# White v. State of Ala.

> District Court, M.D. Alabama · October 6, 1994 · 867 F. Supp. 1519

URL: https://www.frixlaw.com/law-library/cases/1456333

## Case

- **Full name:** Hoover WHITE, Et Al., Plaintiffs, Ralph E. Bradford, Etc., Mark G. Montiel, Et Al., Plaintiffs-Intervenors, v. the STATE OF ALABAMA; And James Bennett in His Official Capacity as Secretary of State for the State of Alabama, Defendants, Christopher Boehm, Defendant-Intervenor, United States of America, Amicus Curiae
- **Court:** District Court, M.D. Alabama
- **Decided:** October 6, 1994
- **Citations:** 867 F. Supp. 1519; 1994 U.S. Dist. LEXIS 14771; 1994 WL 570796
- **Precedential status:** Published
- **Opinion:** Opinion by Thompson
- **Judges:** Myron H. Thompson
- **Cited by:** 18 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/1456333

## How later opinions describe it (automated extraction)

- recognizing the compliance with the Voting Rights Act as a compelling state interest

## Opinion text

MEMORANDUM OPINION AND ORDER
MYRON H. THOMPSON, Chief Judge.
Irl this lawsuit, three African-American plaintiffs — Hoover White, John A. Dillard, and Glenn Moody — claim that the current at-large system of electing Alabama appellate judges violates § 2 and § 5 of the Voting Rights Act of 1965, as amended, 42 U.S.C.A. §§ 1973 , 1973c (West 1994).
1
They name as defendants the State of Alabama and its Secretary of State. The plaintiffs invoke the jurisdiction of the court pursuant to 28 U.S.C.A. §§ 1331 ,1343(3) (West 1993) and 42 U.S.C.A. § 1971 (d) (West 1994). The plaintiffs represent all African-American electors and resident citizens in Alabama.
In settlement of this litigation, the plaintiffs and the defendants have submitted to the court a proposed final judgment for approval under Rule 23(e) of the Federal Rules of Civil Procedure.
2
For the reasons that follow, the court concludes that it should approve and adopt the proposed judgment.
I. A BRIEF OVERVIEW
The proposed final judgment provides for temporary relief that promises to afford to the black citizens of this state their right to an equal opportunity to participate in the political process and elect candidates of their choice to appellate judgeships. At the same time, the proposed judgment will serve two important and substantial state interests: first, it will preserve the state’s at-large system of electing appellate judges; and, second, it will allow the 1994 elections and future elections for all existing appellate judge-ships to proceed even though some of the judgeships were created without the required federal approval.
In broad terminology, the proposed judgment achieves these ends by modifying the already existing and frequently used procedure under which persons, and almost exclusively white persons, have been appointed by
*1526
the governor to appellate judgeships and thereby have enjoyed the privilege and advantage of incumbency before having to stand for election. The proposed judgment extends to minority-preferred candidates— who are the candidates of choice for blacks but need not themselves be black — a special and expanded opportunity to enjoy this privilege and advantage before having to stand for election. Thus, under the proposed final judgment, the governor — based on recommendations from a special nominating committee, composed in a manner to attempt to reflect the interests of most African-American Alabamians — would appoint minority-preferred candidates to a limited number of appellate judgeships. These appointed judges would then, like all other judges, have to stand for the approval of the electorate at large. In order to make this expanded opportunity of incumbency realistically available to minority-preferred candidates within a reasonable period of time, the proposed judgment provides for an increase in the size of the courts of criminal and civil appeals. It also provides for a possible temporary increase in the size of the state supreme court.
The proposed final judgment is not without opposition. On the one side, there are those who claim, among other things, that modifying the at-large system is inadequate. Three plaintiff-intervenors, on behalf of all Alabama Republicans, and one African-American in-tervenor claim that the only appropriate relief would be to transform the state’s scheme for electing appellate judges from an at-large system to single-member districts, in which each appellate judge or justice would represent only a geographic portion of the state and in which district lines would then be drawn according to the race of voters. According to these objectors, this single-member scheme would provide African-Americans a greater assurance of being able to elect candidates of their choice. On the other side, there are those who claim that the court should not modify the at-large system in any manner. Yet all the objectors must recognize that without the temporary relief now before the court, the 1994 elections would probably not be able to proceed for some of the appellate positions and, as a result, these positions would be removed from the electorate with the current incumbents holding over.
For the reasons given in this opinion, the court concludes, first, that the evidence supports a settlement of the plaintiffs’ claims and, second, that the court should proceed cautiously at this time and adopt the relief suggested by the plaintiffs and the defendants. Their relief holds out a substantial promise of success and yet is minimally race-conscious and governmentally intrusive. This relief, like the relief for which the three Republican intervenors and the one African-American intervenor want to hold out, would afford a substantial promise to open up fully the state’s political process to its African-American citizens; however, this relief, unlike the relief the intervenors want, would be only temporary, would preserve the state’s at-large system, and would with certainty allow the 1994 elections to go forward for all appellate judgeships. The proposed settlement would also make only limited and necessary changes to state law and would not violate federal statutory or constitutional law.
It may be, as feared by some of the objectors, that the proposed judgment will not open up the political process. But, as is shown below, the proposed judgment — which has the express support of many prominent black political officials in the state and the implicit support of the overwhelming majority of black citizens in the state — does not foreclose the opportunity for the court to revisit, after a reasonable period of time, the question of the adequacy of relief.
Admittedly, some, but not all, judges appointed under the proposed judgment would enjoy incumbency for six years before having to go before the voters to retain their offices. However, this period of incumbency, while extended, is not greatly out of line with state practice, when that practice is viewed over the entire period in which blacks have allegedly been denied an equal opportunity to elect candidates of their choice. For example, within the last 30 years, one appellate judge served two successive appointive terms totalling almost four years and three other appellate judges served appointive terms of approximately two and a half years. Indeed,
*1527
one of the objectors to the proposed settlement — a white Republican, who was first appointed to the trial bench and then appointed to the appellate bench — is now eligible for retirement benefits for his years on the appellate bench without ever having won election to a judicial seat. Moreover, as will be shown below, the evidence reflects that current racial barriers “ “will not wither away of their own accord,’”
United States v. Paradise,
480 U.S. 149, 163 , 107 S.Ct. 1053, 1062 , 94 L.Ed.2d 203 (1987) (plurality opinion) (quoting
Paradise v. Prescott,
585 F.Supp. 72, 75 (M.D.Ala.1983)), and that, if these barriers are to be not only overcome but effectively eliminated over time, this extended period of incumbency is necessary, albeit only as part of a temporary measure.
It is also significant that, if the court were to reject the settlement and, as appears reasonably likely, elections could not proceed for a number of federally-unapproved appellate positions, the judges who occupy those positions could enjoy uneleeted incumbency for up to six years. For example, in the neighboring State of Georgia, it has been almost six years since many judgeships, for which the required federal approval had not been given, have been up for election.
Brooks v. State Bd. of Elections,
848 F.Supp. 1548, 1551 (S.D.Ga.1994). The Georgia judiciary was recently described as “an overworked judiciary frozen in its current form.”
Id.
at 1573 . Therefore, with or without the proposed settlement, the State of Alabama will probably face judges with extended unelected incumbency. Indeed, it appears that one of the Alabama judges who might enjoy this extended incumbency in the absence of the settlement received his position by appointment. In order to avoid the situation in Georgia and in order to open up further the political process to Alabama’s black citizens, the court today affirms the State of Alabama’s choices as embodied in the proposed settlement.
The court therefore finds that the relief is fair, adequate, and reasonable, as well as legal and good public policy.
II. BACKGROUND
In the last 125 years, only two African-Americans have served as appellate judges in Alabama.
3
As of the 1990 census, however, blacks comprised 25.26% of the population of Alabama, 22.73% of the voting age population, and 20.29% of the total registered voters.
4
The stark disparity between the small number of black appellate judges and the large black population is the essence of this lawsuit.
Alabama’s history of racial discrimination generally, and in the area of voting in particular, is well-documented in decisions of this court and others. African-Americans have been discriminated against in almost every area of Alabama public life.
Dillard v. Crenshaw County,
640 F.Supp. 1347, 1359-60 (M.D.Ala.1986) (citing numerous cases finding racial discrimination in Alabama). The state has had an “unrelenting historical agenda, spanning from the late 1800’s to the 1980’s, to keep its black citizens economically, socially, and politically downtrodden, from the cradle to the grave.”
Id.
at 1357 . No area has been more problematic for African-Americans than achieving voting rights and access to the political process.
See id.
at 1356-59 (describing state’s history of voting discrimination).
This case presents the first voting rights challenge to Alabama’s appellate court system. Alabama’s judicial system contains three appellate courts: a supreme court, a court of criminal appeals, and a court of civil appeals. Ala. Const, art. VI, § 6.01(a). The Alabama Constitution further states that the number of judges on each of the three appellate courts is determined by the legislature. Ala. Const, art. VI, §§ 6.02(a), 6.03(a)-(b). Currently, there are nine justices on the supreme court. Ala.Code § 12-2-1 (1986). Each of the courts of appeals is composed of five judges. Ala.Code § 12-3-1 (Supp.1994). Appellate judges are elected statewide for a term of six years. Ala. Const, art. VI,
*1528
§§ 6.13, 6.15. Vacancies are filled by gubernatorial appointment. Ala. Const, art. VI, § 6.14.
Of the seventeen appellate court judges currently sitting, only one, Associate Justice Ralph Cook, is black.
5
He was appointed to replace the only prior black justice, Associate Justice Oscar Adams, who was also appointed.
6
No other black has been an appellate judge since 1865.
7
A.
Procedural History
The plaintiffs brought this lawsuit on January 27, 1994. Their complaint, as amended,
8
asserts two claims under the Voting Rights Act.
9
The first claim is that four acts of the state legislature regarding the state appellate courts violate § 5 of the Voting Rights Act, which provides that a covered jurisdiction shall not “enact or seek to administer any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting different from that in force or effect on November 1,1964” without obtaining'preclearance from the federal government. 42 U.S.C.A. § 1973c (West 1994). In 1964, the appellate court system in Alabama consisted of a three-judge court of appeals and a seven-judge supreme court. All of these judges were elected statewide. The § 5 claim centers on four post-1964 acts of the Alabama legislature concerning appellate judges. Those four acts adopted, among other provisions, the following changes in state law: (1) the supreme court was expanded to nine judges, 1969 AlaActs 602; (2) a three-judge court of criminal appeals and a three-judge court of civil appeals replaced the former court of appeals, 1969 AlaActs 987; (3) the number of judges on the court of criminal appeals was increased to five, 1971 Ala.Acts 3d Spec.Sess. 75; and (4) the court of civil appeals was expanded to five judges, 1993 Ala.Acts 346. The plaintiffs sought a declaratory judgment that the four acts are void because they were not precleared. They also sought injunctive relief against the enforcement of the acts.
The second claim is that the current system of statewide election of Alabama appellate judges violates § 2 of the Voting Rights Act, which forbids the “denial or abridgement of the right of any citizen of the United States to vote on account of race or color.” 42 U.S.C.A. § 1973 (West 1994). The plaintiffs allege that the current statewide method of electing appellate court judges dilutes black voting strength, thereby denying African-Americans an equal opportunity to participate in the political process and elect candidates of their choice.
On April 15, 1994, in settlement of this litigation, the plaintiffs and the defendants submitted to the court a proposed final judgment. The day before, on April 14, the United States Attorney General had interposed an objection under § 5 to the four legislative acts in question.
10
The Attorney General further stated, however, that if this court approved and adopted the proposed judgment, she “would be prepared to grant the requisite preclearance.”
11
In other words, the four acts would be unobjectionable if the additional changes contemplated by the proposed judgment were approved and adopted.
The Attorney General further noted that a three-judge court had been convened pursuant to 42 U.S.C.A. § 1973c (West 1994) and 28 U.S.C.A. § 2284 (West 1978 & Supp.1994) to hear the § 5 claim and thus was “poised to address the question whether injunctive relief should be granted based on the unpre-cleared status of appellate court judgeships
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that are up for election this year.”
12
She therefore added that, because the “proposed consent judgment contemplates that elections will go forward this year under the at-large election system” and because “the Attorney General has precleared the changes occasioned by the proposed judgment and is prepared to preclear the legislative changes if the court grants its approval to the judgment,” she “believe[d] that it would be appropriate to defer granting injunctive relief and thus allow the primary election for the un-precleared positions to be conducted.”
13
The Attorney General advised, however, that, “Should the court not approve the judgment before this year’s general election [in November 1994], the issue of granting injunctive relief should be revisited.”
