# Martinez v. Bush

> District Court, S.D. Florida · December 3, 2002 · 234 F. Supp. 2d 1275

URL: https://www.frixlaw.com/law-library/cases/2513250

## Case

- **Full name:** Honorable Mayor Raul L. MARTINEZ, Bishop Victor T. Curry, Hattie D. Harden, Southwest Voter Registration Education Project, Inc., Robert Pope, James O. Brown, State Senator Betty Holzendorf, Dr. Carl Warren, State Representative Denise Lee, State Representative Gary Siplin, State Representative Matthew Meadows, State Representative, Dorothy Bendross-Mindingall, Rev. Richard P. Dunn, III, Enid Pinkney, Jacqui Colyer, Alexander Kelly, Maria B. Reckley, Councilman Philippe Derose, Unrepresented People’s Positive Action Council, Inc., Nury Molina, State Representative Cindy Lerner, Patrick Vilar, Lorenzo S. Ruiz, Jose A. Paez, and Lavita Holmes Plaintiffs v. John Ellis “Jeb” BUSH, Katherine Harris, Tom Feeney, John McKay, and Robert Butterworth Defendants; Peter R. Deutsch, Etc., Et Al. Intervenor-Plaintiffs v. John Ellis “Jeb” Bush, Et Al. Defendants; George Maurer Plaintiff v. State of Florida, Jeb Bush, Katherine Harris, Tom Feeney, and John McKay Defendants
- **Court:** District Court, S.D. Florida
- **Decided:** December 3, 2002
- **Citations:** 234 F. Supp. 2d 1275; 2002 U.S. Dist. LEXIS 23448; 2002 WL 31740366
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Tjoflat, Hinkle, Jordan
- **Cited by:** 16 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/2513250

## How later opinions describe it (automated extraction)

- noting that the BVAP of the 2002 version of District 5 was “only” 46.9%, but that the district “will afford black voters a reasonable opportunity to elect candidates of choice and probably will in fact perform for black candidates of choice”

## Opinion text

234 F.Supp.2d 1275 (2002)
Honorable Mayor Raul L. MARTINEZ, Bishop Victor T. Curry, Hattie D. Harden, Southwest Voter Registration Education Project, Inc., Robert Pope, James O. Brown, State Senator Betty Holzendorf, Dr. Carl Warren, State Representative Denise Lee, State Representative Gary Siplin, State Representative Matthew Meadows, State Representative, Dorothy Bendross-Mindingall, Rev. Richard P. Dunn, III, Enid Pinkney, Jacqui Colyer, Alexander Kelly, Maria B. Reckley, Councilman Philippe Derose, Unrepresented People's Positive Action Council, Inc., Nury Molina, State Representative Cindy Lerner, Patrick Vilar, Lorenzo S. Ruiz, Jose A. Paez, and Lavita Holmes Plaintiffs
v.
John Ellis "Jeb" BUSH, Katherine Harris, Tom Feeney, John McKay, and Robert Butterworth Defendants
Peter R. Deutsch, etc., et al. Intervenor-Plaintiffs
v.
John Ellis "Jeb" Bush, et al. Defendants
George Maurer Plaintiff
v.
State of Florida, Jeb Bush, Katherine Harris, Tom Feeney, and John McKay Defendants
No. 02-20244-CIV-JORDAN.
No. 02-10028-CIV-JORDAN.
United States District Court, S.D. Florida, Miami Division.
December 3, 2002.
*1276 *1277 Norman C. Powell, Miami, FL, Thomasina H. Williams, Miami, FL, J. Gerald Herbert, Alexandria, VA, Ephraim Roy Hess, Colleen Kathryn O'Loughlin, Ft. Lauderdale, FL, Ronald A. Kalain, Jeremy B. Bash, Goodwin Liu, Washington, DC, for plaintiffs.
Paul F. Hancock, Maxine S. Ryan, Deputy Atty. Gen., Office of Atty. Gen., Fort Lauderdale, FL, George Waas, Senior Assist. Atty. Gen., Office of Atty. Gen., Tallahassee, FL, for State of Florida.
Dean Colson, Roberto Martinez, Colson Hicks Eidson, Coral Gables, FL, Charles Canady, Tallahassee, FL, for Governor Jeb Bush.
Deborah K. Kearney, Tallahassee, FL, for Secretary of State.
Christopher Carver, Miami, FL, J. Thomas Cardwell, Orlando, FL, Miguel Angel De Grandy, Miami, FL, Jason Lawrence Unger, George N. Meros, Jr., Tallahassee, FL, Joseph W. Hatchett, Tallahassee, for Speaker Feeney.
Edward Joseph Pozzuoli, III, James A. Scott, Alexis M. Yarbrough, Fort Lauderdale, FL, Thomas Emerson Scott, Jr., Miami, FL, for president McKay.
George Maurer, Key West, FL, pro se.
*1278 Before TJOFLAT, Circuit Judge, and HINKLE and JORDAN, District Judges. [*]
MEMORANDUM OPINION
PER CURIAM
INTRODUCTION
Every ten years, after the census, the Florida legislature is required to redraw the State's congressional districts and the State Senate and House districts to adjust for population shifts. The 2000 census revealed that Florida's population grew by more than 3 million people during the 1990s. As a result, Florida was apportioned two additional representatives in the United States House of Representatives, and the Florida legislature, which was controlled by a substantial Republican majority in each house, adopted a redistricting plan for the State's Congressional districts to adjust for the shifts in population and the increase in the number of representatives. On March 27, 2002, Governor John Ellis "Jeb" Bush signed into law House Bill 1993, which established the lines for Florida's 25 congressional districts.
Following the 2000 census, the Republican-controlled Florida legislature also adopted redistricting plans for the State Senate and House districts to adjust for the population changes since the 1990 census. On March 22, 2002, the Florida legislature passed House Joint Resolution 1987, which established the lines for Florida's 40 Senate districts and 120 House districts.
