that court; they point to Justice Resnick’s detailed dissent, in which she discussed the plan as a whole and applied §§ 3, 4, 7, 9, and 10. 63 Ohio St.3d at 214-30, 586 N.E.2d 1020. They then rely on vague language from the last line of the per curiam opinion, which stated that “we find the plan to be constitutional.” Id. at 200, 586 N.E.2d 1020. The defendants contend that the Ohio Supreme Court considered the entire plan, and all the applicable provisions of Article XI, and declared the plan as a whole to be in compliance with the state constitution, precluding this court from finding otherwise.

The fractured opinions in Voinovich, however, contradict the defendants’ position. First, the per curiam opinion, which four of seven justices joined, was just over half a page in length. It discussed only Senate District 32, and applied only Ohio Const., art. XI, §§ 4, 9, and 11, holding that those three provisions are coequal and that when they conflict, the apportionment board has the discretion to choose which to follow. 63 Ohio St.3d at 200, 586 N.E.2d 1020. Almost every justice wrote separately, shedding light on what each justice thought the per curiam opinion did and did not hold. Chief Justice Moyer, in a concurring opinion, stated that he believed that the only justiciable issues presented by the plaintiffs in that case¹¹ were “the dispute regarding Senate District 32 and House District 68 and the inconsistency between Sections 3, 4, 8 and 11 of Article XI....” Id, at 201-02, 586 N.E.2d 1020. Justice Holmes, “concurring separately,” would have held that the plan as a whole did not violate Article XI “and specifically Sections 7 and 10 thereof,” and that House District 68 and Senate District 32 were constitutionally drawn under Article XI and did not violate Sections 3, 4, 8, or 11. Id. at 202-OS, 586 N.E.2d 1020. Justice Douglas, concurring with the per curiam opinion, but “for different reasons than stated therein and with some reservations” (and with the agreement of Milligan, J.), narrowed the inquiry to Senate District 32 and to an apparent conflict between Sections 4 and 11. Id. at 205-14, 586 N.E.2d 1020.

Justice Resnick, in a lengthy dissent joined by Justice Brown, analyzed the entire plan under all of Article XI and found numerous state constitutional violations. 63 Ohio St.3d at 214-30, 586 N.E.2d 1020. Hers appears to be the only opinion that fully addressed the plaintiffs’ request that the plan as a whole be declared in conformity in all respects with Article XI; ironically, she concluded otherwise, and would have ordered that the plan be redrawn. Justice Sweeney also dissented, believing that the parties did not have standing, but stating that assuming arguendo that they did, he would concur in Justice Res-nick’s analysis. Id. at 214, 586 N.E.2d 1020.

The only clear conclusion to be drawn from the state court’s opinion is that it came to no clear conclusion as to the issues before this court. That opinion, therefore, neither precludes this court’s consideration of the defendants’ attention to traditional districting principles with regard to HD 31, HD 39, HD 44, and HD 49, nor mandates a particular finding by this court.

D. The Threshold Inquiry

The burden is on the plaintiffs to make a showing that the defendants substantially disregarded or neglected traditional districting principles and that they did so predominantly due to use of racial considerations in drawing the challenged districts. See supra Part III.A. As this court previously found, the plaintiffs presented direct evidence that clearly showed that the defendants used racial considerations in drawing the districts. See Quilter, 912 F.Supp. at 1023-25. James R. Tilling drew the plan that formed the basis for the reapportionment plan ultimately adopted by the Board.¹² Tilling’s handwritten notes documenting the process by which he began drawing the reapportionment plan indicate that, for each county containing a significant minority population, Tilling displayed the minority population of the county on the computer screen, then proceeded to draw “minority districts,” including HD 31, HD 39, HD 44, and HD 49, first.¹³ R. 104, Ex. 120. The Apportionment Board Findings and Conclusions, adopted in February 1992, show that: the relative percentage of black population in what is now designated HD 31 was increased for the purpose of ensuring the election of a black candidate after the existing incumbent left office; the relative percentage of black population in what is now designated HD 39 was increased for the same reason; and the relative percentages of minority population in HD 44 and HD 49 were intentionally increased. R. 147, Ex. A, ¶¶ 182, 183,191, 194, 195.¹⁴ We again find that race was a substantial factor in the drawing of the challenged districts. To invoke strict scrutiny of those districts, however, the plaintiffs must also show that the state substantially disregarded or neglected traditional districting principles — that race was the predominant factor, the criterion that could not be compromised. See supra Part III.A. We hold that the plaintiffs have failed to make this threshold showing.