14
On the basis of the Attorney General’s conditional preclearance of the proposed judgment, the three-judge court issued an order on April 15, 1994, allowing primary elections for unprecleared state appellate judicial positions to go forward. The court agreed with the Attorney General that absent an “extreme circumstance,” a district court must enjoin elections that would be conducted in violation of § 5’s prohibition against implementation of unprecleared changes.
Clark v. Roemer,
500 U.S. 646, 654 , 111 S.Ct. 2096, 2102 , 114 L.Ed.2d 691 (1991). Such a circumstance was presented because “the Attorney General has pre-cleared the changes that would be effected by the proposed consent judgment and is prepared to preclear the legislative changes if the proposed judgment receives judicial approval” and the fact that “the proposed judgment contemplates that elections will go forward this year under the at-large election system.”
15
As suggested by the Attorney General, however, the three-judge court cautioned that “if the proposed judgment does not receive judicial approval before this year’s general election, the court should revisit the issue of whether injunctive relief would be appropriate.”
16
Subsequently, in an order entered on May 11,1994, the three-judge court stayed proceedings before it, severed the § 2 claim from the § 5 claim, and referred the proposed settlement to the single-judge court.
White v. State of Alabama,
851 F.Supp. 427, 430 (M.D.Ala.1994) (three-judge court).
17
Over the course of the proceedings a number of parties, in addition to the plaintiffs and the defendants, have become involved. The three-judge court granted the Department of Justice’s motion for leave to participate as
amicus curiae.
18
The three-judge court also granted a motion to intervene as a plaintiff by Ralph E. Bradford, an African-American seeking to remedy the alleged § 2 violation by replacing the at-large election system with single-member districts.
19
The single-judge court allowed the following persons, who are Republicans and not African-American, to intervene as plaintiffs in support of single-member districts: Mark Montiel, a judge on the court of criminal appeals and Republican candidate for supreme court in 1994; Johnny Curry, a state legislator and chairman of the Jefferson County Republican Executive Committee; and Jack Williams, executive director of the House Republican Caucus.
20
The court certified a class consisting of all Alabama electors who are Republican and a subclass consisting of all Alabama electors who are Republican and are not African-American, both classes to be repre
*1530
sented by Judge Montiel, Curry, and Williams.
21
The single-judge court also ordered that Christopher Boehm, who is not African-American, be allowed to intervene as a defendant supporting the current system of at-large elections.
22
The court certified a class consisting of all citizens who are qualified electors of the State of Alabama and are not African-American or black, which would be represented by Boehm.
23
Meanwhile, concurrently with filing the proposed final judgment on April 15, 1994, the plaintiffs and the defendants requested approval of that agreement. The court subsequently entered an order preliminarily and conditionally approving the proposed settlement, subject to objections at a fairness hearing to be held on July 29, 1994.
24
The court also approved the proposed notice to the public, which the state was required to have published in major Alabama newspapers.
25
Twenty-nine people filed written objections and three of those objectors spoke at the July 29 fairness hearing. One of the written objections came from a named inter-venor. In addition to the written and oral objections, all of the intervenors object to at least portions of the settlement for reasons that overlap with those of the objectors. The objections break down into ten categories. First, several people supported single-member districts as a remedy. Second, some people objected to using an appointment procedure rather than electing judges. Third, a number of objectors decried what they saw as an attempt to place black judges on the bench through affirmative action procedures. Fourth, some people believed the settlement violates Alabama law and objected that the state attorney general does not have the power to make such a settlement. Fifth, some people felt the settlement is collusive or politically motivated. Sixth, four prisoners objected, stating that any settlement should include restoration of direct appeal rights, a new appeal, and the right to file a motion for a new trial. Seventh, two people had procedural objections to the court’s jurisdiction. Eighth, one person objected to the possibility of the chief justice appointing associate justices. Ninth, one person said the judgment lasted too long. And tenth, one person said the judgment should last longer.
The court also received a joint evidentiary record for the fairness hearing that was prepared by all of the parties, including the intervenors, and that was filed with the court in parts on July 5 and September 13, 14, 16, and 21, 1994. After the hearing, the court certified a plaintiff class consisting of all black resident citizens and electors of the State of Alabama, with the class represented by White, Dillard, and Moody.
26
On September 2, 1994, the court held a subsequent hearing with expert witnesses for the purpose of obtaining clarification on a number of issues. At the court’s request, the parties submitted additional evidence on some of these issues.
B.
Provisions of the Settlement
In general terms, the proposed judgment would implement a remedy that remains within the framework of statewide elections historically used for selecting appellate judges in Alabama, while allowing minority-preferred candidates, who can be either black or non-black, to run for election with the benefit of incumbent status. It would allow the 1994 elections to go forward under existing state law, even though portions of that law have not been precleared. The proposed judgment would terminate in the year 2019, though the court could terminate it earlier if the objectives have been achieved. The judgment could also be extended if necessary. If, in the year 2003, the objectives of the proposed settlement are not being met, the parties must first attempt to agree on a further remedy; failing that, the plaintiffs may petition the court for additional relief. The specifics of the proposed judgment are different for the courts of appeals and the supreme court.
*1531
1.
Courts of Appeals
The proposed settlement would make the following changes to the current method of selecting judges for the courts of appeals: Prior to 1997, the state will add two judges to each of the court of criminal appeals and the court of civil appeals, for a total of seven judges on each court. The four new judges, who will be seated in January 1997, will be chosen through procedures set forth in the proposed settlement. These procedures provide for the creation of a nominating commission composed of one member selected by the Alabama Lawyers Association; one member selected by the Alabama State Bar Association; two members selected from the plaintiff class by class counsel; and one member selected by majority vote of the other four members or, in the event of deadlock, by the Alabama Black Legislative Caucus. The commission will select three attorney applicants to nominate for each judgeship. The governor will then choose an appointee for each judgeship from the three nominees for that judgeship. Each of the four judges will be appointed for a term of six years.
After the new appointments, if there is a vacancy on either the court of criminal appeals or the court of civil appeals and there are fewer than two members of such court who are black or who were appointed through the nominating process, then the vacancy will be filled by the same method of nomination. Rather than serve a full six year term, however, such appointees will be subject to election after serving one year, in accordance with the constitutional provision for filling vacancies. Ala. Const, art. VI, § 6.14.
2.
Supreme Court
The nominating commission will also be used to fill positions on the supreme court, but in a different way. Starting in 1995, if there are fewer than two associate justices of the supreme court who are black or who were appointed through the nominating process, then any vacancies will be filled through the same nominating process used for vacancies on the courts of appeals. Appointees to vacant positions will be subject to election after one year.
For each of the elections in 1996,1998, and 2000, if there are fewer than two associate justices of the supreme court who are black or who were appointed through the nominating process, then if any sitting associate justice does not qualify for reelection, that open seat will be filled through the nominating process for a term of six’ years. In each of 1998 and 2000, if there are fewer than two associate justices who are black or who were appointed through the nominating process and no sitting associate justice fails to qualify for reelection, then the state will create an additional seat on the supreme court, which will be filled through the nominating process for a term of six years. If there are more than eight associate justices on the supreme court, any seat vacated by an associate justice who is not black or appointed through the nominating process will not be filled.
8.
Evolution of the Settlement
The proposed final judgment currently before the court is not the first settlement to be submitted by the plaintiffs and the defendants. Their first proposal was submitted on February 24, 1994. The current proposal and the original proposal differ in many important respects. First, the original proposal provided that only blacks would be eligible for appointment. The current agreement removes all racial prerequisites to appointment. Second, the original proposed judgment provided that appointments would be triggered if two African-Americans were not sitting on each appellate court. The current proposal provides for appointments if there are fewer than two judges or justices who are black or who were appointed through the nominating process. Because there will be two initial appointments to both of the courts of appeals and because these appointments need not be black, future appointments to vacancies on these courts will not depend wholly on the race. The trigger for initial appointments to the supreme court will remain dependent on race because there will be no initial appointments like the courts of appeals. Third, if the number of associate justices is increased pursuant to the provisions of the judgment,
*1532
the original proposal abolished a seat if it was vacated by a white justice. The current proposal abolishes the seat if the vacating justice is white or if the seat was not filled by the judicial nominating commission. Fourth, the original proposal provided for discussions about further remedial measures if there are fewer than two African-Americans on any of the appellate courts for more than a year after 2003. The current proposal triggers this provision only if there are fewer than two judges or justices who are black or who were appointed through the nominating process. Fifth, the original settlement provided that the first white supreme court justice who vacated office would be replaced by a black, irrespective of the number of black justices then serving on the court. This provision has been eliminated in the current proposal. Sixth, the original proposal was of unlimited duration. The current proposal is limited to 24 years unless extended by the court. It also explicitly allows the state to petition for earlier termination of the judgment.
Subsequently, the parties made two further changes. The first change was in response to concerns raised by the Boehm defendant class on behalf of all white electors of the state. Counsel for the Boehm class wrote that, “After evaluating the current state of the record before this Court and evaluating the prospects of litigation if the proposed consent judgment is not approved, the ‘Boehm Class’, in large measure,
supports
the proposed consent judgment.”
27
Counsel added, however, “that this Court can and should use its equitable power to make minor adjustments to the proposed consent judgment to ensure current and future constitutional protection for the ‘Boehm Class’.”
28
Counsel explained that the nominating commission “would contain a minimum of three and, possibly, a maximum of five African-American members,”
29
with the result that there is the “potential of having
no
non-African-American and the probability of having only one” on the commission.
30
Similarly, the Alabama State Bar passed a resolution taking issue with the proposed settlement only with regard to the nominating commission in two respects: first, that the members of the commission should be chosen by and not necessarily have to come from certain groups; and, second, that the members should be chosen by predominantly black groups other than Alabama Black Legislative Caucus and other than counsel for the named plaintiffs.
31
The court agreed with some of the concerns raised by the Boehm class and the State Bar, and, therefore, at the urging of the court, the plaintiffs and the defendants modified the requirements for the composition of the nominating commission. There will still be two members selected from the plaintiff class by class counsel. The other three members, however, will no longer be selected
by and from,
the predominantly black Alabama Lawyers Association;
by and from
the Alabama State Bar Association; and by majority vote of the other four members or, in the event of deadlock,
by and from
the Black Legislative Caucus. Each of the three members will be selected only
by
these organizations, further eliminating race-based measures because the members of the commission will not have to be members of the Alabama Lawyers Association and, in the event of deadlock, the Black Legislative Caucus. Each of these three members may therefore be of any race.
32
The second modification suggested by the court was made to avoid unnecessary
*1533
changes in state law. The plaintiffs and the state agreed to eliminate a provision that allowed the chief justice to make appointments should the governor fail to do so.
The final version of the proposed judgment was filed on September 15 and precleared on September 20, 1994.
33
It is, therefore, the result of an extended process in which all concerned — the plaintiffs, the defendants, the intervenors, and other interested persons and groups — were invited to work together to find a remedy to racial discrimination that is dominantly race neutral and fits as much as possible into the historical framework for statewide elections, and that, to the extent it is race-conscious and governmentally intrusive, is so in only a temporary and reasonably narrow way.
III. STANDARDS FOR REVIEW
The court has previously explained the standards for deciding whether to approve a settlement in a voting rights class-action case.
Dillard v. Crenshaw County,
748 F.Supp. 819, 823 (M.D.Ala.1990). Judicial policy favors voluntary settlement as the means of resolving class-action eases.
Cotton v. Hinton,
559 F.2d 1326, 1331 (5th Cir.1977).
34
The court has applied this policy to voting rights class actions.
See, e.g., Crenshaw County,
748 F.Supp. at 823 ;
Dillard v. Town of Louisville,
730 F.Supp. 1546, 1548 (M.D.Ala.1990);
Harris v. Graddick,
615 F.Supp. 239, 241-42 (M.D.Ala.1985). It is also established, however, that the settlement process is subject to abuse and, therefore, courts must independently evaluate whether a settlement is fair, adequate, and reasonable.
Piambino v. Bailey,
757 F.2d 1112, 1139 (11th Cir.1985),
cert. denied,
476 U.S. 1169 , 106 S.Ct. 2889 , 90 L.Ed.2d 976 (1986);
Pettway v. American Cast Iron Pipe Co.,
576 F.2d 1157, 1169 (5th Cir.1978),
cert. denied,
439 U.S. 1115 , 99 S.Ct. 1020 , 59 L.Ed.2d 74 (1979). For instance, the interests of the class and its lawyer may diverge, or some members of the class may be “sold out” by other members.