Following the passage of the redistricting legislation, plaintiffs and intervenors brought this action for declaratory and injunctive relief against the Speaker of the Florida House of Representatives, the President of the Florida Senate, the Governor of Florida, the Florida Secretary of State, and the Florida Attorney General. [1] Plaintiffs alleged (1) that the process used to arrive at the redistricting plan was inadequate under the Equal Protection Clause of the Fourteenth Amendment and Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d, because minorities were not given sufficient opportunity to participate; (2) that the reapportionment plan led to the dilution of black [2] voting power [3] *1279 in violation of section 2 of the Voting Rights Act of 1965, 42 U.S.C. § 1973 ; and (3) that the Florida legislature politically gerrymandered the congressional districts to favor Republicans, thereby violating the rights of Democratic voters guaranteed by the Equal Protection Clause of the Fourteenth Amendment. [4] We address each of these claims in turn. [5]
In part I, we address the plaintiffs' "process" claims. First, we present detailed findings of fact regarding the redistricting process and the opportunity afforded Florida citizens to participate in that process. We conclude that plaintiffs have failed to present sufficient evidence to show that defendants were motivated by discrimination against blacks or Hispanics in deciding what redistricting software or allocation method to use, where to hold public hearings, when to hold public hearings, what type of notice to provide, or whether to consider input from Florida citizens and Democratic legislators in drawing the redistricting plans. Absent such a showing, plaintiffs' process claims must fail.
In part II, we address plaintiffs' vote dilution claims. We present detailed findings *1280 of fact comparing voting behavior by race in performing black districts existing before and after the redistricting process at issue in this litigation. We conclude that in the districts under challenge in this litigation, black candidates of choice [6] will continue to prevail in most elections. We outline the three Gingles preconditions for prevailing on a claim of vote dilution under section 2 of the Voting Rights Act: (1) geographic compactness, (2) political cohesiveness, and (3) bloc voting on behalf of the majority group. Thornburg v. Gingles, 478 U.S. 30, 50-51 , 106 S.Ct. 2752, 2766-67 , 92 L.Ed.2d 25 (1986). Because it is undisputed that these preconditions are met, section 2 clearly required the drawing of at least some number of districts likely to perform for black candidates of choice. We conclude that the legislature satisfied its section 2 obligation by drawing performing black districts which are, in fact, likely to perform for black candidates of choice. Therefore, under the redistricting plans, black voters will not 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. § 1973 (b)—i.e., black voting power has not been diluted— and plaintiffs have failed to establish a violation of section 2 of the Voting Rights Act.
Finally, in part III, we address plaintiffs' political gerrymandering claims. We begin by holding that the three Gingles preconditions apply to equal protection claims in the political gerrymandering context just as they do in the racial vote dilution context. Next, we address the two-prong Bandemer test for unlawful political gerrymandering—legislative intent to discriminate and discriminatory effects. Davis v. Bandemer, 478 U.S. 109, 127 , 106 S.Ct. 2797, 2808 , 92 L.Ed.2d 85 (1986). Although we conclude that the Florida legislature intended to draw the congressional districts in a way that favors Republicans, we conclude that plaintiffs have failed to demonstrate discriminatory effects that are serious enough to warrant federal court intervention. Plaintiffs failed to establish the preconditions of geographic compactness, political cohesiveness, and bloc voting on behalf of the majority group. Plaintiffs also failed to establish that, under a totality of the circumstances, the redistricting plan gives Democrats "less opportunity to participate in the political process and to elect candidates of their choice." Id. at 131 , 106 S.Ct. at 2809. Thus, this final claim too must fail.
I. THE "PROCESS" CLAIMS
The Martinez plaintiffs alleged in count I of their second amended complaint that the process, practice, and procedure adopted and employed by Florida's legislature in conducting redistricting hearings and adopting the state's congressional and legislative plans violated the Equal Protection Clause of the Fourteenth Amendment and 42 U.S.C. § 1983 . They also alleged a violation of Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d, based on the same conduct. We refer to these claims as the "process" claims. [7] Because, as we explain below, these claims all require a showing of intentional discrimination, and because the question of discrimination is a question of fact, and not an issue of law, *1281 we briefly summarize the legal framework which governs the "process" claims.
A. LEGAL FRAMEWORK
The central purpose of the Fourteenth Amendment, as articulated by cases like Washington v. Davis, 426 U.S. 229, 239 , 96 S.Ct. 2040, 2047 , 48 L.Ed.2d 597 (1976), is "racial neutrality in governmental decision making." Clark v. Putnam County, 293 F.3d 1261, 1266 (11th Cir.2002). "[A]s a general rule, `[d]istinctions between citizens solely because of their ancestry are by their very nature odious to a free people whose institutions are founded upon a doctrine of equality.'" Oyama v. California, 332 U.S. 633, 646 , 68 S.Ct. 269, 275 , 92 L.Ed. 249 (1948) (quoting Hirabayashi v. United States, 320 U.S. 81, 100 , 63 S.Ct. 1375, 1385 , 87 L.Ed. 1774 (1943)).
To prevail on their equal protection claim relating to the redistricting hearing and adoption processes, the Martinez plaintiffs must show, by a preponderance of the evidence, that the Florida legislature acted with racially discriminatory intent. See Washington, 426 U.S. at 240 , 96 S.Ct. at 2048 (noting that school desegregation cases have "adhered to the basic equal protection principle that the invidious quality of a law claimed to be racially discriminatory must ultimately be traced to a racially discriminatory purpose"); Village of Arlington Heights v. Metropolitan House. Dev. Corp., 429 U.S. 252, 265 , 97 S.Ct. 555, 563 , 50 L.Ed.2d 450 (1977) ("Proof of racially discriminatory intent or purpose is required to show a violation of the Equal Protection Clause."); cf. Crawford-El v. Britton, 523 U.S. 574, 592-94 , 118 S.Ct. 1584, 1594 , 140 L.Ed.2d 759 (1998) (rejecting argument that where state of mind is an element of a constitutional claim, mens rea must be shown by clear and convincing evidence). Although the Martinez plaintiffs need not establish that a racially discriminatory motive was the sole or primary purpose, they have to establish that it was a motivating factor of the challenged process. See Village of Arlington Heights, 429 U.S. at 265 , 97 S.Ct. at 563 (noting that a plaintiff need not prove that a "challenged action rested solely on racially discriminatory purposes"); Garza v. County of Los Angeles, 918 F.2d 763, 771 (9th Cir.1990) (holding that the redistricting plan of county supervisor districts violated the Equal Protection Clause where the supervisors who drew the districts were motivated by both an intent to fragment the Hispanic voting population and an intent to preserve incumbencies, because "discrimination need not be the sole goal in order to be unlawful") (citing Arlington Heights, 429 U.S. at 265 , 97 S.Ct. at 555 ). The fact that biased state decision makers may have had other motives that were not discriminatory does not make their conduct any less intentional. See, e.g., Barnett v. Daley, 32 F.3d 1196, 1199 (7th Cir.1994) (holding that "the fact that discrimination may have an ulterior motive that is not discriminatory does not make it any the less intentional" for equal protection purposes in a challenge to a redistricting plan of city alderman wards). Once the Martinez plaintiffs establish a prima facie case of discrimination, the defendants may only overcome the presumption of unconstitutional action by showing that permissibly neutral criteria and procedures produced the discriminatory result. See Washington, 426 U.S. at 241 , 96 S.Ct. at 2048 .