The plaintiffs do not contend that the challenged districts are noneompact or noncontiguous, or that political subdivisions were not respected. Instead, they have pointed only to Ohio Const., art. XI, § 7(D) as a principle that the defendants allegedly neglected, or subordinated to race, in the challenged districts. Section 7(D) requires that existing district boundaries (established by the previous apportionment) be maintained “to the extent reasonably consistent with the requirements of section 3 [dictating the permissible variance in population ratio].... ” As we stated above, we need not decide whether the defendants complied with or violated § 7(D); we need only decide whether the defendants pushed § 7(D) aside to meet their racial objectives. First, we note that we doubt that violation or neglect of this single criterion, one out of almost a dozen sections and subsections in Article XI that specifically establish guidelines for drawing districts, would be sufficient to show the kind of flagrant disregard that would indicate that traditional districting principles were subordinated to racial objectives, absent any allegation that other principles were neglected. Second, § 7(D) does not appear to embody a traditional districting criterion previously recognized by the Supreme Court. The plaintiffs do not allege that the defendants did not seek to draw compact, contiguous districts that respected the integrity of political subdivisions (such as wards and precincts), the criteria typically mentioned by the Supreme Court as particularly relevant.

Even if the requirement of § 7(D) is a traditional principle, however, we find that it was not subordinated to race. Although Tilling apparently did not always follow § 7(D), as he believed that it conflicted with other Article XI provisions, including the prioritizing standards of § 10, forcing him to violate § 7(D),¹⁵ the evidence does not indicate that the neglect of § 7(D) was related to Tilling’s objective of increasing the percentage of minority population in the challenged districts. Without evidence showing some relation between the use of race and the disregard of customary districting principles — evidence that such principles were subordinated to race, rather than coincidentally neglected — the threshold for invoking strict scrutiny is not met. Absent such evidence, we cannot conclude that traditional principles “came into play only after the race-based decision had been made,” see Shaw II, 517 U.S. at-, 116 S.Ct. at 1901, rather than having been followed as a matter of course (i.e., “without much conscious thought,” see Bush, 517 U.S. at -, 116 S.Ct. at 1955).

We believe this ease is factually distinguishable from Bush, which was also a “mixed motive” case, in which the defendants admittedly used race in drawing district lines but in which other goals also played a role. In Bush, the plaintiffs presented both objective and subjective evidence of racial motivation: a plurality of the Supreme Court agreed with the district court’s finding that the challenged districts “‘ha[d] no integrity in terms of traditional, neutral redistricting criteria,’” and state officials conceded that they had deliberately sought to create majority-minority districts. 517 U.S. at-- -, 116 S.Ct. at 1952-53. That goal had been aided by a computer program that provided quite detailed data on racial composition, but not on other voter demographics. Some traditional principles had been followed: none of the districts was as widely dispersed as the North Carolina district invalidated in Shaw II, two of the districts maintained the integrity of county boundaries, all of the districts grouped a city with parts of its suburban area, and incumbency protection was a substantial factor statewide. Id. at---, 116 S.Ct. at 1953-54.

The Bush defendants did not deny that District 30 in Texas showed “substantial disregard” for compactness and regularity, and that the redistrieters “pursued unwaveringly” the goal of drawing a majority-minority district. 517 U.S. at-, 116 S.Ct. at 1955. The plurality opinion stated:

The record discloses intensive and pervasive use of race both as a proxy [for incumbency protection] ... and for its own sake in maximizing the minority population of District 30 regardless of traditional districting principles. District 30’s combination of a bizarre, noncompact shape and overwhelming evidence that that shape was essentially dictated by racial considerations ... is exceptional____ That combination of characteristics leads us to conclude that District 30 is subject to strict scrutiny.

Id. at-, 116 S.Ct. at 1958.

As to Texas Districts 18 and 29, the Bush plurality noted that they were “two of the three least regular districts in the country,” and agreed with the district court that “[n]ot only are the shapes of the districts bizarre; they also exhibit utter disregard of city limits, local election precincts, and voter tabulation district lines.” 517 U.S. at-,-, 116 S.Ct. at 1958, 1959 (citations omitted); see also id. at---, 116 S.Ct. at 1959-60 (quoting the district court’s conclusion that “Districts 18 and 29 are formed in utter disregard for traditional redistricting criteria” and were unexplainable on nonracial grounds). Moreover, the district court had found that incumbency protection had been “overwhelmed ... by the State’s efforts to maximize racial divisions,” and that “the intricacy of the lines drawn, separating Hispanic voters from African-American voters on a bloek-by-block basis, betrays the critical impact of the block-by-block racial data available” via the computer program. Id. at-, 116 S.Ct. at 1959.