Pettway,
576 F.2d at 1169 . As part of determining fairness, adequacy, and reasonableness, the court must ensure that the settlement is not collusive.
Piambino,
757 F.2d at 1139 . Finally, the court has the duty of ensuring that the settlement is not illegal or against public policy.
United States v. City of Alexandria,
614 F.2d 1358, 1362 (5th Cir.1980);
Harris,
615 F.Supp. at 241-42 .
IV. WHETHER THE SETTLEMENT IS FAIR, ADEQUATE, AND REASONABLE
In deciding whether a settlement is fair, adequate, and reasonable, a court may examine the following factors: (1) the views of the class members; (2) the views of class counsel; (3) the substance and amount of opposition to the settlement; (4) the possible existence of collusion behind the settlement; (5) the stage of the proceedings; (6) the likelihood of success at trial; (7) the complexity, expense, and likely duration of the lawsuit; and (8) the range of possible recovery.
See Leverso v. Southtrust Bank of Alabama, Nat. Assoc.,
18 F.3d 1527 , 1530 n. 6 (11th Cir.1994);
Bennett v. Behring Corp.,
737 F.2d 982, 986 (11th Cir.1984);
Crenshaw County,
748 F.Supp. at 823 .
A.
Views of Class Members
The first place a court should look to determine whether a settlement is fair, adequate, and reasonable is to the views of the class.
Shuford v. Alabama State Bd. of Educ.,
846 F.Supp. 1511, 1517 (M.D.Ala.1994). As a preliminary matter, the court must ensure that class members have been given notice of the settlement, as required by Rule 23(e) of the Federal Rules of Civil Procedure. In this case, a court-approved notice was published twice weekly for three weeks in major Alabama newspapers. The notice summarized the proposed settlement and advised interested persons about how to object in writing and at the fairness hearing. The court held a fairness hearing to obtain
*1534
the views of both class and non-class members. The court finds that the notice and fairness hearing were adequate to inform the plaintiff class and other interested parties about the proposed settlement and to seek and ascertain their opinions.
35
Based on the lack of objections, the court concludes that the plaintiff class overwhelmingly supports the proposed settlement.
Cf. Reynolds v. King,
790 F.Supp. 1101, 1109 (M.D.Ala.1990) (majority’s silence may be, but is not always, indicative of class-wide support). Only two objections came from people who identified themselves as African-American. One of these objectors argued for a remedy of single-member districts, but supported the nominating commission in the alternative. The second black objector is plaintiff-intervenor Bradford, who opposes the settlement on a number of grounds, including that the settlement is illegal and that the remedy should be single-member districts.
The court also received evidence from the plaintiff class in regard to the proposed settlement. A number of prominent African-Americans support the proposed settlement. Among them are Oscar Adams, the first black associate justice on the Alabama Supreme Court and the only black person ever elected statewide to a constitutional office in Alabama, albeit after a period of incumbency;
36
Fred Gray, a prominent black attorney and former state representative;
37
Richard Arrington, Jr., the African-American mayor of Birmingham;
38
and Joe L. Reed, chair of the Alabama Democratic Conference, a black political organization, and a veteran of Alabama politics.
39
These four men cited a number of reasons for supporting the proposed settlement. Mayor Arrington indicated that the nominating commission is a good way of identifying minority-preferred candidates who can be elected statewide after appointment.
40
Gray and Reed suggested that black attorneys are reluctant to run for appellate judgeships without the advantage of incumbency.
41
Justice Adams emphasized the importance of incumbency in allowing him to win statewide races
42
He stated that, “Incumbency is the best method ... to overcome the reluctance on the part of many white voters to vote for a black candidate.”
43
Adams believes that the best “way of remedying any underrepresentation of blacks in appellate judgeship positions would be through an appointment process comparable to that contained in the proposed consent judgment.”
44
He further added that “the settlement in this case does the best possible job of preserving the interests of the State in the judicial system.”
45
Particularly because there have been only two objections by members of the plaintiff class, the court does not believe that the proposed final judgment is unfair to any segment of the black population
46
No money damages are at stake and all black voters are treated equally. Because there is no conflict of interest within the class which would elevate in importance the views of a small segment of the class, majority opinion is compelling.
Pettway,
576 F.2d at 1217 .
*1535
Based on the paucity of objections and the strong support for the proposed judgment among African-American leaders, the court finds that the plaintiff-class favorably views the proposed settlement.
B.
Views of Class Counsel
In considering the fairness, adequacy, and reasonableness of a proposed settlement, a court should also consider the views of counsel for the class.
Pettway,
576 F.2d at 1215 . Class counsel for the plaintiffs have argued that the proposed settlement is fair, adequate, and reasonable. These attorneys are experienced civil rights and voting rights lawyers and the court respects their views.
C.
Substance and Amount of Opposition to the Settlement
A number of objections have been raised to the proposed settlement. The bulk of the objections relate to the legality of the proposed settlement and are dealt with in a later section. The court will, therefore, limit this section to the objections relevant to fairness, adequacy, and reasonableness.
One objection is that the proposed remedy is not the most appropriate one. Most people holding this view propose single-member districting as a solution.
47
The court is persuaded, however, that the proposed remedy is at least as good for African-Americans as any alternative remedy.
48
According to Mayor Arrington and Reed, the proposed settlement is superior to single-member districts for appellate courts because at-large seats allow blacks to have a significant influence on all appellate judges, rather than have their dominance limited to a small number of districts with little presence in the majority of the districts.
49
Gray also supports the proposed settlement rather than a single-member districting scheme.
50
He reasons that the proposed settlement would allow African-Americans
“to have a voice in the initial appointment of at least two persons of choice on each appellate court be they Black or white. At the same time the proposed judgment retains the rights of Blacks to equally share in the election of all of the other members of the court.”
51
This evidence mirrors a debate among courts and scholars over the best remedy for voting discrimination. In response to the predominance of single-member districts as a voting rights remedy, some courts and scholars have argued that districting is not the best method of ensuring minority interests are taken into account.
See, e.g., League of United Latin American Citizens v. Clements,
999 F.2d 831 , 872-73 (5th Cir.1993) (en banc),
cert. denied,
— U.S. -, 114 S.Ct. 878 , 127 L.Ed.2d 74 (1994); Lani Guinier,
No Two Seats: The Elusive Quest for Political Equality,
77 Ya.L.Rev. 1413, 1447-57 (1991). As the Supreme Court summed up the dilemma, the creation of majority-minority districts “does not invariably minimize or maximize minority voting strength.”
Voinovich v. Quitter,
— U.S. -, -, 113 S.Ct. 1149, 1156 , 122 L.Ed.2d 500 (1993). “Instead,” the Court continued, “it can have either effect or neither.”
Id.
“On the one hand, creating majority-black districts necessarily leaves fewer black voters and therefore diminishes black-voter influence in predominantly white districts,”
id.,
while, “On the other hand, the creation of majority-black districts can enhance the influence of black voters” by ensuring they can elect candidates of their choice.
Id.
One important question is whether minority voters are better off when they have
“influence
over a greater number of seats, or
control
over a lesser number of seats.”
Holder v. Hall,
— U.S. -, -, 114 S.Ct. 2581, 2595 , 129 L.Ed.2d 687 (1994) (Thomas, J., dissenting).
But see
Guinier,
supra,
at 1457-58 (rejecting both alternatives).
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The court need not resolve this dilemma because the parties have expressed their preferences in the proposed settlement. The court need only observe that single-member districts are not necessarily the best solution in all cases. It is true that minorities have often sought single-member districts as a voting rights remedy. Nevertheless, the court finds it entirely reasonable that in this case, involving a statewide appellate judicial system rather than a legislative body, single-member districts are not in the best interests of blacks where, as it appears under the proposed final judgment, there exists an alternative scheme that in substantial measure achieves the goals of districting without sacrificing minority influence in the state as a whole. The proposed settlement might not be optimal for some groups of people, but it appears to be a fair way of remedying past discrimination against African-Americans. Further, the appointment remedy avoids “marginalizing” those black and white voters who would end up a minority in race-based districts.
Another objection is that it is unfair to use an appointment procedure rather than electing judges.
52
Admittedly, under the proposed judgment four to six appellate judgeships will be appointed.
53
However, the settlement partially disperses the effect of this procedure on candidates and on the voters at large by adding four judges to the courts of appeals. Therefore, either with or without the settlement, candidates will still be able to run for and voters will still be able to vote for the same number of positions on those two courts, even though with the settlement the absolute right to vote for and run for every position may be hampered. Additionally, because the need for any appointments to open or created seats on the supreme court is only conditional, it is possible that all supreme court seats can be filled without impinging on the right to election. Further, each Alabama citizen will still be electing more judges than if single-member districts were imposed. Finally and most importantly, each of the appointed positions will ultimately come up for election. Citizens will have the last word on judges through the ballot.
54
To be sure, some appointed judges would enjoy incumbency for six years before having to stand for election. This period of incumbency is not greatly out of line with state practice, when that practice is viewed over the entire period in which blacks have allegedly been denied an equal opportunity to elect candidates of their choice. The evidence reflects that within the last 30 years, one appellate judge served two successive appointive terms totalling almost four years
55
and three other appellate judges served appointive terms of approximately two and a half years.
56
Indeed, one objector to the proposed settlement — Judge Montiel, who was first appointed to the trial bench and then appointed to the appellate bench— is now eligible for retirement benefits for his years on the appellate bench without ever having won election to a judicial seat.
57
Moreover, as discussed later, if the current racial barriers to black participation in the election of appellate judged are to be not only overcome but effectively eliminated over time, this extended period of incumbency is necessary.
It is also significant that, with or without the proposed settlement, the State of Alabama will probably face judges with extended unelected incumbency. That is, if the court were to reject the settlement and, as appears reasonably likely, elections could not proceed for a number of unprecleared appel
*1537
late positions, the judges who occupy those positions could enjoy uneleeted incumbency for up to six years. In the neighboring State of Georgia, it has been almost six years since many unprecleared judgeships have been up for election.
Brooks v. State Bd. of Elections,
848 F.Supp. 1548, 1551 (S.D.Ga.1994). The Georgia judiciary was recently described as “an overworked judiciary frozen in its current form.”.
Id.
at 1573 . The effect on Alabama’s appellate system could be comparable. In the 1994 election alone, the election for the supreme court seat held by Justice Hugh Maddox and arguably for the seats held by Justices Ralph Cook and Mark Kennedy would be subject to stay; the election for the court of criminal appeals seat held by Judge Mark Montiel
58
and arguably for the seat held by Judge Bill Bowen would be subject to stay; and the election for the court of civil appeals seat held by Chief Judge William Robertson and the two seats added in 1993 would be subject to stay. Future elections for at least one supreme court seat, one court of criminal appeals seat and two court of civil appeals seats would also be subject to stay. This potential disruption absent the settlement cannot be ignored.
Some people have expressed concern about the length of the proposed settlement. The court finds that the 24-year time period is reasonable. The proposed judgment can be extended or shortened by the court if circumstances warrant. Moreover, as is explained later in this memorandum opinion, 24 years are needed to effect a change in the composition of the court.
59
For the judgment to be fully successful, changes must take place in voting behavior. Further, of the 26 appointees to appellate courts since 1968, only two have been black.
60
Twenty-four years is therefore a reasonable period of time to allow for the political process to open up.
Finally, four prisoners objected, maintaining that, because legislative acts concerning the court of criminal appeals had not been precleared, the affirmance of their convictions was invalid. They argued that any settlement should include restoration of direct appeal rights, a new appeal, and the right to file a motion for a new trial. This argument is unpersuasive. Action taken by courts does not become retroactively .invalid because the courts have not been precleared. “Granting such a remedy would result in the reversal of years of convictions, the overturning of myriad judgments; in short, it would create genuine chaos.”
Brooks v. State Bd. of Elections,
775 F.Supp. 1470, 1482 (S.D.Ga.1989) (three-judge court),
aff'd mem.,
498 U.S. 916 , 111 S.Ct. 288 , 112 L.Ed.2d 243 (1990).
D.
Existence of Collusion
Objections have been raised that the settlement was a product of collusion between counsel for the plaintiffs and the defendants. It should be noted that the charge is not the typical claim of collusion in a class case: that the class counsel or the named plaintiffs benefit from the settlement at the expense of the class or some members of the class.
See, e.g., Holmes v. Continental Can Co.,
706 F.2d 1144, 1147-48 (11th Cir.1983);
Reynolds,
790 F.Supp. at 1105-08 . Rather, the charge of collusion seems to be based on the presumption that, because the settlement was reached quickly, the parties did not conduct settlement talks as adversaries. There is no evidence, however, that the parties engaged in illegal negotiations to reach the proposed settlement. To the contrary, the parties maintain that they engaged in arms-length negotiations.