An invidious discriminatory racial purpose need not be express, and "may often be inferred from the totality of the relevant facts including the fact, if it is true, that the law bears more heavily on one race or another." Washington, 426 U.S. at 241-42 , 96 S.Ct. at 2048-49 . The factors that may be probative of a discriminatory *1282 purpose or intent include: (i) the impact of the official action; (ii) the historical background of the decision, particularly if it reveals a series of official actions taken for invidious purposes; (iii) a specific sequence of events leading up to the challenged decision; (iv) departures from normal procedural sequences; and (v) substantive departures from factors usually considered important by the decision maker and which strongly favor a decision contrary to the one reached. See Village of Arlington Heights, 429 U.S. at 266-67 , 97 S.Ct. at 564-65 .
Like the equal protection claim, the Title VI and section 1983 claims are dependent on a showing of intentional discrimination. First, Title VI provides no greater protection than the Equal Protection Clause. See United States v. Fordice, 505 U.S. 717 , 732 n. 7, 112 S.Ct. 2727 , 2737 n. 7, 120 L.Ed.2d 575 (1992) ("Our cases make clear and the parties do not disagree that the reach of Title VI's protection extends no further than the Fourteenth Amendment."); Elston v. Talladega County Bd. of Educ., 997 F.2d 1394 , 1405-06 n. 11 (11th Cir.1993) ("Since Title VI itself provides no more protection than the Equal Protection Clause—both provisions bar only intentional discrimination—we will not engage in a separate discussion of the Title VI statutory analysis, as such an inquiry would duplicate our equal protection analysis."). Second, it is well settled that a section 1983 plaintiff must show a violation of a right secured by the Constitution or federal law in order to prevail. See, e.g., Collins v. City of Harker Heights, 503 U.S. 115, 120-22 , 112 S.Ct. 1061, 1066-67 , 117 L.Ed.2d 261 (1992); Baker v. McCollan, 443 U.S. 137, 140 , 99 S.Ct. 2689, 2692 , 61 L.Ed.2d 433 (1979); Monteiro v. Tempe Union High School Dist., 158 F.3d 1022 , 1026 (9th Cir.1998). A "finding of intentional discrimination is a finding of fact" subject to clearly erroneous review. Anderson v. City of Bessemer City, 470 U.S. 564, 573 , 105 S.Ct. 1504, 1511 , 84 L.Ed.2d 518 (1985); see also, e.g., Easley v. Cromartie, 532 U.S. 234 , 241-58, 121 S.Ct. 1452 , 1458-66, 149 L.Ed.2d 430 (2001) (reviewing, under the clearly erroneous standard, finding of three-judge court that congressional redistricting plan was racially motivated). We therefore proceed to make our subsidiary findings of fact and our ultimate findings on the issue of intentional discrimination.
B. PRELIMINARY FINDINGS OF FACT FOR THE "PROCESS" CLAIMS
1. THE PARTIES
1. Raul L. Martinez is an Hispanic resident and the Mayor of Hialeah, Florida. Mr. Martinez is a voter registered as a Democrat and a resident of Congressional District ("CD") 21, Florida Senate District ("SD") 39, and Florida House District ("HD") 110.
2. George Maurer is a resident of Monroe County, Florida, and a resident of former CD 20 and new CD 18, HD 120, and SD 40. Mr. Maurer is a registered Democrat, is presently the Chair of the Lower Keys & Key West Democratic Club, the Vice-Chair of the 20th Congressional District Democratic Organization, a Monroe County Democratic State Committeeman, and a member of the Florida State Democratic Central & Executive Committees.
3. Victor T. Curry is a black resident of Miami-Dade County, Florida. Mr. Curry is a voter registered as a Democrat and a resident of CD 17 and HD 109.
4. Hattie D. Harden is a black resident of Broward County, Florida. Ms. Harden is a voter registered as a Democrat and resident of former and new CD 23.
*1283 5. The Southwest Voter Registration Education Project, Inc. ("SVREP") is a national, non-partisan organization headquartered in San Antonio, Texas, which supports voter registration throughout the country. SVREP has an office in Miami, Florida, but does not represent individuals or have individual members. Alvaro Fernandez presently serves as Executive Director of SVREP for the State of Florida, and has been involved with SVREP since September of 2000. Mr. Fernandez, a Cuban-American, has lived in Miami, Florida, for approximately the past 40 years. Prior to his work with SVREP, Mr. Fernandez was Special Assistant to Mayor Martinez of the City of Hialeah, has been a political candidate for the Florida House of Representatives, and has been a candidate for the position of county commissioner. SVREP maintains a database containing the names of many of those with whom it has worked over the years and regularly stays in contact with the persons listed therein through the regular circulation of letters, e-mails, and newsletters. The Florida Chapter of SVREP has been active in various communities throughout the State of Florida, including Miami-Dade County, Broward County, Palm Beach County, and several areas surrounding the City of Orlando. The organization has focused its attention on these areas of the State, in part, because of the surge in Hispanic residents therein. From the time of its inception to the present date, the Florida Chapter of SVREP has been successful in registering between 5,000 and 10,000 new voters in the State of Florida. On behalf of SVREP, Mr. Fernandez attended a number of the public redistricting hearings throughout the state (e.g., Tallahassee, Tampa, Orlando, Palm Beach, and Miami (two)).
6. Robert Poe is the Chairman of the Florida Democratic Party and a registered Democrat.
7. James O. Brown is a black resident of Duval County, Florida. Mr. Brown is a voter registered as a Democrat and a resident of former and new CD 3, former SD 2 (renumbered SD 1 in the new legislative redistricting plan), and former and new HD 15.
8. State Senator Betty Holzendorf is a black resident of Duval County, Florida. Senator Holzendorf is a voter registered as a Democrat and a resident of former and new CD 3 and SD 2 (renumbered SD 1 in the new legislative redistricting plan).
9. Carl Warren is a black resident of Hillsborough County, Florida. Mr. Warren is a voter and a resident of SD 21 (renumbered SD 18 in the new legislative redistricting plan).
10. State Representative E. Denise Lee has been a candidate for HD 15 and may be a candidate for SD 1.
11. State Representative Gary Siplin is a black resident of Orange County, Florida. Representative Siplin is a voter registered as a Democrat and a resident of former and new CD 3 and former and new HD 39.
12. State Representative Matthew Meadows is a black resident of Broward County, Florida. Representative Meadows is a voter registered as a Democrat and a resident of former and new HD 94.