The case before this court is considerably different. Most significantly, there is no evidence, aside from the admitted violation of § 7(D) (which, as we stated above, may not express a traditional principle), to suggest that the defendants disregarded traditional districting principles at all, let alone “utterly.” In contrast to the Texas redistrieters, the defendants here did not ignore customary criteria in pursuit of their racial objectives. There is no challenge regarding the contiguity or compactness of the districts. The challenged districts do not indicate disregard for political subdivisions, such as the bloek-by-bloek gerrymandering of Texas Districts 29 and 30. Also, we note that the fact that Tilling was aided by a computer program that provided data on racial composition is not in itself sufficient to demonstrate that race overwhelmed other criteria; Bush relied on a “combination of characteristics” to hold that strict scrutiny applied. We do not find a combination of characteristics sufficient to invoke strict scrutiny in this case.¹⁶

IV. RATIONAL BASIS SCRUTINY

Having found that strict scrutiny is not applicable to the challenged districts, we now must determine whether a less demanding standard applies, and if so, whether the districts meet that standard.

Generally, a claim under the Equal Protection Clause is evaluated under a rational basis standard of review. See City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 440, 105 S.Ct. 3249, 3254 (1985). Racial classifications are almost always subject to strict scrutiny. See City of Richmond v. J.A. Croson Co., 488 U.S. 469, 493-94, 109 S.Ct. 706, 721-22,102 L.Ed.2d 854 (1989). Shaw 1 held, in essence, that in certain “exceptional” cases, an electoral district could be seen as a racial classification; though a district is a facially neutral classification, plaintiffs could invoke strict scrutiny by showing (through disregard of traditional districting principles) that it “could not rationally be understood as anything other than” a racial classification. See Shaw I, 509 U.S. at 642-44, 646-47, 649, 113 S.Ct. at 2824-25, 2826-27, 2827-28. If, however, plaintiffs cannot show that race was the “predominant factor” to which traditional districting principles were “subordinated,” and thus cannot meet the threshold for triggering strict scrutiny, see Miller, 515 U.S. at 915-16, 115 S.Ct. at 2488, it follows that the facially neutral classification (the electoral district) will be subject, at most, to rational basis review.

Arguably, no level of scrutiny is applicable once the plaintiffs fail to meet the threshold established by the Shaw cases. Shaw I was the first case to recognize the “analytically distinct” claim under equal protection that an electoral district could constitute an unjustified racial classification. Absent a sufficient showing that race was the predominant factor in the creation of the district, perhaps the elaim not only fails to invoke strict scrutiny, but also fails to constitute a valid equal protection claim as recognized by Shaw I. See, e.g., DeWitt v. Wilson, 856 F.Supp. 1409, 1415 (E.D.Cal.1994) (Where the court found that a redistricting plan was not racial gerrymandering, because race had been considered along with traditional districting principles, the court held that strict scrutiny was not required and that the plaintiffs had failed to state a claim under Shaw I.) summarily aff'd. mem., 515 U.S. 1170, 115 S.Ct. 2637, 132 L.Ed.2d 876 (1995). Under that interpretation of Supreme Court precedent, we would find no valid claim under Shaw I and would enter judgment for the defendants.

In many situations, however, the Supreme Court has applied rational basis scrutiny after it has decided that strict scrutiny is inapplicable. See, e.g., Kadrmas v. Dickinson Pub. Sch., 487 U.S. 450, 457-58, 108 S.Ct. 2481, 2486-87, 101 L.Ed.2d 399 (1988); Martinez v. Bynum, 461 U.S. 321, 328 n. 7, 103 S.Ct. 1838, 1842 n. 7, 75 L.Ed.2d 879 (1983). Therefore, we will subject the challenged districts to rational basis scrutiny. This low level of scrutiny requires that a classification “must be rationally related to a legitimate governmental purpose.” Clark v. Jeter, 486 U.S. 456, 461, 108 S.Ct. 1910, 1914 100 L.Ed.2d 465 (1988); see also Cleburne, 473 U.S. at 440, 105 S.Ct. at 3254 (“rationally related to a legitimate state interest”). We apply this standard with particular deference, given federal courts’ reluctance to interfere with state apportionment activities:

Federal court review of districting legislation represents a serious intrusion on the most vital of local functions____ Electoral districting is a most difficult subject for legislatures, and so the States must have discretion to exercise the political judgment necessary to balance competing interests____ The courts, in assessing the sufficiency of a challenge to a districting plan, must be sensitive to the complex interplay of forces that enter a legislature’s redistricting calculus.