61
Although the settlement does not include the typical relief for a § 2 violation—that is, single-member dis-
*1538
tríete — the plaintiffs did not ask for this remedy in their complaint, as amended.
62
Though polities may have been a factor in the proposed judgment, which arguably preserves the strength of Democrats to a greater degree than would single-member districts, there is no suggestion that the state wanted the suit to be brought. Had some state officials encouraged this suit to avoid the legislative process and achieve a result they desired, the court would be concerned.
Cf. United States v. Johnson,
319 U.S. 302 , 63 S.Ct. 1075 , 87 L.Ed. 1413 (1943) (per curiam) (suit collusive if it is not adversary). All the evidence suggests, however, that the state was satisfied with the current at-large system of electing appellate judges and that the proposed settlement is the way the state attorney general sought to preserve that system to the greatest extent possible.
63
Furthermore, this lawsuit did nothing to prevent Republicans from raising claims against at-large elections as currently organized and as proposed under the settlement. In a separate opinion issued today,
White v. State of Alabama,
867 F.Supp. 1571 (M.D.Ala.1994), the court discusses in depth the Republican claims of political discrimination under
Davis v. Bandemer,
478 U.S. 109 , 106 S.Ct. 2797 , 92 L.Ed.2d 85 (1986).
E.
Other Factors
The remaining four factors are interrelated: the stage of the proceedings; the likelihood of success at trial; the complexity, expense, and likely duration of the lawsuit; and the range of possible recovery. This litigation has been ongoing for less than a year. An early settlement has the potential for substantial cost savings. On the other hand, without a full understanding of a ease’s potential, parties can settle for less or more than they should. This possibility does not appear to be a problem in this case. Voting rights actions are frequent enough and counsel in this case are experienced enough, that the potential gains of this action are well known. Future revelations are unlikely. The parties are fully aware that the plaintiffs have a substantial likelihood of prevailing on the merits of the § 2 claim.
64
But this result would probably come at quite a cost in time and effort to the parties, as well as disruption to the state court system. Two current challenges to the at-large election of judges that have not settled have gone on for over half a decade with no end in sight.
Southern Christian Leadership Conference of Alabama v. Evans,
785 F.Supp. 1469 (M.D.Ala.1992),
judgment vacated,
18 F.3d 897 (11th Cir.),
vacated and reh’g en banc granted,
18 F.3d 897 (11th Cir.1994) (Alabama trial judges) (filed 1988 and still ongoing);
Brooks v. State Bd. of Elections,
848 F.Supp. 1548 (S.D.Ga.1994) (Georgia judicial system) (filed 1988 and still ongoing). In contrast, the proposed settlement allows the 1994 election and future elections to continue on schedule. Any relief the plaintiffs eventually received through trial would likely come after a long struggle and would probably not be significantly better than that afforded by the proposed settlement.
In light of the above considerations, the court has independently evaluated the fairness, adequacy, and reasonableness of the proposed settlement. “A settlement is in large measure a reasoned choice of a certainty over a gamble, the certainty being the settlement and the gamble being the risk that comes with going to trial.”
Paradise v. Wells,
686 F.Supp. 1442, 1446 (M.D.Ala.1988). As a result, the question is not “whether the proposed consent decree is the
*1539
best deal possible” but whether it is “at a minimum, fair, adequate, and reasonable.”
Id.
at 1448 . Based on the views of class counsel and prominent members of the class, the court believes that the proposed settlement will benefit African-Americans. This conclusion springs from the court’s beliefs, based on evidence, that the appointment process will produce quality minority-preferred candidates who would otherwise not choose to run for statewide office and that the advantages of incumbency will allow minority-preferred candidates to achieve election after appointment, thereby allowing black voters greater influence.
65
The court realizes that this result is by no means guaranteed. The proposed settlement risks the possibility of appointees consistently losing elections. On the other hand, this system has the potential for achieving a result that is much more satisfying than single-member districts: as whites become used to seeing blacks in important statewide positions, race will hopefully decrease as a factor in voting. Single-member districts do not necessarily hold out this hope in as short a time period. Thus the proposed judgment is fair to the state as a whole. It represents an answer to the conflicting views found in a recent redistricting case,
Johnson v. Miller,
864 F.Supp. 1354 (S.D.Ga.1994) (three-judge court) (per curiam). The majority of the court in that case held the Georgia congressional districting plan unconstitutional and stated: “The time has come to contemplate more innovative means of ensuring minority representation in democratic institutions.”
Id.
at 1393 . The dissent, on the other hand, argued that “the Constitution does not condemn all race-conscious districting.”
Id.
at 1397 (Edmondson, J., dissenting). The court is presented with a proposed settlement that, while race-conscious, achieves in an innovative manner minority access to the political process without the drawbacks of single-member districts.
Finally, the court, as will be discussed below, finds that the plaintiffs have a good chance of proving a § 2 violation in the method of electing appellate judges. However, the court finds it entirely reasonable that the plaintiffs wish to settle now in light of the lengthy litigation currently ongoing in Alabama and elsewhere over elected judges. This settlement avoids the expense and delay of complex voting rights litigation. Based on the above considerations, the court finds that the proposed final judgment is fair, adequate, and reasonable.
V. WHETHER THE SETTLEMENT IS LEGAL AND GOOD PUBLIC POLICY
The court must also address whether the proposed judgment is legal. Opponents contend that the settlement is illegal because it contravenes state law, § 2 of the Voting Rights Act, and the equal protection clause. The court does not agree and concludes upon review that the proposed settlement is legal and good public policy.
A
Whether the Settlement Violates State Law
The court turns first to the contention that the proposed settlement should not be approved because it conflicts with state law. The first issue for analysis is whether the court has the authority to examine state law issues at all. After finding that it does, the court turns to the state attorney general’s authority to enter into a settlement modifying state law absent a finding of liability. After satisfying itself that the settlement is properly before it, the court examines its power to approve a settlement that changes state law. Finally, the court analyzes the specific modifications to state law contemplated by the proposed settlement.
1.
Whether the Court has Authority to Consider State Law
Before analyzing the extent to which any invalidation of state law affects the proposed judgment, the court must address a threshold issue of its authority to conduct such an examination. The plaintiffs and the defendants argue that the United States
*1540
Constitution’s eleventh amendment guarantee of sovereign immunity restricts the court’s inquiry into the extent to which the proposed settlement conforms to state law as a basis for denying approval to the proposed judgment.
66
This contention is untenable. It is true that “a claim that state officials violated state law in carrying out their official responsibilities is a claim against the State that is protected by the Eleventh Amendment.”
Pennhurst State School & Hosp. v. Halderman,
465 U.S. 89, 121 , 104 S.Ct. 900, 919 , 79 L.Ed.2d 67 (1984). The word “claim” in this holding, however, refers to a cause of action in a suit, not just any assertion about the law by a party.
See id. Pennhurst
does not hold that the eleventh amendment prevents federal courts from considering state law as a factor in evaluating a settlement, even if those same issues could not be raised as a cause of action.
Even assuming that the court is unable to examine state law issues in the course of evaluating a settlement generally, under eleventh amendment jurisprudence Congress may still abrogate sovereign immunity in certain situations. For instance, because the enforcement powers given to Congress in the fourteenth amendment limit state authority, laws enacted pursuant to the fourteenth amendment have been viewed as falling outside the limits of the eleventh amendment. Thus, in
Fitzpatrick v. Bitzer,
427 U.S. 445, 456 , 96 S.Ct. 2666, 2671 , 49 L.Ed.2d 614 (1976), the Supreme Court allowed an action against a state under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C.A. §§ 2000e to 2000e-17;
see also Hutto v. Finney,
437 U.S. 678, 693-98 , 98 S.Ct. 2565, 2575-77 , 57 L.Ed.2d 522 (1978) (attorney’s fees under Civil Rights Attorney’s Fees Awards Act of 1976, 42 U.S.C.A § 1988, upheld against state). Like the fourteenth amendment, the fifteenth amendment affords Congress enforcement power. The Voting Rights Act was passed pursuant to the enforcement authority of the fifteenth amendment.
State of South Carolina v. Katzenbach,
383 U.S. 301, 308 , 86 S.Ct. 803, 808 , 15 L.Ed.2d 769 (1966). Just as laws such as Title VII passed pursuant to the fourteenth amendment trump the eleventh amendment, so does the Voting Rights Act.
See id.
at 325 , 86 S.Ct. at 817 (fifteenth amendment “supersedes contrary exertions of state power”);
City of Rome v. United States,
446 U.S. 156, 178-80 , 100 S.Ct. 1548, 1562-63 , 64 L.Ed.2d 119 (1980) (federalism overridden by legislation enforcing fifteenth amendment). There is no eleventh amendment bar to a federal court examining the extent to which a voting rights settlement conforms to existing state law.
67
2.
Whether the State Attorney General Has Authority to Enter into a Settlement Modifying State Law
Opponents of the proposed settlement contend that the attorney general cannot agree to modifications in state law to settle this case absent a finding by the court that the state has violated federal law.
See Brooks,
848 F.Supp. at 1563 (attorney general permitted to settle in violation of state law only if federal liability determined);
see also League of United Latin American Citizens,
999 F.2d at 845-47.
The Alabama Supreme Court has held that “the attorney general has the power to manage and control all litigation on behalf of the State of Alabama.”
Ex parte Weaver,
570 So.2d 675, 684 (Ala.1990). This power at a minimum includes the ability to settle a case if the settlement does not conflict with state law.
State ex rel. Carmichael v. Jones,
252 Ala. 479 , 41 So.2d 280, 285 (Ala.1949). Assuming that the proposed set
*1541
tlement does conflict with some aspects of state law, the court must conduct further analysis into the attorney general’s power to settle cases. It is important to note that
Jones
dealt with a state law claim rather than a federal one. In a federal suit, the attorney general must be cognizant not only of violations of state law but federal law as well. It is basic constitutional law that “the Supremacy Clause invalidates all state laws that conflict or interfere with an Act of Congress.”
Rose v. Arkansas State Police,
479 U.S. 1, 3 , 107 S.Ct. 334, 335 , 93 L.Ed.2d 183 (1986) (per curiam). Therefore, if the attorney general believes that state law violates federal law, his duty is to uphold federal law.
See Delchamps, Inc. v. Alabama State Milk Control Bd.,
324 F.Supp. 117, 118 (M.D.Ala.1971) (three-judge court) (per curiam). If a state admits it is violating federal law, it would be a waste of time and resources for the court to hold a trial merely to give the attorney general the power to settle on a remedy changing state law. Since most § 2 remedies involve changes to state or local law, requiring a court finding of liability would effectively destroy the strong policy in favor of settlement in such eases. For this reason, the attorney general must have the power to enter into a settlement that alters state law if liability is admitted when the purpose is to correct federal law violations.
68
This lawsuit has the added complication that the state does not admit liability. There are numerous cases that hold, however, that a jurisdiction is not required to admit liability to settle litigation. Recent Eleventh Circuit Court of Appeals decisions in the employment discrimination area suggest that it is not required that “a city settling litigation by consent decree declare
itself
to have violated the law.”
In re Birmingham Reverse Discrimination Employment Litig.,
20 F.3d 1525, 1539 (11th Cir.1994);
see also Ensley Branch, NAACP v. Seibels,
31 F.3d 1548, 1557-58 (11th Cir.1994). Likewise, requiring a jurisdiction to admit liability before settling a voting rights action would thwart the strong policy in favor of settlement. The attorney general need not admit liability in order to settle a § 2 case that modifies state law as long as there is sufficient evidence to support the alleged § 2 violation.
69
See Moch v. East Baton Rouge Parish School Bd.,
533 F.Supp. 556, 559-60 (M.D.La.1980) (§ 2 consent decree in case that modified state law approved with provision denying liability).
Finally, there is no state law prohibiting state officials from entering into a settlement, which although in conflict with state law, resulted from a good faith federal challenge to a state law or practice. In such a circumstance, for this federal court to hold that a state election system can be changed only after trial and that state officials cannot save the state the expense of litigation by reaching a settlement would be presumptive. In this situation, a federal court should show deference to the state interests articulated and advanced by those state officials who are properly before the court on behalf of the state as an entity.
3.
Whether the Court Has Authority to Approve a Settlement that Modifies State Law
The court is satisfied that it can examine state law and that the proposed settlement is properly before it. The next question is whether the court has the authority to approve a settlement that changes state law. Outside of the context of approving a settlement, courts have broad power to remedy violations of the federal Constitution. A federal court, for instance, can order taxes to be raised above a state-mandated limit to remedy a violation of the fourteenth amend
*1542
ment.