13. State Representative Dorothy Bendross-Mindingall is a black resident of Miami-Dade County, Florida. Representative Bendross-Mindingall is a voter registered as a Democrat and a resident of former and new CD 17 and former and new HD 109.
14. Richard P. Dunn, III, is a black resident of Miami-Dade County, Florida. Mr. Dunn is a voter registered as a Democrat and a resident of former and new CD 3 and HD 109.
*1284 15. Enid Pinkney is a black resident of Miami-Dade County, Florida. Ms. Pinkney is a voter registered as a Democrat and a resident of former and new CD 3 and HD 109.
16. Jacqui Coyler is a black resident of Miami-Dade County, Florida. Ms. Coyler is a voter registered as a Democrat and a resident of former and new CD 3 and HD 109.
17. The Unrepresented People's Positive Action Council, Inc., ("UPPAC") is a not-for-profit Florida corporation headquartered in Miami-Dade County, Florida. UPPAC's goals include encouraging participation by members of the black community in the political process.
18. Alexander Kelly is a black resident of Miami-Dade County, Florida. Mr. Kelly is a voter registered as a Democrat and a resident of former and new CD 3 and HD 109. Mr. Kelly is a member of UPPAC.
19. Maria B. Reckley is a black resident of Miami-Dade County, Florida. Ms. Reckley is a voter registered as a Democrat and a resident of former and new CD 3 and HD 103. Ms. Reckley is a member of UPPAC.
20. Philippe Derose is a black resident of Miami-Dade County, Florida. Mr. Derose is a voter registered as a Democrat and a resident of former and new CD 3 and HD 108.
21. Nury Molina is an Hispanic resident of Miami-Dade County, Florida. Ms. Molina is a voter registered as a Democrat and a resident of CD 18 and HD 119.
22. State Representative Cindy Lerner is a resident of Miami-Dade County, Florida. Representative Lerner is a voter registered as a Democrat, a resident of former HD 119, and the representative in Florida's House of Representatives for former HD 119. Representative Lerner was elected to the Florida House of Representatives during the 2000 election year, beating her Republican opponent by a margin of about 700 votes.
23. Patrick Vilar is an Hispanic resident of Miami-Dade County, Florida. Mr. Vilar is a voter registered as a Democrat and a Democratic candidate for new HD 116.
24. Lorenzo S. Ruiz is an Hispanic resident of Miami-Dade County, Florida. Mr. Ruiz is a voter registered as a Democrat and a resident of CD 21.
25. Jose A. Paez is an Hispanic resident of Miami-Dade County, Florida. Mr. Paez is a voter registered as a Democrat and a resident of CD 18 and HD 107.
26. Lavita Holmes is a black resident of Hendry County, Florida. Ms. Holmes is a voter registered as a Democrat and a resident of former and new CD 23.
27. Congressman Peter R. Deutsch is a resident of former and new CD 20 and is a registered Democrat. Representative Deutsch is a member of the United States House of Representatives for former CD 20, and has served in the House since 1992. Immediately prior to his service in the House, Representative Deutsch was a 10-year member of the Florida House of Representatives. Throughout his years as a legislator, Representative Deutsch has had extensive experience in issues relating to redistricting and has even served as chairman of the Congressional Reapportionment Committee in the Florida House of Representatives.
28. Ida Scott is a black resident of Hallandale, Florida. Ms. Scott is a voter registered as a Democrat and a resident of former CD 23 and new CD 17, HD 101, and SD 29.
29. Josh Brown is a black resident of Hallandale, Florida. Mr. Brown is a voter *1285 registered as a Democrat and a resident of former CD 23 and new CD 17, HD 99, and SD 29.
30. Bobbi Grace is a black resident of Dania, Florida. Ms. Grace is a voter registered as a Democrat and a resident of former CD 23 and new CD 20, HD 99, and SD 29.
31. Wayne Johnson is a resident of Lauderhill, Florida. Mr. Johnson is a voter registered as a Democrat and a resident of former CD 19 and new CD 20, HD 97, and SD 32.
32. Isadore Nachimson is a resident of Century Village, Pembroke Pines, Florida. Ms. Nachimson is a voter registered as a Democrat and a resident of former CD 20 and new CD 23, HD 101, and SD 32.
33. Ruby Lobben is a black resident of Lauderhill, Florida. Ms. Lobben is a voter registered as a Democrat and a resident of former CD 19 and new CD 23, HD 101, and SD 32.
34. William Totin is a resident of Lauderhill, Florida. Mr. Totin is a voter registered as a Democrat and a resident of former CD 20 and new CD 23, HD 97, and SD 33.
35. Natalie Mayeri is a resident of Century Village, Pembroke Pines, Florida. Ms. Mayeri is a voter registered as a Democrat and a resident of former CD 20 and new CD 23, HD 101, and SD 32.
36. Jose I. Perez is a resident of Pembroke Pines, Florida. Mr. Perez is a voter registered as a Democrat and a resident of former CD 20 and new CD 21, HD 101, and SD 32.
37. Joseph F. Garcia is a resident of Surfside, Florida. Mr. Garcia is a voter registered as a Democrat and a resident of former CD 22 and new CD 18, HD 106, and SD 38.
38. Jacqueline Rubin is a resident of Surfside, Florida. Ms. Rubin is a voter registered as a Democrat and a resident of former CD 22 and new CD 18, HD 106, and SD 38.
39. Alex G. Fekete is the Mayor of Pembroke Pines, Florida. Mayor Fekete also serves on the Board of Directors for the Florida League of Cities and the National League of Cities and is a member of the U.S. Conference of Mayors.
40. The City of Pembroke Pines is located in Broward County, Florida, and has experienced very fast growth in the last decade, going from 65,000 residents in 1990 to over 140,000 today. Pembroke Pines was entirely within the former CD 20, but will now be in parts of four new CDs (new CDs 17, 20, 21, and 23).
41. Claudia Davenport is a voter registered as a Democrat. Ms. Davenport resides in Everglades, Collier County, Florida. Ms. Davenport resides in former CD 14, HD 102, and SD 29. Ms. Davenport attended and spoke at the public redistricting hearing at Naples High School on September 24, 2001, and communicated with the Redistricting Committee via e-mail.
42. Gerald R. Rizzo is a white, non-Hispanic resident of St. Petersburg, Pinellas County, Florida. Mr. Rizzo is a voter registered as a Democrat. Mr. Rizzo resides in former CD 10 and new CD 11.