Miller, 515 U.S. at 915-16, 115 S.Ct. at 2488; see also id. at 905, 115 S.Ct. at 2483 (“[Application of [equal protection] principles to electoral districting is a most delicate task.”). We thus hold that an especially deferential standard of scrutiny applies.

The Supreme Court has explicitly recognized that redistricting is unique in that legislatures are always aware of race, and that a finding of racial discrimination requires more than mere race consciousness. See, e.g., Shawl, 509 U.S. at 646, 113 S.Ct. at 2826 (“[R]edistricting differs from other kinds of state decisionmaking in that the legislature always is aware of race when it draws district lines, just as it is aware of ... other demographic factors. That sort of race consciousness does not lead inevitably to impermissible race discrimination.”). In fact, given the demands of the Voting Rights Act, which requires some degree of race consciousness on the part of states engaged in redistricting, consideration of race, in conjunction with (and not in predomination over) other demographic data and traditional districting criteria, clearly is a legitimate state interest.¹⁷ Consideration of other data and application of customary districting principles are also legitimate state interests in the apportionment process — even more so here, where the state has prescribed detailed criteria and practices in the state constitution.

We have no reason to conclude that the districts at issue are not reasonably related to these legitimate interests. As we have discussed above, the plaintiffs have not alleged that the defendants did not follow traditional districting principles, with the lone exception of Article XI, § 7(D) of the Ohio Constitution. Absent any evidence of irrationality, we find that the districts survive deferential scrutiny.

V. CONCLUSION

Although we find that race was a substantial factor in the drawing of the challenged districts, we find that it was not a “dominant and controlling rationale” to which traditional districting principles were subordinated; rather, race was a factor that was considered within the constraints of those traditions districting principles. We thus hold that strict scrutiny of the challenged districts is not appropriate under governing Supreme Court precedent. Applying rational basis scrutiny, we hold that the Apportionment Board had a rational basis for creating the challenged districts. We therefore enter judgment for the defendants.

IT IS SO ORDERED.

JUDGMENT ENTRY

For the reasons set forth in the memorandum opinion filed contemporaneously with this Judgment Entry, final judgment is rendered for the defendants. Each party to pay its own costs. Case Closed.

1 . The message that [racially gerrymandered] districting sends to elected representatives is equally pernicious. When a district obviously is created solely to effectuate the perceived common interests of one racial group, elected officials are more likely to believe that their primary obligation is to represent only the members of that group, rather than their constituency as a whole.

Shawl, 509 U.S. at 648, 113 S.Ct. at 2827. But this conception of harm arguably is based on an assumption that Shaw I rejected:

Although the Shaw Court attributed representational harms solely to a message sent by the legislature’s action, those harms can only come about if the message is received — that is, first, if all or most black voters support the same candidate, and, second, if the successful candidate ignores the interests of her white constituents. Respondents' standing, in other words, ultimately depends on the very premise the Court purports to abhor: that voters of a particular race " ‘think alike, share the same political interests, and will prefer the same candidates at the polls.’ ”

Miller v. Johnson, 515 U.S. 900, 927-29, 115 S.Ct. 2475, 2497-98, 132 L.Ed.2d 762 (1995) (Stevens, J., dissenting) (quoting Miller majority, 515 U.S. at 911-12, 115 S.Ct. at 2486 (quoting Shawl, 509 U.S. at 647, 113 S.Ct. at 2826-27)).

2 . Although the plaintiffs in the instant case concede, as they must, that the Supreme Court's clear enunciation of the standing rule in Shaw II is binding upon this court, they contend that the restriction of the scope of the challenge (i.e., a plaintiff has standing only to challenge the particular district on which standing is grounded) did not follow from Hays or Miller. We note, however, that neither of those cases presented this question clearly; neither case featured plaintiffs who resided in an allegedly gerrymandered district and who sought to challenge a districting plan as a whole. In Hays, the plaintiffs challenged Louisiana's districting legislation in its entirety, but the Court based its holding that they did not have standing on the fact that no plaintiff resided in the particular district they alleged had been racially gerrymandered; the opinion did not address whether a plaintiff who did reside in that district would have standing to challenge the entire state plan. 515 U.S. at 746, 115 S.Ct. at 2437. In Miller, on the other hand, the plaintiffs challenged Georgia's Eleventh (congressional) District; all of the plaintiffs resided in that district and therefore had standing to challenge it.