Missouri v. Jenkins,
495 U.S. 33, 57 , 110 S.Ct. 1651, 1666 , 109 L.Ed.2d 31 (1990). More specifically, the Eleventh Circuit has recognized the broad equitable powers of district courts in voting rights cases.
Dillard v. Crenshaw County,
831 F.2d 246, 248 (11th Cir.1987). The Voting Rights Act implicitly assumes that federal courts will have the power to change state election systems; otherwise, there would be a right without a remedy. Thus, if a court determines that there is a § 2 violation, it may impose a remedy that overrides state law.
See Upham v. Seamon,
456 U.S. 37, 40-42 , 102 S.Ct. 1518, 1521 , 71 L.Ed.2d 725 (1982) (per curiam).
The relief a court can provide through approving a proposed settlement is at least as broad as the relief it can award after trial.
Local Number 93 v. City of Cleveland,
478 U.S. 501, 525 , 106 S.Ct. 3063, 3077 , 92 L.Ed.2d 405 (1986). If a federal court can order a state to adopt a voting plan that conflicts with state law, then it certainly can approve a judgment in which the state voluntarily adopts changes in its laws to comply with federal law. This court held in a previous voting rights suit that government bodies can be restructured through a settlement “in a manner other than that prescribed by state statutory and constitutional law.”
Crenshaw County,
748 F.Supp. at 828 . Other courts have reached similar conclusions about their ability to approve voting rights remedies that modify state law.
Armstrong v. Adams,
869 F.2d 410, 414 (8th Cir.1989) (“Any limitation of power imposed by state law on the Board of Election Commissioners [to call the new election in the consent decree] is vitiated by the authority of the district court to remedy constitutional violations.”);
Moch,
533 F.Supp. at 561 (district court approved consent decree arrived at by school board defendant and other parties in § 2 case implementing election plan that temporarily modified state law).
In approving changes to state law, however, a federal court must be cautious. After all, the United States Constitution gives states the power to regulate elections and decide how state officials are chosen.
Sugarman v. Dougall,
413 U.S. 634, 647 , 93 S.Ct. 2842, 2850 , 37 L.Ed.2d 853 (1973). Yet state autonomy cannot get in the way of remedying voting discrimination.
Katzenbach,
383 U.S. at 325 , 86 S.Ct. at 817 ;
City of Rome,
446 U.S. at 178-80 , 100 S.Ct. at 1562-63 . In light of federalism concerns, however, the court has a duty to ensure that the proposed settlement conforms with state law except to the extent the evidence justifies modifications to fulfill the purpose of remedying discrimination. Indeed, for this reason, the plaintiffs and the defendants here removed a provision in the proposed judgment that would have given the chief justice power to appoint judges and justices if the governor failed to do so. In examining the remaining modifications to state law, therefore, the court must be mindful both of whether they are necessary to fulfill the objectives of the settlement and of the extent of the change.
4.
Whether the Modifications to State Law Require the Court to Disapprove the Settlement
The proposed final judgment entails four arguable changes in state law: (1) introducing an appointment procedure for some judicial seats; (2) denying candidates the right to run for certain judgeships; (3) expanding the size of the appellate courts; and (4) infringing on the governor’s power to appoint judges.
a.
Appointment Instead of Election
The change to an appointment procedure infringes in a limited way on the right of Alabama voters to elect judges.
70
The state constitution provides for election of all judges. Ala. Const, art. VI, § 6.13. The proposed judgment allows for appointments to vacancies, created seats, and open seats. A nominating commission is set up to facilitate the process.
71
It is important to under
*1543
stand, however, what the proposed judgment does not change. In the ease of vacancies, the constitution already mandates appointment. Ala. Const, art. VI, § 6.14. Any provisions of the settlement regarding appointments to fill vacancies, therefore, do not infringe on the right to elect judges. Newly created judgeships have been filled by appointment pursuant to legislative act.
72
It is true that prior appointments have not been for full terms. The difference is merely a matter of degree, however. The state constitution requires that “judges shall be elected by vote.” Ala. Const, art. VI, § 6.13. Taken literally, all created seats seemingly should be subject to election immediately.
73
The state legislature has not interpreted the constitution in this way. It is reasonable, therefore, to conclude that the appointment procedure for created seats does not conflict with state law.
Nevertheless, for purposes of further analysis, the court will assume that appointing judges for a full term to newly created seats does conflict with state law.
See Opinion of the Justices,
367 So.2d 648, 649 (A1.1978). The court also assumes that the appointment of judges to open seats on the supreme court conflicts with state law.
74
However, based on the following analysis, the court finds that the scope of these violations is limited and the changes are necessary to fulfill the goal of remedying discrimination.
The proposed judgment temporarily removes from the elective process some newly created and open judicial seats. The scope of this provision is limited both by number and by time. No more than six appellate court seats at any one time can be filled through the appointment procedure.
75
Each of the courts of appeals will automatically get two appointees in 1997. The remaining two potential remedial seats, which are on the supreme court, might be filled by election or appointment to a vacancy before any open or created seats would be filled by appointment. Each appointee to an open or created seat will have to face election after six years. In addition, as explained earlier, this period of incumbency is not greatly out of line with state practice. Within the last 30 years, one appellate judge served two successive appointive terms totalling almost four years and three other appellate judges served appointive terms of approximately two and a half years. For these reasons, the court finds that the state law infringement is limited in scope.
These changes in state law are necessary to allow minority-preferred candidates the advantages of incumbency. Evidence before the court from Justice Adams and his campaign manager, J. Mark White, shows that incumbency is important in gaining election
*1544
to a judgeship.
76
The evidence also shows that a longer period of incumbency makes election easier than a shorter period.
77
And this appears to be not only important but critical in the case of black judges.
78
There is also evidence to support the view that serving six years rather than a lesser term is crucial to achieving the full effects of incumbency for blacks.
79
For instance, a longer period of time allows a candidate to raise more money, gain respect for decisions, and get to know lawyers.
80
A comparison of the first and second races of appointees demonstrates the importance of length of incumbency. Justice Adams, for instance, who was appointed in 1980, had a hard time winning his 1982 campaign but faced a less difficult race in 1988.
81
Similarly, Justice Gorman Houston, who was appointed in 1985, had a difficult race in 1986, but a comfortable one in 1992.
82
A comparison of these two races, however, further suggests that blacks are disadvantaged more than whites by short periods of incumbency. In his first race, Justice Adams faced a relative unknown with little support in the legal community; Justice Houston, in his first race, faced a successful lawyer supported by other attorneys.
83
Despite this relative advantage over Justice Houston, Justice Adams had a narrower victory.
84
In sum, the record supports the conclusion that a six-year term is important to afford appointees — in particular black appointees — to open and created seats the full advantage of incumbency.
Finally, infringing on the rights of voters in order to fulfill the purposes of the Voting Rights Act has precedent. The court has previously approved a settlement under which county commissioners, who are supposed to be elected under state law, were appointed instead as part of a temporary measure while the county moved from an at-large system to a single-member districting system.
Crenshaw County,
748 F.Supp. at 822 .
b.
Rights of Judicial Candidates
Opponents of the proposed settlement argue that it infringes on the rights of potential judicial candidates. Under certain circumstances, a candidate for an open supreme court seat may find that the seat will be filled by appointment instead. Opponents maintain that this situation violates state law, which allows all qualified candidates to appear on the general election ballot. Ala.Code § 17-7-1 (Supp.1994). This argument is fallacious because candidates are only entitled to run for positions that exist. The proposed settlement temporarily removes supreme court open seats from the electoral process under some circumstances, thereby removing any right to appear on the ballot. While it may be inconvenient for candidates to find this out at a late date, such minor inconvenience is permissible to fulfill the purposes of the proposed settlement. If this situation ever occurs, candidates will still be able to seek the next available court seat.
c.
Expanding the Size of the Courts
With regard to expansion of the appellate courts, opponents of the proposed judgment argue that the legislature is vested with the authority to decide the number of judges. Although this is true, it is also the ease that Alabama law places no limit on the number of appellate judges. The court has
*1545
previously approved a settlement that expanded a county commission beyond the state statutory limit,
Crenshaw County,
748 F.Supp. at 828 , and ordered a county commission expanded over its objection from four to seven members to remedy § 2 violations,
Dillard v. Baldwin County Com’n,
694 F.Supp. 836, 843 (M.D.Ala.),
amended,
701 F.Supp. 808 (M.D.Ala.),
aff'd,
862 F.2d 878 (11th Cir.1988) (table).
Cf. McNeil v. Springfield Park Dist.,
851 F.2d 937, 946 (7th Cir.1988),
cert. denied,
490 U.S. 1031 , 109 S.Ct. 1769 , 104 L.Ed.2d 204 (1989) (discussing circumstances in which court could increase size of elected body);
Cousin v. McWherter,
840 F.Supp. 1210, 1221 (E.D.Tenn.1994) (suggesting adding trial judges as remedy for § 2 violation).
In light of this precedent, it is even more evident that it is within the court’s power to increase the size of appellate courts when, as is true in this case, the remedy is not only part of a settlement but has been suggested by the state itself as a
less
intrusive remedy than such conventional remedies as single-member districting. The court therefore finds that increasing the size of the courts of appeals is a reasonable means of achieving fairer representation for African-Americans. Creating seats now, rather than waiting for vacancies or open seats on smaller courts, is an appropriate remedy because blacks have waited long enough for relief. The proposed settlement increases the size of the supreme court only as a fallback measure if sufficient progress has not been made by 1998. The supreme court would then return to nine members at the next opportunity. The expansion provisions are limited and will help achieve adequate representation for African-Americans. As to the settlement intruding on the legislature’s prerogative to decide whether to fund additional seats, if a court can
order
a state to bear any additional costs incident to replacing an at-large scheme with a more intrusive single-member districting scheme, it can surely
approve
the added costs the State of Alabama asked to be placed on it as part of the less intrusive measures suggested in the proposed settlement.
See also Jenkins,
495 U.S. at 55 , 110 S.Ct. at 1665 (court can order taxes to be raised to remedy segregation).
d.
Governor’s Appointment Power
With regard to the governor’s power of appointment, nothing in the state constitution says that the governor’s power cannot be limited. The proposed settlement complies with the state constitution in that vacancies “shall be filled by appointment by the governor.” Ala. Const, art. VI, § 6.14. Limiting the governor’s choice would certainly be permissible if the legislature decided to do so.
85
To remedy past discrimination, the court can act as well.
5.
Whether the Settlement’s Changes to State Law are More Limited than Changes Effected by Single-Member Districts
In assessing the changes in state law entailed by the proposed final judgment, the court is also influenced by a comparison with the changes that would be necessitated by the alternative of single-member districts. A districting system for electing appellate judges would violate the Alabama Constitution, which provides: “All judges shall be elected by vote of the electors within the territorial jurisdiction of their respective courts.” Ala. Const, art. VI, § 6.13. Appellate court jurisdiction is statewide. Some of the intervenors, however, make the claim that because election is to be “within” rather than “throughout” the jurisdiction, single-member districts for appellate judges would not violate the constitution. This is a strained reading of § 6.13. Further, Alabama statutory law mandates that each of the appellate courts will be elected statewide.
86
*1546
The state further has an interest in ensuring that voters have the opportunity to vote for all appellate judges.
87
The proposed settlement upholds that interest to a greater extent than single-member districts. In deciding the appropriateness of single-member districts for appellate judges, it is useful to keep in mind the difference between legislative and judicial bodies.
88
Legislators by design represent various parts of the state. They represent constituents from certain areas rather than the state as a whole. In this context, a legislator can achieve results by making trade-offs with other legislators. Judges, however, are not engaged in the making of policy so much as interpreting the law. It would be inappropriate for judges to trade votes or base a decision on the views of a particular constituency. Even the appearance that appellate judges favored their constituency over the interests of the state as a whole would undermine the legitimacy of the judiciary. The state has an interest in maintaining that legitimacy.
B.
Whether the Settlement Violates the Voting Rights Act
Having determined that state law grounds do not prevent the court from approving the proposed settlement, the court now turns to two arguments under federal law. The first argument is statutory. Some of the opponents of the proposed judgment argue that appointing judges within a system that retains at-large elections is not an appropriate remedy under the Voting Rights Act. In addressing this argument, the court begins with the logical proposition that “any proposal to remedy a Section 2 violation must itself conform with Section 2.”