43. John Ellis Bush is the Republican Governor of the State of Florida.
44. Tom Feeney is the Republican Speaker of the Florida House of Representatives.
45. John McKay is the Republican President of the Florida Senate.
46. Katherine Harris is the former Republican Secretary of State for the State of Florida.
*1286 47. Robert Butterworth is the former Democratic Attorney General for the State of Florida.
2. THE 2000 CENSUS
48. Florida's population grew by more than 3 million people during the 1990s. As a result of the 2000 census, Florida was apportioned two additional representatives in the United States House of Representatives, bringing the total to 25. The total population of the State of Florida in 1990 was 12,937,926. The 2000 population was 15,982,378, which represents an increase of 3,044,452 persons or 23.52% over the 10-year period.
49. The 2000 census documented that some areas of Florida had grown more rapidly than others.
3. THE LEGISLATURE'S REDISTRICTING PLANS
50. On March 22, 2002, the Florida legislature, which is controlled by Republicans in both the State House and State Senate, passed House Joint Resolution 1987. This state legislative plan established the lines for Florida's 120 House districts and 40 Senate districts.
51. The maps and statistics for the state legislative plan are set forth in Speaker's Exhibit 162, "Plan H062H001 Census and Election Statistics (House)"; Speaker's Exhibit 79, attached CDs L1 (House Districts) & L2 (Senate Districts); Speaker's Exhibit 135, "Notebook of District-by-District Analyses of House Districts 1-120"; and Martinez Exhibits 77-A, 77-B, & 77-C.
52. On March 27, 2002, Governor Bush signed into law House Bill 1993. This redistricting plan established the lines for Florida's 25 congressional districts.
53. The maps and statistics for the enacted congressional plan are set forth in Speaker's Exhibits 68 & 69, "Maps, Statistics, FREDS file of Plan S19C0017 and Individual Districts in Plan."
54. The districts in the congressional plan have populations of either 639,295 or 639,296 persons.
4. PRE-CLEARANCE UNDER SECTION 5 OF THE VOTING RIGHTS ACT
55. By letter dated April 29, 2002, and pursuant to section 5 of the Voting Rights Act, 42 U.S.C. § 1973c, Governor Bush, Speaker Feeney, and President McKay submitted the congressional plan and Speaker Feeney, and President McKay submitted the state legislative plan to the United States Department of Justice for pre-clearance.
56. On May 3, 2002, the Florida Supreme Court issued its opinion validating the state legislative districts under article III, section 16 of the Florida Constitution and following limited review of applicable principles arising under the United States Constitution. See In re Constitutionality of House Joint Resolution 1987, 817 So.2d 819 (Fla.2002). In its opinion, the Florida Supreme Court found that "the maximum percentage deviation between the largest and smallest number of people per [House district] (statistical overall range) is 2.79%." Id. at 825 . In contrast, "the maximum percentage deviation between the largest and smallest number of people per [Senate district] (statistical overall range) is 0.93%." Id. at 826 . The Florida Supreme Court thus held that "the Legislature has achieved a mathematical preciseness in the districts that complies with the equal protection requirements of both the Florida and United States Constitutions." Id. The Florida Supreme Court also said, among other things, that due to time constraints it was not able to rule on fact-intensive federal challenges to the state legislative districts, including claims of political *1287 gerrymandering under the Fourteenth Amendment's Equal Protection Clause and claims based on section 2 of the Voting Rights Act, 42 U.S.C. § 1973 . See id. at 828-29 . Such challenges, the Florida Supreme Court said, would have to be brought in a court of "competent jurisdiction." Id. at 829 . [8]
57. On May 14, 2002, Attorney General Butterworth filed suit in the United States District Court for the District of Columbia, initially asking for a declaration regarding the validity of the various redistricting plans under section 5 of the Voting Rights Act, and then amending his complaint to request a declaration of validity. See Florida v. United States, Case No. 1:02 CV 00941 (D.D.C.2002) (the "D.C. action"). A three-judge court was then impaneled in the District of Columbia pursuant to 28 U.S.C. § 2284 . [9]
58. On May 15, 2002, certain Martinez plaintiffs—Mr. Warren, Ms. Holmes, and SVREP—along with Representative Alcee Hastings and the UNO Federation for Community Services, Inc., moved to intervene as plaintiffs in the D.C. action. These Martinez plaintiffs alleged, in part, that the section 5 submissions by Governor Bush, Speaker Feeney, and President McKay were improper because they were not made by Attorney General Butterworth. [10] On May 28, 2002, the three-judge court in the D.C. action granted the motion to intervene, but aligned the intervenors as defendants.
59. On May 24, 2002, the Deutsch intervenors —Representative Deutsch, Ms. Grace, Mr. Totin, Mr. Johnson, Ms. Lobben, Ms. Mayeri, Ms. Nachimson, and Mr. Rizzo—moved to intervene in the D.C. action as defendants.
60. On May 29, 2002, Governor Bush, Speaker Feeney, and President McKay moved to intervene in the D.C. action as plaintiffs.
61. In the D.C. action, the Department of Justice took the position that the pre-clearance submission had been properly made by Governor Bush, Speaker Feeney, and President McKay.
62. On June 4, 2002, the three-judge court granted the motions to intervene filed by Governor Bush, Speaker Feeney, and President McKay and by the Deutsch intervenors, aligning the Governor, the Speaker, and the President as plaintiffs and the Deutsch intervenors as defendants.
63. On June 7, 2002, the United States Department of Justice pre-cleared Florida's congressional redistricting plan, stating by letter that the Attorney General "d[id] not interpose any objection" to that plan. By directing the letter to Governor Bush, Speaker Feeney, and President McKay, the Department of Justice apparently concluded that the submission of the congressional plan by these Florida officials did not constitute a change in voting procedure that had to be pre-cleared pursuant to section 5.
64. On June 7, 2002, the Governor, the Speaker, and the President moved on an emergency basis to dismiss the D.C. action as moot.
65. On June 10, 2002, the United States also moved to dismiss the D.C. action as moot.
*1288 66. On June 13, 2002, the three-judge court in the D.C. action granted the motions to dismiss filed by the United States, Governor Bush, Speaker Feeney, and President McKay, and dismissed all pending claims in that action as moot.