Some commentators have suggested that the Supreme Court’s development of standing in this area is conceptually flawed for a variety of reasons, including that a shift in emphasis from representational harms to expressive harms arguably undermines the justification for residence-based standing. See, e.g., Nagel, supra, at 196 ("As announced in Hays and applied in Miller, the standing requirements for a Shaw claim are satisfied by a general allegation of state wrongdoing, without any showing of personal injuries and unsubstantiated by any evidence.”) (footnote omitted). See also Karlan, supra, at 292 ("Despite its surface plausibility in limiting standing to voters within a challenged district, Hays rested on a series of illogical and constitutionally unacceptable premises.... [I]t is simply wrong to suppose that all individuals within a challenged district have suffered a racial classification.”); id. at 296-97 ("The Court’s nonchalance about standing conveys a central point about the wrongful districting cases: they really aren’t individual rights lawsuits in the first place. Rather they concern the meaning of 'our system of representative democracy.' ”) (footnote omitted); Jack Pritchard, Casenote, United States v. Hays: A Winnowing of Standing to Sue in Racial Gerrymandering Claims, 47 Mercer L.Rev. 955, 964 (1996) ("[T]here is no real difference between residents and nonresidents in reference to racially gerrymandered districts____ Those who reside outside the gerrymandered district may be harmed in the same manner and receive the same injuries as those who are residents of that district.”) (footnotes omitted); Samuel Issacharoff & Thomas C. Goldstein, Identifying the Harm in Racial Gerrymandering Claims, 1 Mich.J. Race & L. 47, 64 (1996):

As the modem Court has noted, the racial gerrymandering cases resemble Gomillion in that the government drew boundary lines in order to include only a certain racial proportion. But in Hays, Justice O'Connor concluded that only the citizens within a district were presumptively injured, not those that were excluded, which is to say that the Whites in Tuskegee could sue but not the excluded Blacks. That reasoning simply fails to recognize that, in districting, a decision to include one kind of person is fundamentally also a decision to exclude other kinds of people,

(internal citation omitted) (referring to Gomillion v. Lightfoot, 364 U.S. 339, 81 S.Ct. 125, 5 L.Ed.2d 110 (1960), in which the Court invalidated the State of Alabama's redrawing of the boundaries of Tuskegee, which excluded ninety-six percent of the cily’s black residents and almost no whites).

Regardless of its possible conceptual problems, however, we are bound by the Supreme Court’s rule on standing in Shaw cases.

3 . Shaw recognized a claim "analytically distinct” from a vote dilution claim. Whereas a vote dilution claim alleges that the State has enacted a particular voting scheme as a purposeful device "to minimize or cancel out the voting potential of racial or ethnic minorities,” an action disadvantaging voters of a particular race, the essence of the equal protection claim recognized in Shaw is that the State has used race as a basis for separating voters into districts.

Miller, 515 U.S. at 908-12, 115 S.Ct. at 2485-86.

4 . It is worth noting that Shaw I involved a challenge to an oddly shaped district, where the shape of the district was itself the alleged objective evidence of racial discrimination. In the present case, on the other hand, the shapes of the challenged districts are unremarkable, but the defendants admittedly considered race in drawing the districts. For that reason, Shaw I is not directly on point; we discuss it in some detail because it makes clear that traditional districting principles have played a significant role in the application of strict scrutiny since the conception of the Shaw claim.

5 . We pay particular attention to Justice O'Con-nor's views in this area because she has played an important role in every case relevant to the threshold analysis. She authored the majority opinion in Shaw I and the plurality opinion in Bush, and she provided the deciding vote in Miller and Shaw II. Her concurring opinions in Miller and Bush shed significant light on her views of the role of strict scrutiny and of the height of the threshold. Given Justice O'Con-nor’s pivotal role in Shaw claim cases, those separate opinions carry special weight. See, e.g., Issacharoff & Goldstein, supra, at 60 (noting that Justice O’Connor provided "the indispensable fifth vote” in Miller, and stating that her separate concurrence "is widely viewed as an important limit on Miller's scope.”); id. at 50 ("Justice O’Connor [] agrees that racial classifications carry dangers, but differs from the others on both the precise degree of racial motivation that causes harm and just what that harm is.”); David M. Guinn & Paul C. Sewell, Miller v. Johnson: Redistricting and the Elusive Search for a Safe Harbor, 47 Baylor L. Rev. 895,904-06 (1995) (discussing Justice O'Connor’s concurrence in Miller and predicting that her views in the then-pending Shaw II and Bush cases "may be dispositive”).