Crenshaw County,
831 F.2d at 249 . The court is aware that single-member districts are preferred over at-large systems.
E.g., Growe v. Emison,
— U.S. -, -, 113 S.Ct. 1075, 1084 , 122 L.Ed.2d 388 (1993). However, the mere fact that districting is a remedy that has often been used in the past does not compel the court to order it this time.
See Town of Louisville,
730 F.Supp. at 1548 (“Single-member districting plans are a common, though not exclusive, remedy in § 2 cases.”). There is no authority that says the court must impose a single-member system. To the contrary, the court has previously approved settlements that did not implement single-member districting in response to at-large systems that violated § 2.
Dillard v. Town of Cuba,
708 F.Supp. 1244 (M.D.Ala.1988) (limited voting);
Dillard v. Chilton County Bd. of Educ.,
699 F.Supp. 870 (M.D.Ala.1988),
aff'd,
868 F.2d 1274 (11th Cir.1989) (table) (cumulative voting).
The court has already explained why single-member districts, as a matter of policy, are not necessarily the best remedy in this case. The court is particularly concerned that a principle preferring single-member districts that has been developed primarily in the context of rulings on election plans regarding legislative bodies not be -unthinkingly transferred to the different context of appellate judges. At-large elections are only discriminatory in conjunction with other factors. For this reason, the Eleventh Circuit has noted that
*1547
“at-large procedures that are discriminatory in the context of one election scheme are not necessarily discriminatory under another scheme. The Supreme Court has repeatedly said that at-large procedures are not unconstitutional per se.”
Crenshaw County,
831 F.2d at 250 . The court has already found that the proposed settlement offers an adequate remedy. This is so notwithstanding that the basic election system remains at-large. Because districting is not a required remedy, the use of appointments as a temporary measure while retaining an at-large system does not violate § 2.
C.
Whether the Settlement Violates the Equal Protection Clause
The court has disposed of the argument that the proposed final judgment violates federal statutory law. It now turns to federal constitutional law. In this area, the court must address the objection that the proposed judgment is illegal because of its use of race-conscious relief. After reviewing the claims of the objectors and conducting its own independent analysis, the court concludes that the race-conscious provisions in the proposed settlement are legal.
Opponents of the proposed judgment are correct that it provides race-based relief. The judgment itself states that “the provisions are intended to serve the beneficial goal of enhancing racial diversity in the membership of [appellate] courts.” In order to fulfill this goal, the proposed judgment includes two race-conscious provisions: (1) the composition of the nominating commission and (2) the triggering process for activating the nominating process. The actual appointment provisions, though geared towards selecting minority-preferred candidates, do not limit nominations to African-Americans.
Opponents of the proposed settlement contend that its race-conscious provisions violate the equal protection clause of the fourteenth amendment under
Shaw v. Reno,
— U.S. -, 113 S.Ct. 2816 , 125 L.Ed.2d 511 (1993).
Shaw
set forth a two-step inquiry for determining whether racial gerrymandering is unconstitutional. The first question is whether the fourteenth amendment is applicable. It appears that, under
Shaw ,
an equal protection claim is cognizable if a redistrieting plan is so irrational that, absent explanation, one would have to conclude that it was a product of racial gerrymandering.
Id.
at -, 113 S.Ct. at 2832. If the allegations of racial gerrymandering are successfully contradicted, then there would be no fourteenth amendment violation. If not, then the court must proceed to the second step, which is to subject the plan to strict scrutiny.
Id.
at -, 113 S.Ct. at 2830. Strict scrutiny, which is meant to prevent purposeful discrimination, requires state legislation that distinguishes among citizens on the basis of race or, though race-neutral, is unexplainable except on racial grounds to be narrowly tailored to further a compelling state interest.
Id.
at -, 113 S.Ct. at 2825.
Prior to
Shaw ,
district courts did not consider fourteenth amendment equal protection issues when approving voting rights settlements.
89
The Supreme Court, however, has left unclear the exact contours of
Shaw .
This court, therefore, begins by asking the threshold question of whether
Shaw
is limited to the redistrieting context or can be extended to the appointment-based remedy in this ease. Every decision applying
Shaw
of which the court is aware has done so in the context of analyzing a districting plan. The thrust of
Shaw
appears to be, however, that race-based measures are to be treated the same in voting as in other areas.
Id.
at —, 113 S.Ct. at 2825. The court will therefore assume that the same standards apply to the appointment procedure in this ease as would apply to any other settlement in a lawsuit with race-conscioiis measures.
90
In doing so, however, the court must remember
*1548
that legal standards developed in prior “affirmative-action” cases involving race-conscious measures, usually in the employment area, are not always wholly transferable.
Under the
Shaw
analysis, because the proposed judgment is race-based, it is subject to equal protection analysis. Therefore, the court applies strict scrutiny analysis to the proposed settlement.
91
The “purpose of strict scrutiny is to ‘smoke out’ illegitimate uses of race by assuring that the legislative body is pursuing a goal important enough to warrant use of a highly suspect tool.”
City of Richmond v. J.A. Croson Co.,
488 U.S. 469, 493 , 109 S.Ct. 706, 721 , 102 L.Ed.2d 854 (1989) (plurality opinion). It “also ensures that the means chosen ‘fit’ this compelling goal so closely that there is little or no possibility that the motive for the classification was illegitimate racial prejudice or stereotype.”
Id.
Strict scrutiny requires that racial classifications “be narrowly tailored to further a compelling governmental interest.”
Shaw ,
— U.S. at -, 113 S.Ct. at 2825. The court first turns to the compelling state interest prong of the inquiry.
1.
Compelling State Interest
a.
Defining the Interests
The court examines two interests in this case that potentially justify race-based measures.
92
The first is remedying past and present discrimination. The second is complying with § 2 of the Voting Rights Act.
93
Affirmative action jurisprudence makes clear that a state has a compelling interest in remedying its past and present discrimination.
E.g., United States v. Paradise,
480 U.S. 149, 167 , 107 S.Ct. 1053, 1064 , 94 L.Ed.2d 203 (1987) (plurality opinion);
Ensley Branch, NAACP v. Seibels,
31 F.3d 1548, 1564-65 (11th Cir.1994);
Peightal v. Metropolitan Dade County,
26 F.3d 1545, 1552 (11th Cir.1994).
The court also concludes that compliance with the Voting Rights Act is a compelling state interest.
94
The best way of understanding why this is so is to reflect on the purposes of the Voting Rights Act. The Act was passed precisely to remedy government-sponsored discrimination in voting.
Katzenbach,
383 U.S. at 308-09 , 86 S.Ct. at 808 . When Alabama attempts to comply with the Act it does so to remedy past and present discrimination, which is a compelling interest. In addition, there is a legal basis rooted in “affirmative-action” jurisprudence for the conclusion that compliance with the Voting Rights Act is a compelling state interest. The Supreme Court has declared that
*1549
states “have a very strong interest in complying with federal antidiscrimination laws that are constitutionally valid as interpreted and as applied.”
Shaw ,
— U.S. at -, 113 S.Ct. at 2830. The Voting Rights Act has not been held unconstitutional and complying with it remains a strong state interest. More generally, the Court has said that a statutory violation can be a basis for a governmental body’s determination that remedial measures are necessary.
Croson,
488 U.S. at 500 , 109 S.Ct. at 725 (majority opinion). Thus, in determining whether there has been prior discrimination by a public employer that justifies remedial action, courts have looked to whether the evidence supports a prima facie case of employment discrimination under Title VII.
Id.
at 501 , 109 S.Ct. at 725-26;
Wygant v. Jackson Bd. of Educ.,
476 U.S. 267, 292 , 106 S.Ct. 1842, 1856 , 90 L.Ed.2d 260 (1986) (O’Connor, J., concurring);
Peightal,
26 F.3d at 1553 . Similarly, lack of compliance with the Voting Rights Act would serve as strong evidence for remedial measures.
b.
Defining the Evidentiary Standard
In determining whether a state actor has engaged in racial discrimination sufficient to justify remedial measures based on race, the court must conduct an evidentiary inquiry.
E.g., Peightal,
26 F.3d at 1553 . The governmental body must have a “ ‘strong basis in evidence for its conclusion that remedial action was necessary.’ ”
Croson,
488 U.S. at 500 , 109 S.Ct. at 725 (majority opinion) (quoting
Wygant,
476 U.S. at 277 , 106 S.Ct. at 1849 (plurality opinion)).
95
The test can also be formulated as requiring “a prima facie case of a constitutional or statutory violation.”
Croson,
488 U.S. at 500 , 109 S.Ct. at 725 (majority opinion).
96
In assessing the strength of the evidence, the court is aware that it cannot depend on societal discrimination alone.
Id.
at 500 , 109 S.Ct. at 725. Race-conscious relief is justifiable only if discrimination is identified with some specificity in the governmental unit to which the relief is to apply.
Id.
at 504, 109 S.Ct. at 727;
Peightal,
26 F.3d at 1553 .
In examining whether the state has a compelling interest to justify the proposed judgment, the court focuses on evidence that the state was not complying with § 2. The state’s interest in remedying past discrimination and in avoiding a § 2 violation can both be established through the same evidentiary showing because a violation of § 2 is necessarily an instance of specific past discrimination.
97
The court, therefore, must conduct a § 2 liability inquiry. In doing so, the court makes use of types of evidence approved in past “affirmative-action” cases. Employment cases make clear that statistical evidence of a disparity between minorities hired by a public employer and qualified minorities is evidence that is properly used to justify race-based remedial measures.
E.g., Croson,
488 U.S. at 501-02 , 109 S.Ct. at 725-26 (majority opinion);
Seibels,
31 F.3d at 1565 . Anecdotal evidence is also relevant.
Seibels,
31 F.3d at 1565 . Finally, even though “evidence of historical discrimination by the defendants may not be sufficient by itself to justify race-conscious relief, it is fully appropriate to consider such historical evidence, especially where the historical discrimination has yet to be remedied.”
Shuford,
846 F.Supp. at 1522 . Thus, the court will look to statistical, anecdotal, and historical evidence in conducting its § 2 inquiry to determine whether a strong basis in evidence for implementing remedial measures is present.
Section 2 liability need not actually be proven to justify the proposed settlement:
“Although
Croson
requires that a public employer show strong evidence of discrimination when defending an affirmative ac
*1550
tion plan, the Supreme Court has never required that, before implementing affirmative action, the employer must have already proved that it has discriminated. On the contrary, formal findings of discrimination need neither precede nor accompany the adoption of affirmative action.”
Seibels,
31 F.3d at 1565 (citing cases). Thus, the state need not admit § 2 liability nor does there have to be a judicial finding of a § 2 violation prior to the state entering into an affirmative action settlement.
Howard v. McLucas,
871 F.2d 1000, 1007-08 (11th Cir.) (employment discrimination),
cert. denied,
493 U.S. 1002 , 110 S.Ct. 560 , 107 L.Ed.2d 555 (1989). Instead, the court must now decide whether there is a strong basis in evidence for concluding that there is a prima facie § 2 violation in the Alabama appellate judicial electoral system.
c.
Examining § 2 Liability
Section 2 of the Voting Rights Act is violated if the “totality of the circumstances” reveal that citizens of a particular race “have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.” 42 U.S.C.A. § 1973 (West 1994).
98
In order to determine whether official action has racially discriminatory results, courts must decide whether “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.”
Thornburg v. Gingles,
478 U.S. 30, 47 , 106 S.Ct. 2752, 2764 , 92 L.Ed.2d 25 (1986). In order to show that such an inequality exists1 in a case challenging a multi-member system, “a bloc voting majority must
usually
be able to defeat candidates supported by a politically cohesive, geographically insular minority group.”
Id.
at 49 , 106 S.Ct. at 2765-66. There are three threshold requirements to making out this proof: first, that a minority group is “ ‘sufficiently large and geographically compact to constitute a majority in a single-member district’; second, ‘that it is politically cohesive’; and third, ‘that the white majority votes sufficiently as a bloc to enable it ... usually to defeat the minority’s preferred candidate.’”
Emison ,
— U.S. at -, 113 S.Ct. at 1084 (quoting
Gingles,
478 U.S. at 50-51 , 106 S.Ct. at 2766-67 ).
A recent Supreme Court ease makes clear that, though the three
Gingles
requirements are necessary to establishing vote dilution, they are not always sufficient.
Johnson v. De Grandy,
— U.S. -, -, 114 S.Ct. 2647, 2657 , 129 L.Ed.2d 775 (1994). Instead, the court must take into account other relevant facts in examining the totality of the circumstances, including opportunities for the minority group to participate in the political process.