67. By virtue of the dismissal, the three-judge court in the D.C. action rejected the claim raised by the intervening Martinez plaintiffs that the submission of the congressional plan by Governor Bush, Speaker Feeney, and President McKay constituted a change in voting procedure that had to be pre-cleared pursuant to section 5. This dismissal therefore includes the claim raised in count XV of the Martinez plaintiffs' second amended complaint, and constitutes an adjudication of the issue of whether the submission by Governor Bush, Speaker Feeney, and President McKay was proper under section 5 and a finding that their submission was proper. [11]
68. On June 20, 2002, the Department of Justice pre-cleared Florida's State Senate redistricting plan.
69. On July 1, 2002, the Department of Justice, by letter, interposed an objection to Florida's State House plan, concluding that proposed HD 101 was retrogressive within the meaning of section 5 of the Voting Rights Act. Due to this objection, we held an emergency evidentiary hearing and issued an order adopting an interim State House plan that had been proposed by Speaker Feeney. See Order Granting Speaker's Motion for Emergency Relief and Adopting Interim Remedial State House Plan [D.E. 315]. We directed Secretary Harris to conduct the 2002 elections under this interim remedial plan. [12]
5. THE REDISTRICTING PROCESS
70. Florida began the redistricting process in 2001. The legislature prepared the technological groundwork for redistricting, held a series of 24 public hearings throughout Florida, and then enacted redistricting legislation. During the 1991-1992 redistricting process, 33 public hearings and at least one statewide teleconference were held throughout Florida.
71. Both the House and Senate established redistricting websites. These websites made the following information available to the public:
• The names and districts of committee members for each of the redistricting committees.
• Every plan submitted by any member of the legislature.
• A committee and council meeting time-line, along with transcripts and meeting packets that were utilized in any of the meetings.
• A public hearings timeline, with information about the specific locations and times of each of the public hearings to be held.
• A public hearings archive including downloadable information following each of the public hearings.
• The constitutional requirements for redistricting Florida's legislative districts under the Florida Constitution.
*1289 • News and press releases regarding the redistricting process.
• A "Frequently Asked Questions" ("FAQ") page with information regarding the 2000 census data.
• Florida census data and a 54-page slide presentation providing an overview of Florida census data and trends.
• Information on the FREDS 2000 [13] software, including: an order form, installation instructions, a dataset with Florida redistricting information to be integrated for use with the software, a downloadable update to the software, and a page dedicated to providing tutorial and other information to assist users of the software.
• Information on how to contact the House and Senate Redistricting Committees and their staffs.
72. The times and dates of the public hearings were advertised in newspapers, as well as listed on the redistricting websites, though the timing of the announcements posted on the websites was not coordinated with the timing of the notices advertised in the media. The newspapers in which the public hearings were advertised are the Tallahassee Democrat, Florida Times-Union, Orlando Sentinel, Daytona News-Journal, Tampa Tribune, The Ledger, The Stuart News, Palm Beach Post, Sarasota Herald Tribune, Naples Daily News, Ft. Myers News Press, Miami Herald/El Nuevo Herald, Ft. Lauderdale Sun Sentinel, Pensacola News Journal, and the Gainesville Sun. Most of the newspaper advertisements were published only 2-3 days before the scheduled public hearing.
73. The websites provided hearing times and locations, as well as the protocol and procedure for the hearings. The websites encouraged persons unable to attend the meetings to submit written testimony and plans to the House or Senate Redistricting Committee, and also provided contact information so that members of the public could contact the committees either before or after the public hearings.
74. The legislative leadership did not conduct any public meetings, workshops, or committee meetings to discuss the 2001 public hearing process or the selection of the hearing sites before the schedule was presented to the public and Democratic members of the legislature.
75. The public hearings took place between July 12, 2001, and October 16, 2001, in Tallahassee (July 12 from 10:00 a.m. to 1:15 p.m.), Jacksonville (August 6 from 6:00 p.m. to 8:50 p.m.), Ocala (August 7 from 1:30 p.m. to 4:30 p.m.), Orlando (August 20 from 6:00 p.m. to 11:05 p.m.), Daytona Beach (August 21 from 10:00 a.m. to 12:45 p.m.), Tampa (August 27 from 9:30 a.m. to 1:35 p.m.), Clearwater (August 27 from 5:00 p.m. to 7:05 p.m.), Lakeland (August 28 from 1:30 p.m. to 3:00 p.m.), Vero Beach (September 5 from 9:00 a.m. to 11:20 a.m.), West Palm Beach (September 5 from 4:00 p.m. to 6:40 p.m.), Delray Beach (September 6 from 6:00 p.m. to 9:10 p.m.), Wachula (September 20 from 2:00 p.m. to 3:00 p.m.), Sarasota (September 21 from 9:00 a.m. to 11:00 a.m.), LaBelle (September 24 at 10:00 a.m.), Naples (September 24 from 6:00 p.m. to 8:45 p.m.), Ft. Myers (September 25 at 1:00 p.m.), Pembroke Pines (October 1 at 9:00 a.m.), Ft. Lauderdale (October 1 at 5:00 p.m.), Miami (October 2 at 4:00 p.m.), Miami (October 3 at 3:00 p.m.), Key Largo (October 3 at 10:00 a.m.), Pensacola (October 15 at 6:00 p.m.), Panama City (October 16 at 11:00 a.m.), and Gainesville (October 16 at 6:00 p.m.). Some citizens, including some minority citizens, were unaware of the hearings *1290 and/or were unable to attend the hearings in their respective areas because of the time of the hearings. There were no official interpreters at the hearings, and no announcements about interpreters were posted prior to the hearings, but some bilingual legislative staff members were available at the sign-in table at some of the hearings (e.g., the hearings in Miami) to translate in Spanish or Creole if someone requested assistance.
76. After several requests of State Senator Debbie Wasserman-Schultz—a Democratic member of the legislature—a second public hearing was conducted in Broward County. The Republican leadership, however, rejected the requests of several Democratic legislators that additional hearings be held in the southern portion of Miami-Dade County.
77. Only one public hearing was held in a predominantly black community in Miami-Dade County. This hearing was held at Miami Central High School on October 2, 2001, and began at 4:00 p.m.
78. Only one public hearing, convened on October 3, 2001, at 3:00 p.m. at Florida International University, was held in a predominantly Hispanic community in Miami-Dade County. Through Mayor Martinez, the City of Hialeah—which is predominantly Hispanic—offered to host a public hearing free of charge, but no hearing was held in the city.
79. Those public hearings that were held after 5:00 p.m. had the greatest participation of blacks and Hispanics.
80. Approximately 4,500 people attended the 24 public hearings in 2001, three times the number of people that attended the 33 redistricting hearings in 1991-1992. Over 1,000 people spoke at the 2001 public hearings, in contrast to the fewer than 400 people who spoke at the 1992 hearings. In the 1991-1992 cycle, approximately 17 legislators attended each meeting; in the 2001-2002 cycle, approximately 26 legislators attended.