6 . Chief Justice Rehnquist and Justice Kennedy joined the plurality opinion, though Justice Kennedy wrote separately to disavow certain language in that opinion. See 517 U.S. at -, 116 S.Ct. at 1971 ("|T|he statements in Part II of the opinion that strict scrutiny would not apply to all cases of intentional creation of majority-minority districts ... are unnecessary to our decision, for strict scrutiny applies here. I do not consider these dicta to commit me to any position on the question____”) (Kennedy, J., concurring). Justices Scalia and Thomas concurred in the judgment with a separate opinion authored by Justice Thomas. 517 U.S. at-, 116 S.Ct. at 1972.

7 . We do not believe that this statement conflicts with the Court’s holding in Shaw II that compliance with traditional districting principles does not necessarily preclude strict scrutiny. The threshold inquiry examines the priorities of the state actors — i.e., race was the first consideration (the one that "could not be compromised,” Shaw II, 517 U.S. at -, 116 S.Ct. at 1901), and traditional principles "came into play only after the race-based decision had been made,” 517 U.S. at-, 116 S.Ct. at 1901 (emphasis added), then strict scrutiny is triggered; if, on the other hand, traditional principles were followed first ("without much conscious thought”), and then racial considerations were fit into that framework, the threshold is not met. See. e.g., DeWitt v. Wilson, 856 F.Supp. 1409, 1413 (E.D.Cal. 1994) ("[I]n redistricting, consciousness of race does not give rise to a claim of racial gerrymandering when race is considered along with traditional redistricting principles ....”), summarily aff'd. mem., 515 U.S. 1170, 115 S.Ct. 2637, 132 L.Ed.2d 876 (1995). See also Abrams v. Johnson, - U.S. -, -, 117 S.Ct. 1925, 1934, 138 L.Ed.2d 285 (1997) (upholding a district court’s judgment drawing a plan with one majority-black district, rather than two, where the court had considered "that a black voting population was one factor in drawing a district," but had concluded that retaining a second majority-black district would require that one factor to predominate over traditional districting principles).

We emphasize that we use the word "first" in reference to prioritization, not to suggest a chronological process; we similarly interpret the Supreme Court’s use of "after.” A literal chronological reading would substitute an overly formalistic approach in place of the Court's "predominant factor” analysis.

8 . For example, the defendants in the present case contended that they believed that avoidance of liability under § 2 of the VRA required them to consider race in drawing the challenged districts; this court, however, held that the plan failed strict scrutiny because the defendants did not have a strong basis in evidence for that belief, since the evidence established that white bloc-voting (which is required to prove a § 2 claim) did not exist in Ohio. See Quilter, 912 F.Supp. at 1028-29. In other words, the court found that the defendants were not “right.”

9 . The relevant provisions of Article XI are as follows (in the interest of brevity, we paraphrase where possible):

§ 2: The whole population of the state, as determined by the federal decennial census, shall be divided by ninety-nine to determine the ratio of house representation, and by thirty-three to determine the ratio of senate representation.

§ 3: The population of each house district shall he substantially equal to the ratio of house representation determined by § 2, and "in no event” shall any house district contain a population of less than ninety-live percent or more than 105 percent of that ratio, except "where reasonable effort is made to avoid dividing a county in accordance with section 9____"

§ 4: The population of each senate district shall be substantially equal to the ratio of senate representation determined by § 2, and "in no event” shall any senate district contain a populatical of less than ninety-five percent or more than 105 percent of that ratio.

§ 6: District boundaries shall not be changed until the next census, notwithstanding changes in boundaries of political subdivisions or city wards. District boundaries shall be created by using the boundaries of political subdivisions and city wards as they exist at the time of the census on which the apportionment is based, "or such other basis as the general assembly has directed.”

§ 7: Captioned "Compact House districts composed of contiguous territory”

(A): Every house district "shall be compact and composed of contiguous territory, and the boundary of each district shall be a single nonintersecting continuous line. To the extent consistent with the requirements of [§ 3] ... the boundary lines of districts shall be so drawn as to delineate an area containing one or more whole counties.”

(B): "Where the requirements of [§ 3] ... cannot feasibly be attained by forming a district from a whole county or counties, such district shall be formed by combining the areas of governmental units giving preference in the order named to counties, townships, municipalities, and city wards.’’

(C): "Where the requirements of [§ 3] ... cannot feasibly be attained by combining the areas of governmental units as prescribed in division (B) of this section, only one such unit may be divided between two districts, giving preference in the selection of a unit for division to a township, a city ward, a city, and a village in the order named.”

(D): "In making a new apportionment, district boundaries established by the preceding apportionment shall be adopted to the extent reasonably consistent with the requirements of [§ 3]....”

§ 8: "A county having at least one house ... ratio of representation shall have as many house ... districts wholly within the boundaries of the county as it has whole ratios of representation. Any fraction of the population in excess of a whole ratio shall be a part of only one adjoining house ... district."