Id.
at -, 114 S.Ct. at 2657. The court will, therefore, proceed by examining the three
Gingles
requirements before turning to other factors that are relevant to showing that the totality of the circumstances provide a strong basis of evidence to conclude vote dilution occurred in this case.
i.
Threshold Requirements
Because the courts of criminal and civil appeals consist of five members each and the supreme court is made up of nine members, the first prong of the
Gingles
test requires the court to ask whether blacks could constitute a geographically compact majority in a single-member district of a five-district plan and in a single-member district of a nine-district plan.
99
The court finds, based on the expert report of Jerry Wilson, that there is a strong basis in evidence to conclude that African-Americans are sufficiently numerous and geographically compact to form a majority in at least one single-member district in a
*1551
five- or nine-member district plan.
100
Wilson sets forth two five-member districting plans that each allow for one district with a black voting age population of over 50%.
101
Wilson also details two nine-member districting plans that each provide for two districts with a majority black voting age population.
102
Based on this evidence, the plaintiffs have met the numerosity requirement. Further, at least one of each of the five- and nine-member districting plans has districts that meet the requirement of geographic compactness, which this court has described as ensuring effective representation.
Dillard v. Baldwin County Bd. of Educ.,
686 F.Supp. 1459, 1466 (M.D.Ala.1988);
see also
Pamela S. Karlan,
Maps and Misreadings: The Role of Geographic Compactness in Racial Vote Dilution Litigation,
24 Harv.C.R-C.L.L.Rev. 173, 210-212 (1989) (approving of functional approach to compactness). None of the plans looks anything like the plan found objectionable in
Shaw .
Because there exist a five-member and a nine-member dis-tricting plan in which blacks could constitute a geographically compact majority in at least one district, there is a strong basis in evidence to conclude that the first
angles
requirement is satisfied.
The court also finds that there is a strong basis in evidence that blacks in Alabama are politieally cohesive, meeting the second prong of the
angles
test. Political cohesion must be shown because without it the- challenged electoral structure is not necessarily impeding minority interests,
angles,
478 U.S. at 51, 106 S.Ct. at 2766. One way of showing the necessary political cohesion is by analyzing voting patterns to see if members of a minority group generally vote for the same candidates.
Id.
at 56, 106 S.Ct. at 2769. Candidates of choice of a minority group need not be minorities themselves.
See, e.g., Carrollton Branch of NAACP v. Stallings,
829 F.2d 1547 , 1557 (11th Cir.1987), ce
rt. denied,
485 U.S. 936 , 108 S.Ct. 1111 , 99 L.Ed.2d 272 (1988). The expert report of Gordon Henderson, which analyzes Alabama elections from 1982 to 1992, provides ample evidence of black political cohesiveness.
103
Henderson conducted a bivariate regression analysis to compare a precinct’s black and white voting age populations and the votes a candidate received.
104
This regression produces an estimate of what percent of each racial group voted for a candidate. It also produces a measure of the consistency of the relationship across precincts — the r-squared value. Bivariate regression analysis has been approved for use in voting cases.
E.g., id.
at 1558. Non-expert testimony is also acceptable.
Id.
*1552
Based on his analysis of 143 elections, Henderson concluded that
“there can be no doubt that African-Americans were extraordinarily cohesive behind their candidates of choice. In 132 of these 143 contests, better than 80 percent of African-Americans voted for the candidate of their choice. And in 98 of these contests, the percent of African-Americans voting for the candidate of their choice was greater than 95.”
105
These numbers are comparable to those the Supreme Court has found to establish black political cohesiveness.
Gingles,
478 U.S. at 59 , 106 S.Ct. at 2770 . Further, the pattern extends over time, which substantiates the result.
Id.
at 57 , 106 S.Ct. at 2769-70. Henderson’s evidence is consistent with prior court decisions finding black political cohesiveness in Alabama.
Dillard v. Crenshaw County,
649 F.Supp. 289, 295 (M.D.Ala.1986) (Calhoun, Lawrence, and Pickens Counties),
remanded,
831 F.2d 246 (11th Cir.1987),
reaff'd on remand,
679 F.Supp. 1546 (M.D.Ala.1988);
United States v. Dallas County Com’n,
636 F.Supp. 704 (S.D.Ala.1986) (Dallas County);
Hale County v. United States,
496 F.Supp. 1206, 1213 (D.D.C.1980) (Hale County).
It is true that only one judicial race, the run off between Justice Adams and Jim Ziegler in 1982, is represented in Henderson’s survey. A number of factors, however, persuade the court that political eohesiveness extends to judicial elections. First, in eight of the ten counties analyzed in the Adams race, more than 80% of blacks voted for Justice Adams, the black candidate.
106
The one statewide judicial race for which data is before the court, therefore, provides evidence of black cohesiveness. Second, the Justice Department has made findings corroborating this data. “Elections at all levels in the state generally are characterized by racially polarized voting. We have repeatedly found this to be the case in past Section 5 reviews, most recently on a statewide basis [in 1992].”
107
The Justice Department further found “that polarized voting extends to judicial elections.”
108
Based on Henderson’s study, pri- or cases, and the findings of the Justice Department, the court finds that there is a strong basis in evidence that the second prong of
Gingles
is satisfied.
The court now turns to the third
Gingles
prong: whether there exists white bloc voting sufficient to usually defeat the preferred candidate of African-Americans. Legally significant white bloc voting occurs when the white bloc vote normally defeats minority votes and white “crossover” votes.
Gingles,
478 U.S. at 56 , 106 S.Ct. at 2769 .
Gingles
makes clear that there is no cutoff point after which white bloc voting can be said to defeat a minority-preferred candidate; rather, that figure will vary depending on local conditions.
Id.
at 56 , 106 S.Ct. at 2769.
Like black political cohesiveness, courts have previously found white bloc voting in various sections of Alabama.
Crenshaw County,
649 F.Supp. at 295 (Calhoun, Lawrence, and Pickens Counties);
Dallas County Com’n,
636 F.Supp. 704 (Dallas County);
Brown v. Bd. of School Comm’rs of Mobile County,
542 F.Supp. 1078, 1091, 1105 (S.D.Ala.1982) (Mobile County),
aff'd,
706 F.2d 1103 (11th Cir.),
aff'd mem.,
464 U.S. 1005 , 104 S.Ct. 520 , 78 L.Ed.2d 705 (1983);
Bolden v. City of Mobile,
542 F.Supp. 1050, 1076 (S.D.Ala.1982) (Mobile County);
Hale County,
496 F.Supp. at 1213 (Hale County). Additionally, the Justice Department’s finding that racially polarized voting is present at
*1553
all levels of elections in Alabama, including judicial elections, indicates that white bloc voting is present.
The court also relies on statistical evidence. Henderson’s survey makes clear that whites, though cohesive, are not as cohesive as blacks. This should not be surprising. The percentage of whites voting for minority-preferred candidates ranges from 0.94% to 68%. Only 17 of the 143 returns show more than 50% of whites voting for minority-preferred candidates.
109
The lack of racially polarized voting in a few elections does not automatically lead to the conclusion that there is no legally significant bloc voting.
Gingles,
478 U.S. at 57 , 106 S.Ct. at 2770 . The overwhelming pattern in Alabama is that whites vote against the minority-preferred candidate.
110
The one judicial race presents stark evidence of the pattern. The percentage of whites voting for Justice Adams ranged from 30% to 46%.
111
In
Gingles ,
white bloc voting was found when white support for black candidates ranged from 8% to 50%.
Id.
at 59 , 106 S.Ct. at 2771. Although this evidence in
Gingles
shows that whites were sometimes more unified than in the Adams raee, the important point is that the majority of whites voted for the white candidate in each of the ten counties in the Adams race.
The third prong of
Gingles ,
however, requires more than white bloc voting. It also requires that such voting usually defeat the preferred candidate of minorities. Of course, “the success of a minority candidate in a particular election does not necessarily prove that the district did not experience polarized voting in that election; special circumstances, such as the absence of an opponent, incumbency, or the utilization of bullet voting, may explain minority electoral success in a polarized contest.”
Id.
at 57 , 106 S.Ct. at 2770;
see also id.
at 75, 106 S.Ct. at 2779. These special circumstances are not meant to be exclusive.
Id.
at 57 n. 26, 106 S.Ct. at 2770 n. 26. The Henderson survey presents a number of instances in which the minority-preferred candidate won. Some of these are likely explainable through special circumstances like those mentioned in
Gingles .
For instance, Justice Adams probably achieved a good number of white votes because of his status as an incumbent. United States Representative Earl Hilliard, a black candidate, won in a majority-black district.
Were this case to proceed to a trial, it is unclear whether the plaintiffs would be able to prove the third
Gingles
prong. It is not the court’s duty, however, to determine § 2 liability with finality at this stage. The court must determine only that there is a strong basis in evidence for the state to conclude that liability would be found. The court bases its decision that this burden has been met as to the third
Gingles
requirement on the following: First, though the data presented by Henderson is incomplete and has not been analyzed for many of the special circumstances that would explain the success of minority-preferred candidates, there is reason to believe that a more complete statistical picture would enhance the plaintiffs’ case. This is suggested by the Justice Department’s findings as well as the work of another expert in
Southern Christian Leadership Conference of Alabama v. Evans,
785 F.Supp. 1469, 1474 (M.D.Ala.1992),
judgment vacated,
18 F.3d 897 (11th Cir.),
vacated and reh’g en banc granted,
18 F.3d 897 (11th Cir.1994).
Second, the evidence before the court suggests that because of the difficulty of running for appellate judge as a black nonincumbent, qualified blacks do not seek election.
112
Pri- or to 1994, no African-American had run for the court of criminal or civil appeals.
113
The only black to run statewide for an appellate judgeship was Justice Adams, an appointee,
*1554
who was elected in 1982 and 1988.
114
Potential judicial candidates who would be the most likely first choices of the black community are not running. The fact that few blacks have been candidates for statewide office in general and the appellate courts in particular should not prevent a § 2 violation from being shown.
Gingles,
478 U.S. at 57 n. 25, 106 S.Ct. at 2769 n. 25;
see also Stallings,
829 F.2d at 1556-59 (finding racially polarized voting on basis of four elections, only one of which was for challenged office). The reason qualified blacks are reluctant to run statewide judicial campaigns is racial discrimination. For instance, Justice Adams won his 1982 run off by a narrow margin, notwithstanding that he had the advantage of incumbency, experience, and funds over his white opponent.
115
To allow the existence .of discrimination to prevent a § 2 liability showing, would defeat the goals of the Voting Rights Act.
See Westwego Citizens for Better Gov’t v. City of Westwego,
872 F.2d 1201 , 1209 n. 9 (5th Cir.1989);
see also Nipper v. Smith,
1 F.3d 1171, 1179 (11th Cir.1993),
vacated and reh’g en banc granted,
17 F.3d 1352 (11th Cir.1994).
Third, there is a larger question presented about what the definition is of a minority-preferred candidate. If this is simply defined as any candidate who draws a majority of the black vote, there is no question but that these candidates are not being totally shut out of office. This is an impoverished definition, however, because it neglects to ask whether blacks have the ability to vote into office a candidate whom they actually desire, not one whom they simply prefer over an alternative.
See Campos v. City of Baytown,
840 F.2d 1240, 1245 (5th Cir.1988) (disagreeing with argument that “any time a candidate gets a majority of the minority votes he is the ‘chosen representative’ of the minority group”),
cert. denied,
492 U.S. 905 , 109 S.Ct. 3213 , 106 L.Ed.2d 564 (1989).
116
A similar conclusion is virtually compelled in the context of multiple-seat elections. In this situation, where voters can vote for more than one candidate, victorious candidates who receive more than 50% of the black vote are not the true candidates of choice of the African-American community if defeated candidates received an even greater percentage of the black vote.
Collins v. City of Norfolk,
883 F.2d 1232, 1237-40 (4th Cir.1989), ce
rt. denied,
498 U.S. 938 , 111 S.Ct. 340 , 112 L.Ed.2d 305 (1990). Although appellate judicial races in Alabama are conducted by numbered posts, a candidate who receives the majority of the black vote is still not necessarily the true candidate of choice of the African-American community. For instance, blacks might have preferred a different candidate in the primary or a black candidate might have chosen not to run because of the small chance of winning. The court realizes it is treading on dangerous ground by attempting to ascertain who is really the black community’s candidate of choice. Yet it is important to introduce a measure of subjectivity into the statistical analysis to understand what it is that is being measured. Under the current statistical techniques, the minority-preferred candidate is simply the candidate whom blacks prefer the most of those running. Because many potential black candidates are choosing not to run or losing in primaries, the statistical evidence does not present a full picture of the extent to which white bloc voting is preventing minority-preferred candidates from electoral success.