81. The 2001 hearings consisted of an overview of the legal parameters of redistricting, a brief census overview outlining demographic facts in summary form, and public testimony, which included opportunities for legislators to ask clarifying questions. The public, however, was not permitted to pose questions to the legislators, and the legislators were not allowed to ask the public substantive questions.
82. The public hearing transcripts indicate that the appropriate protocol for the hearings was followed, and that such protocol was explained to the public prior to the hearings.
83 Following the public hearings, the redistricting committee websites made the following information available for downloading by the general public (and, of course, any legislators): (1) either an audio or video recording of the hearing; (2) a written transcript of the hearing; (3) the slide presentation made at the hearing; and (4) any public documents made available at the hearings and submissions (e.g., correspondence) from the public.
84. In addition to the public hearings, hundreds of letters and e-mail communications were received from the public.
6. THE FREDS REDISTRICTING SOFTWARE
85. As part of its redistricting efforts, the Florida legislature developed the Florida Redistricting System or "FREDS" software, starting the development process in late 1997 or the beginning of 1998. Development of FREDS was a joint House and Senate project coordinated by John Guthrie, Florida Senate Staff Director for Systems Operations and Training, and Todd Thomson, Florida House Staff Director *1291 of the House Redistricting Committee.
86. Mr. Guthrie is a career public servant who has worked for the Florida legislature for 14 years. For the past 13 years, Mr. Guthrie has worked for the Florida Senate, under both Democratic and Republican Senate leadership. Additionally, Mr. Guthrie worked with the Martinez plaintiffs' counsel, Norman Powell, Esq., on behalf of the Democratic majority in the 1991-1992 Florida redistricting, and worked with the Martinez plaintiffs' expert, Dr. Alan Lichtman, in defending Florida's redistricting plans in 1994-1996.
87. In 2001-2002, members of the legislature and the public had access to redistricting information and technology through FREDS. No other state in the country provided affordable redistricting software for personal computers to the general public.
88. The purpose of FREDS was to create a program for drawing and reviewing districting plans that would be easy to use by both the legislature and the public. Though FREDS was initially intended as a tool for the legislature in the redistricting process, it was recognized from the outset that FREDS could be made available to the public.
89. FREDS contained data from the 1990 and 2000 censuses and Florida election results. The census data included population counts broken down by race, including voting-age population, and registration counts broken down by party, gender, age, and race; the election data included actual election results for Florida elections in 1992, 1994, 1996, 1998, and 2000.
90. In 2000, based upon census guidelines, citizens could self identify with respect to race by choosing one or more of six options. To accommodate the 2000 census reporting options the United States Office of Management and Budget ("OMB") and the United States Department of Justice ("DOJ") issued guidelines with respect to allocation of minorities. Specifically, the DOJ guidelines set forth the allocation methodology appropriate for civil rights enforcement. FREDS incorporated the federal allocation guidelines. In July of 2000, the allocation method utilized by FREDS was discussed with Joe Rich, Chief of the Voting Rights Section of the DOJ and received a "positive" reaction. Due to the use of the DOJ and OMB guidelines, FREDS did not have a separate category for "Single-Race Black," though information for such a category was available in the 2000 census. Instead, FREDS had the following population categories: "Non-Hispanic Black;" "Hispanic Black;" "Hispanic;" "Single-Race White;" and "Other."
91. FREDS uses a disaggregation method (an estimation technique) for applying precinct data to census blocks. This disaggregation method used by the legislature—which seeks to take information from a larger geographic level and import the character of that data to a smaller geographic level—is consistent with past practice, and is an appropriate method for applying election results to census blocks in Florida.
92. A potential alternative method for applying voter registration counts to census blocks is known as geocoding. Geocoding involves the use of voter registration data, which includes address information, from the Florida central voter files, to match voters with their addresses and place them within census blocks. A state employee attempted to geocode the central voter file, but he did not know the particulars of which county or counties were selected and what methods were used. Mr. Guthrie asked Florida's *1292 Office of Demographic and Economic Research ("ODER") to attempt to geocode the election information to the census block level. The ODER reported, however, that it was unable to geocode "15 to 20 percent of the voters" to their census blocks. Mr. Guthrie therefore decided to use the disaggregation method.
93. In order to disaggregate election information from the precinct level to the census block level, the FREDS development team relied upon an assumption of homogenous distribution of population for every census category within a census block.
94. The FREDS development team did not develop or have an understanding of what the margin of error was for the assumption of homogenous census geography relied upon in developing FREDS.
95. The Martinez plaintiffs' second expert, Dr. Gerald Webster, testified in his deposition that it was not possible to geocode the data. There is no testimony by the Martinez plaintiffs' experts suggesting that disaggregation is not an appropriate methodology. In fact, some of the Martinez plaintiffs' experts used the district level estimates derived using the FREDS disaggregation method.
96. On July 12, 2001, a beta version of FREDS was released to members of the legislature, as well as to the public, for full scale testing. This initial release revealed that FREDS was incompatible with older versions of Microsoft Internet Explorer. FREDS, for example, crashed the City of Hialeah's computer. The necessary Internet Explorer update, however, was available at no cost on the Microsoft website long before the July 12, 2001, beta release of FREDS. In any event, the problem was diagnosed within hours of the release of FREDS, and the method of resolving it was publicized by posting the information on the redistricting websites and directly calling the 20 or so members of the public that had purchased FREDS at that time.
97. The FREDS software costs $20, in contrast to commercially available programs that could be used to draw district lines, such as Maptitude, which costs $3,500 and requires additional expenditures before it can be used for redistricting.
98. Despite its low cost, less than 300 people purchased the FREDS software.
99. The computer requirements for running FREDS are not substantial. At the time of trial, a computer with capabilities exceeding the requirements for running FREDS—a Windows 98 or higher operating system, a 300 megahertz or higher processor, and RAM of 64 megabytes or higher—could be purchased for less than $500.
100. In addition to selling the software for $20, FREDS was made available to the public through distribution to 508 public libraries across the state of Florida, 28 depository libraries, every public and private college library, and supervisors of elections in each county. FREDS was also available at no cost on the redistricting websites.
101. Training on how to use FREDS was made available in a variety of ways. After it was suggested that training be provided at the August 27, 2001, public hearing in Clearwater, assistance and training were available at each public hearing from that date forward for about an hour prior to the start of the hearing. These were not formal training sessions or classes, however, and consisted of Mr. Guthrie and others answering the questions of citizens who dropped by. The software package includes a 138-page help manual and a tutorial. This manual was *1293 available for viewing and downloading on the redistricting websites.