"The number of whole ratios of representation for a county shall be determined by dividing the population of the county by the ratio of representation for the house of representatives determined under [§ 2]....

§ 9: Where the population of a county is not less than ninety percent nor more than 110 percent of the house ratio, "reasonable effort shall be made to create a house ... district consisting of the whole county."

§ 10: "The standards prescribed in sections 3, 7, 8, and 9 of this Article shall govern the establishment of house of representatives districts, which shall be created and numbered in the following order to the extent that such order is consistent with the foregoing standards:”

(A): “Each county containing population substantially equal to one [house] ratio ... as provided in [§ 2], but in no event less than ninety-five per cent of the ratio nor more than [105] per cent of the ratio shall be designated a representative district.”

(B): "Each county containing population between ninety and ninety-five per cent of the ratio or between one hundred five and [110] per cent of the ratio may be designated a representative district.”

(C): "Proceeding in succession from the largest to the smallest, each remaining county containing more than one whole ratio of representation shall be divided into house ... districts. Any remaining territory within such county containing a fraction of one whole ratio of representation shall be included in one representative district by combining it with adjoining territory outside the county.”

(D) "The remaining territory of the state shall be combined into representative districts.”

§ 11: "Senate Districts shall be composed of three contiguous house of representatives districts. A county having at least one whole senate ratio of representation shall have as many senate districts wholly within the boundaries of the county as it has whole senate ratios of representation. Any fraction of the population in excess of a whole ratio shall be a part of only one adjoining senate district. Counties having less than one senate ratio of representation, but at least one house of representatives ratio of representation shall be part of only one senate district.”

"The number of whole ratios of representation for a county shall be determined by dividing the population of the county by the ratio of representation in the senate determined under section 2 of this Article.”

10 . We recognize that the Supreme Court cases to date have not addressed the role of codified or constitutionalized districting principles where those principles do not coincide, and perhaps even conflict, with the general criteria identified by the Court. It is possible that the Court would choose to consider only the general criteria (as a federal conception of districting principles), to avoid becoming enmeshed in the specific requirements of the various states. In his dissent in Shaw II, Justice Stevens, disagreeing with the majority’s conclusion that the noncompact appearance of District 12 in North Carolina suggested suspect race-based districting, noted that although the North Carolina Constitution required contiguity, it did not require compactness. 517 U.S. at -, 116 S.Ct. at 1915. Justice Stevens further wrote that "[gjiven that numerous States have written geographical compactness requirements into their state constitutions, North Carolina’s omission on this score is noteworthy. ... It reveals that North Carolina’s creation of a geographically noncompact district does not itself mark a deviation from any prevailing state districting principle.” Id.

(citation omitted). “Indeed, the State's guide to redistricting specifically informed state legislators that compactness was of little legal significance." Id. at n. 12. If Justice Stevens is correct that the state itself did not treat compactness as a traditional districting principle, and the Supreme Court judged a district in that state by its disregard of that "traditional” principle, then the Court may have chosen a generalized, as opposed to state-specific, approach to the threshold inquiry.

On the other hand, in a more recent decision the Court appeared to rely on state-specific criteria in upholding a district court's finding that traditional districting principles had not been subordinated to race. In Lawyer v. Department of Justice, - U.S. -, 117 S.Ct. 2186, 138 L.Ed.2d 669 (1997), the appellant challenged that finding, citing the challenged district’s inclusion of more than one county, its crossing a body of water, its irregular shape, and its noncompactness. The Court rejected the appellant’s arguments, pointing to “unrefuted evidence showing that on each of these points District 21 is no different from what Florida's traditional districting principles could be expected to produce.” Lawyer, - U.S. at -, 117 S.Ct. at 2195.

A generalized approach would have the advantage of not subjecting a state that has clearly prescribed its criteria to a more exacting standard, and a more searching inquiry, than a state that has not done so. The obvious flaw in that approach, however, is that the threshold analysis is designed to identify situations in which states have neglected the criteria they would otherwise consider in pursuit of race-based objectives; if courts measure a state's plan by reference to general criteria, without regard for the state's own criteria (those that it would otherwise consider), the inquiry may fail to serve its very purpose. On the other hand, if the Supreme Court applied state-specific criteria, the principles relevant to the analysis could vary widely from state to state, resulting in different standards for different states; even more significantly, a state might be able to protect itself from Shaw scrutiny by establishing minimal or vague criteria (or perhaps none at all), such that it could never be found to have neglected or subordinated those criteria to race.