Based on prior ease law, findings of the Justice Department, statistical analysis, and anecdotal evidence, the court finds that a strong basis in evidence exists to substantiate the third prong of
Gingles .
ii.
Totality of the Circumstances
The court has found a strong basis in evidence that the three
Gingles
prerequisites have been satisfied and now turns to other factors that relate to showing that the totali
*1555
ty of the circumstances indicate that blacks have less opportunity than whites to participate in the political process and to elect candidates of choice of the African-American community. The Supreme Court has held that, in assessing the totality of the circumstances, courts may consider a number of factors listed in the Senate Judiciary Committee Report on the Voting Rights Act.
Gingles,
478 U.S. at 48 , 106 S.Ct. at 2765.
117
The court may also examine other relevant factors.
Id.
at 46 , 106 S.Ct. at 2763. The court, based on the presence of a number of the Senate Report factors, finds that a strong basis in evidence exists to conclude that the totality of the circumstances show a § 2 violation. In particular, the court finds that: (1) African-Americans in Alabama have experienced discrimination by the state in all areas of their lives, notably in employment and education; (2) this discrimination has extended to the area of voting; (3) such voting discrimination has included state practices and procedures discriminating against blacks; (4) elections involving black candidates have further been characterized by racial appeals; and (5) the result of this discrimination has been that blacks find it difficult to achieve statewide office.
The court begins by noting the abundant evidence showing that blacks in Alabama have suffered from the state’s discrimination in all aspects of their lives.
Crenshaw County,
640 F.Supp. at 1359-60 (detailing findings of societal discrimination). The court here summarizes only that evidence relating to past and present discrimination in education and employment, two areas which can affect the ability of blacks to participate in the political process. Discrimination in education has been and continues to be present in Alabama.
E.g., Lee v. Macon County Bd. of Educ.,
231 F.Supp. 743, 750-51 (M.D.Ala.1964) (three-judge court) (per curiam) (state policy of segregation in elementary and secondary schools);
Knight v. State of Alabama,
14 F.3d 1534, 1538-39 (11th Cir.1994) (state operated racially separate system of higher education until 1960’s and has not eliminated vestiges of dual system). To cite one example that is particularly pertinent to this case, until the 1960’s, the University of Alabama School of Law, the only state supported law school in Alabama, refused to admit black applicants. It was only in 1964 that the first black student enrolled.
118
Alabama also has a history of discrimination in state employment.
E.g., United States v. Frazer,
317 F.Supp. 1079 (M.D.Ala.1970) (state agencies discriminated against blacks in employment);
Paradise v. Prescott,
585 F.Supp. 72 (M.D.Ala.1983),
aff'd,
767 F.2d 1514 (11th Cir.1985),
aff'd,
480 U.S. 149 , 107 S.Ct. 1053 , 94 L.Ed.2d 203 (1987) (racially discriminatory practices in employing state troopers);
Shuford,
846 F.Supp. at 1522-28 (past and
*1556
present discrimination in postsecondary educational system). This discrimination has acted to hinder the ability of blacks to participate in the political process.
Baldwin County Bd. of Educ.,
686 F.Supp. at 1467.
The court now turns to the history of official discrimination in the state directly regarding voting that has hindered the ability of blacks to participate in the democratic process. Alabama’s history of voting discrimination is legion. A comprehensive description of this discrimination is detailed in
Crenshaw County,
640 F.Supp. at 1356-59 . Rather than repeat that discussion, the court here focuses on a few important examples. In 1898, the Alabama legislature passed an election statute known as the Sayre Law. “The express purpose of the law, according to its author, was to legally eliminate the Negro from politics in Alabama.”
Bolden,
542 F.Supp. at 1062 . The law apparently caused black voter turnout to drop 22% between 1892 and 1894.
Id.
Then, at the turn of the century, Alabama’s “Constitutional Convention of 1901 was part of a movement that swept the post-Reconstruction South to disenfranchise blacks.”
Hunter v. Underwood,
471 U.S. 222, 229 , 105 S.Ct. 1916, 1920 , 85 L.Ed.2d 222 (1985). The resulting constitution managed to eliminate from the voting rolls all but 4,000 of the 181,000 African-Americans of voting age.
Bolden,
542 F.Supp. at 1063 & n. 10. In the 1950’s, in response to the Supreme Court’s ban on white primaries, the Alabama legislature passed a bill banning single-shot voting in at-large municipal elections.
Crenshaw County,
640 F.Supp. at 1356 . This bill was meant to weaken black voting strength by abolishing a tool minorities can use to concentrate voting strength behind a few candidates.
Id.
In the 1960’s, the state legislature required that all state, county, and municipal at-large elections be held using numbered places in order to reduce black voting strength.
Id.
at 1357 . Alabama has a majority-vote requirement in primaries. Ala.Code § 17-16-36 (Supp. 1994). The combination of numbered posts and a majority vote requirement can hinder minority political participation.
See Baldwin County Bd. of Educ.,
686 F.Supp. at 1467;
Crenshaw County,
649 F.Supp. at 295 . The legislature also attempted to dilute black voting strength through racial gerrymandering.
Gomillion v. Lightfoot,
364 U.S. 339 , 81 S.Ct. 125 , 5 L.Ed.2d 110 (1960);
Sims v. Baggett,
247 F.Supp. 96, 108-09 (M.D.Ala.1965) (three-judge court) (per curiam). This racial discrimination has hindered African-Americans from participating in electing judges.
119
Further, appointments to the Alabama courts at all levels have historically been overwhelmingly white.
120
A review of the record in this case reflects that of the 26 appointees to appellate courts since 1968, only two have been black.
121
The historical evidence compellingly shows that official voting discrimination in Alabama has acted to impede the ability of blacks to participate in the democratic process. It also shows that the state has used voting practices and procedures meant to discriminate against the African-American community. In particular, blacks have been unable to fully participate in selecting appellate judges.
The court further finds that political campaigns in Alabama have been characterized by racial appeals. For example, in the 1982 Democratic primary for associate justice, Justice Adams’ white opponent ran an ad featuring pictures of himself and Justice Adams.
Evans,
785 F.Supp. at 1473 . The court also notes that, although not in the record, the 1994 Democratic primary for state auditor was characterized by the same type of racial appeal.
122
The sum of this racial discrimination has resulted in only one black person achieving statewide election. Justice Adams managed to achieve this feat with the advantage of incumbency. As recently as the 1994 primary, the black candidate Johnny Ford was
*1557
unable to obtain the Democratic nomination for state auditor. Not only are blacks being defeated for statewide office, but they are choosing not to even run because of the difficulty of success without the help of incumbency. The court finds that there has been little African-American success in statewide races.
The court concludes based on the evidence summarized above, that there is a strong basis in evidence that under the totality of the circumstances the current appellate judicial election system violates § 2. This conclusion is based particularly on the interaction of an at-large election system, including a majority-vote requirement in primaries and numbered posts, with racially polarized voting patterns. These factors have likely diluted the black vote, a situation which is exacerbated by past and present discrimination in voting and other areas. The state has a compelling interest in remedying this situation.
As discussed earlier, § 2 liability necessarily implies past and present discrimination in voting. However, aside from any strong basis in evidence of a specific § 2 violation— that is, evidence that satisfies the demanding requirements of the Voting Rights Act— there is still a strong basis in evidence of past and present voting discrimination by the state. The findings detailed above go beyond general societal discrimination. They present a strong basis in evidence that blacks have been and continue to be discriminated against in Alabama statewide elections, particularly statewide judicial elections. Therefore, regardless of whether a § 2 violation exists, the state has a strong basis in evidence to conclude that it must remedy past and present discrimination in voting.
2.
Narrowly Tailored
The court now examines whether the race-conscious relief in the proposed settlement is narrowly tailored to achieving the state’s interests in complying with § 2 and remedying past and present discrimination. The court follows the Supreme Court and the Eleventh Circuit in determining that there are four factors that must be analyzed to decide whether a remedy is narrowly tailored: “the necessity for the relief and the efficacy of alternative remedies; the flexibility and duration of the relief, including the availability of waiver provisions; the relationship of the numerical goals to the relevant labor market; and the impact of the relief on the rights of third parties.”
Paradise,
480 U.S. at 171 , 107 S.Ct. at 1066 ;
accord Seibels,
31 F.3d at 1568-69 ;
Peightal,
26 F.3d at 1557 ;
In re Birmingham Reverse Discrimination Employment Litig.,
20 F.3d 1525, 1545 (11th Cir.1994).
The Supreme Court has further recognized that deciding whether relief is appropriate to remedying racial discrimination is necessarily a balancing process left to the discretion of the district court within certain limits.
Paradise,
480 U.S. at 184 , 107 S.Ct. at 1073 .
See also Fullilove v. Klutznick,
448 U.S. 448, 508 , 100 S.Ct. 2758, 2790 , 65 L.Ed.2d 902 (1980) (opinion of Powell, J., concurring). This suggests that narrow tailoring is a
range
of what is acceptable, not one perfect plan. For this reason, the definition of narrowly tailored does not depend on the views of one judge. If it did, parties would be forced to find a solution that represents the ideal of the court before which litigation is occurring. This situation would create an impossible dilemma for parties on appeal and in future litigation. Different courts will always have different opinions on what is the most narrowly tailored option.
123
The important consideration is not whether the type of race-conscious relief fashioned by the parties is the best, an inherently subjective determination, but whether it comes within a range of acceptable solutions, a much more objective test. Few judges will
*1558
agree on what plan’s details are best, but many will agree on whether a plan is acceptable. With this is mind, the court examines the four factors necessary to determine whether the proposed final judgment is narrowly tailored.
a.
Necessity and Alternative Remedies
Based on the strong evidence of a § 2 violation and past and present discrimination, it was necessary for the state to find some remedy. The court begins by looking at whether the state considered race-neutral remedies before deciding on the proposed settlement.
Croson,
488 U.S. at 507 , 109 S.Ct. at 729 (majority opinion);
see also Seibels,
31 F.3d at 1571 (exhaustion of every alternative not necessary, but must be serious examination of race-neutral measures).
In the area of voting, race-neutral measures are few and far between. The primary race-neutral measure considered in this case is cumulative voting. In a cumulative voting system, all candidates stand for election at the same time. Voters are allowed multiple votes, which they can distribute among the candidates. This system allows African-Americans to cast all of their votes for one candidate, thereby enhancing the opportunity to elect a minority-preferred candidate.
See Chilton County Bd. of Educ.,
699 F.Supp. at 872, 874-75 (describing cumulative voting system). There is no evidence in the record that cumulative voting would be effective. To the contrary, the evidence suggests that cumulative voting would not be a good method of electing appellate judges. Justice Adams opposed cumulative voting for the following reasons: (1) because it would probably entail having all judges up for reelection at the same time, which would endanger continuity; (2) because it would pit judges against each other, which could harm their collegiality; (3) because it would give fringe groups more power; and (4) because it might not work to remedy discrimination.
124
The court also notes that cumulative voting would require changes in state law. Ala.Code § 17-16-21 (1987) (requiring numbered places); Ala.Code § 17-16-36 (Supp.1994) (requiring majority vote in primaries). Although the court would not rule out imposing a cumulative voting remedy, there appear to be no serious advocates for it and no evidence that it would work.
The primary alternative to the proposed judgment is to implement a single-member district system for electing appellate judges. This solution, however, is not race-neutral. In order to comply with the Voting Rights Act and remedy discrimination, the state would have to take race into account in drawing the district lines. The districting remedy, therefore, is race-conscious.
De Grandy ,
— U.S. at -, 114 S.Ct. at 2661. The question remains whether it is the type of race-consciousness that the Supreme Court was trying to reach in establishing the strict scrutiny standard in
Shaw .
The Court expressly left open whether the mere act of creating majority-black districts gives rise to an equal protection claim.
Shaw ,
— U.S. at -, 113 S.Ct. at 2828. Some courts examining reapportionment legislation have already moved beyond the
Shaw
context of strangely shaped districts.
See Vera v. Richards,
861 F.Supp. 1304, 1331-36 (S.D.Tex.1994) (three-judge court);
Hays v. State of Louisiana,
839 F.Supp. 1188, 1195 (W.D.La.1993) (three-judge court),
vacated,
— U.S. -, 114 S.Ct. 2731 , 129 L.Ed.2d 853
affd on remand,
862 F.Supp. 119 (W.D.La.1994). Whether these decisions are c

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/1456333. Public record. Not legal advice.