For our purposes, this apparently open question is not dispositive. Because the provisions of Ohio Const., art. XI generally coincide with the traditional criteria of compactness, contiguity, and respect for political subdivisions, we need not decide what criteria are relevant where the state principles differ.

11 . The plaintiffs in the state court case are the defendants in this case, the Apportionment Board majority members.

12 . Robert T. Bennett, the chairman of the Ohio Republican Party, did submit a plan to the Board on behalf of the party, and made a statement at a Board hearing that was substantially similar to a letter attached to that plan stating that the plan sometimes departed from the Ohio Constitution’s requirements in favor of Voting Rights Act considerations. See R. 154, Ex. 15, at 27; Defs.’ Trial Ex. 79. We note, however, that the Republican Parly plan submitted by Bennett, and on which he based his remarks, was one of five proposed apportionment plans submitted to the Board, and was rejected by the Board. See R. 154, Ex. 15, at 7-8 (Governor Voinovich, at a Board hearing, stated that seven plans had been submitted and one withdrawn); id. at 26-30 (Bennett introduced the Republican Party plan); R. 147, Ex. A, ¶¶ 13, 14 (listing five submitted plans and their sponsors); R. 147, Ex. B, at 24 (referring to "[t]he Republican plan that was offered and rejected by this Board” and to "the plan that was actually adopted by the Board, referred to as the Tilling plan”). The Republican members of the Board submitted their own plan (which was not the Republican Party plan), drafted by Tilling, which the Board adopted. See R. 154, Ex. 15, at 89-118 (introduction of the majority members’ plan); R. 147, Ex. B., at 24 (noting adoption of the Tilling plan); R. 147, Ex. A, ¶ 14 (same). Comments made by Bennett in reference to a rejected plan, therefore, appear to have no relevance to the motivations behind the plan adopted by the Board and now before this court.

13 . We note that none of the four districts at issue in this case is a majority-minority district; only one of the eight challenged districts, HD 30, is a majorily-minority district, and we have held that the plaintiffs do not have standing to challenge that district. The other challenged districts are "influence districts,” which are defined as "districts in which black voters would not constitute a majority but in which they could, with the help of a predictable number of cross-over votes from white voters, elect their candidates of choice.” Voinovich v. Quilter, 507 U.S. 146, 149-50, 113 S.Ct. 1149, 1153-54, 122 L.Ed.2d 500 (1993). See also Stanley Pierre-Louis, Comment, The Politics of Influence: Recognizing Influence Dilution Claims Under § 2 of the Voting Rights Act, 62 U.ChiX.Rev. 1215 (1995); J. Morgan Kousser, Beyond Gingles: Influenced Districts and the Pragmatic Tradition in Voting Rights Law, 27 U.S.F.X.Rev. 551 (1993).

14 . We note that the Board adopted its Findings and Conclusions in response to this court’s order, in the original litigation of the plaintiffs’ vote dilution claim, to justify its creation of majoriiyminority districts. Quitter v. Voinovich, 794 F.Supp. 695, 701-02 (N.D.Ohio 1992). The Board's (perhaps disproportionate) focus on racial considerations in those findings, therefore, is hardly surprising; nevertheless, the Board detailed its use of racial considerations in drawing certain districts in its plan, and we treat those adopted findings as direct evidence of the use of race.

15 .See, e.g., R. 350, Ex. A, at 8-10, 14, ¶¶ 10-16, 29-32 (Report of James R. Tilling); R. 123, at 145-46 (12/14/91 Tilling Dep.). We do not address whether Tilling’s contention is correct. Although the defendants contend that the Ohio Supreme Court’s decision in Voinovich affirmed the discretionary authority of the Apportionment Board to choose between conflicting coequal provisions, that court has not yet addressed the question whether § 7 is coequal with certain other provisions, particularly § 10. We need not decide this issue to reach our conclusion; in any event, we would abstain from considering this issue of state constitutional interpretation.

16 . Because we hold that strict scrutiny is not triggered, we do not address the issue of whether the defendants had a compelling interest to justify race-based redistricting, or whether the Board’s plan was sufficiently narrowly tailored.

17 . In the previous opinion of this court, we held that the challenged districts failed strict scrutiny because the defendants did not have a "strong basis in evidence” for believing that they risked liability under § 2. See Quilter, 912 F.Supp. at 1027-30. That standard, however, is applicable only to the more demanding "compelling interest" test relevant to strict scrutiny. Here, the more deferential rational basis test requires only that we find a legitimate state interest. See Clark, 486 U.S. at 461, 108 S.Ct. at 1914; Cleburne, 473 U.S. at 440, 105 S.Ct. at 3254.