102. None of the traditional methods of contacting one's legislator were curtailed or affected by FREDS or the redistricting process used by the legislature. Accordingly, any Floridian with concerns about redistricting was able to visit, telephone, and write to his or her legislator, in addition to the additional methods provided through the distribution of FREDS, the public hearings, and the establishment of the House and Senate redistricting websites.
7. THE REDISTRICTING PLANS
103. The legislature reached out to specific voting rights and public interest groups. On December 21, 2001, Representative Johnnie B. Byrd, Jr., Chairman of the House Procedural and Redistricting Council, sent a letter to the Florida Democratic and Republican Parties, Common Cause, the Florida State Conference of NAACP Branches, the Florida League of Women Voters (both statewide and the Tallahassee chapter), and the American Federation of State, County and Municipal Employees. In the letter, Chairman Byrd invited these organizations to participate in the redistricting process:
In the continuing spirit of having the most fair and open redistricting in Florida's history I would like to personally invite you to our redistricting committee meetings on January 7, 2002 to present your view on the maps that have been proposed thus far and offer any redistricting plans or ideas that your organization has developed. These committee meetings will serve as yet another opportunity for the public to have their voice heard on redistricting matters.
104. On January 7, 2002, the Florida State Conference of NAACP Branches ("NAACP") responded to Chairman Byrd's letter with a memorandum to the House Redistricting Committee, noting that while the "NAACP usually includes alternative redistricting plans" when it presents analysis of redistricting plans being considered by state and local jurisdictions, it was "not necessary" to do so at that point in Florida's redistricting process, based on the plans already proposed.
105. The NAACP further observed that "Florida has done a better job than many states" in its endeavor to comply with section 2 of the Voting Rights Act. The letter also provided the NAACP's analysis of plans under consideration at that time.
106. On January 22, 2002, Representative Mario Diaz-Balart, Chairman of the House Congressional Redistricting Committee, sent another letter to the NAACP, thanking it for the memorandum and inviting NAACP participation in a committee meeting to workshop and discuss the memorandum.
107. There were four House committees that were responsible for drafting and approving the House legislative and congressional plans for full chambers consideration. These were the House Procedural and Redistricting Council ("Procedural"), House Congressional Redistricting Committee ("Congressional"), House Redistricting Committee ("House"), and Senate Redistricting Committee ("Senate") (collectively the "House Committees"). Speaker Feeney appointed each member of the House Committees and each of those committees had at least a majority of Republicans. The partisan break down for each House Committee was as follows: Procedural (13 Republicans and 6 Democrats); House (6 Republicans and 3 Democrats); and Senate (4 Republicans and 3 Democrats). No Democrat chaired or co-chaired a House Committee. No amendment *1294 to the House Committees' maps that was introduced by a Democratic committee member or member of the House was ever adopted. No Democratic member's amendment was ever adopted during the House floor debate on the committees' maps.
108. In total, the House Committees (e.g., House, Senate, and Congressional) held 16 meetings between October of 2001 and February of 2002 to discuss the concepts being presented by various plans and any amendments that had been filed.
109. During this time, the legislative leadership announced that the staff of the redistricting committees was available to assist any member of the legislature in understanding demographic, legal, or other relevant issues. All members were encouraged to engage in the process by filing plans and plan amendments, and to utilize the committee staff. Each of the plans filed was posted on the Internet and available for public review and comment.
110. There were few maps proposed by the public that were sponsored by legislative members.
111. Proposed congressional and state redistricting plans were filed for consideration by Representative William F. Andrews (H087H001 and H087H002); Representative Anna Holliday Benson (H003H001 and H003H002); Representative Phillip J. Brutus (H108H001 and H108H002); Representative Byrd, Jr. (H062H001, H062S001, and H062C002); Representative Larry Crow (H049H001 and H049H002); Representative Nancy Detert (H070H002 and H070H004); Representative Greg Evers (H001H001); Representative Frank Farkas (H052C001, H052H001 and H052H002); Representative Andy Gardiner (H040C001 and H040H001); Representative James Harper, Jr. (H084H001); Representative Mike Hogan (H013C001 and H013H003); Representative Lerner (H119H001); Representative Will Kendrick (H010H003 and H010H005); Representative Bev Kilmer (H007H001); Representative Jeffrey D. Kottkamp (H074H001); Representative Mitch Needelman (H031H003 and H031H005); Representative Joe Negron (H082H003); Representative Joe H. Pickens (H021H002); Representative Marco Rubio (H111H001, H111H003, and H111S001); Representative Timothy M. Ryan (H099H001, H099H002, and H099S001); Representative David Simmons (H037H002); Representative Joseph R. Spratt (H077H004); Representative Rob Wallace (H047H001 and H047S001); Senator Alex Diaz de la Portilla (S34S00017 and S34S00031); Senator Holzendorf (S02S00010, S02S00012, S02S00019, S02S00025, S02S00028, and S02S00035); Senator Bill Posey (S15S0002 and S15S00030); Senator Charlie Clary (S07S00033 and S07S00034); Senator Daniel Webster (S12S00027); Senator Wasserman-Schultz (S32S0008); Senator John F. Laurent (S17S0001, S17S0003, S17S0005, S17S0006, S17S0009, S17S00011, S17S00016, S17S00022, S17S00023, S17S00024, S17S00026, S17S00032, and S17S00036); Senator Steven A. Geller (S29S0007, S29S00013, S29S00014, S29S00015, S29S00018, S29S00020, S29S00021, and S29S00029); Representative Edward L. Jennings, Jr. (H023S001); Representative David D. Russell, Jr. (H044S001); Representative Bruce Kyle (H073S001); Representative Christopher L. Smith (H093C001 and H093S001); Senator Jack Latvala (S19C0004, S19C0005, S19C0010, S19C0011, S19C0015, S19C0016, S19C0017); Senator Daryl L. Jones (S40C0006 and S40C0012); Senator Burt L. Saunders (S25C0007); Senator Walter G. Campbell (S33C0009); Senator Ginny Brown-Waite (S10C0013); Senator Lesley Miller, Jr. (S21C0014); Representative *1295 J. Dudley Goodlette (H076C001); Representative Meadows (H094C001 and H094C002); Representative Diaz-Balart (H112C001 H112C002, H112C003, and H112C004).
112. Representative Lerner, a Democrat, drafted and participated in submitting an alternative house plan to the legislature that kept former HD 119 relatively unchanged. She withdrew the plan, however, because she was satisfied with the plan submitted by Representative Ryan.
113. The redistricting proceedings in the Senate mirrored the House proceedings, with one exception. The Senate did not draw a Senate legislative House plan. Instead, the Senate informed the House that it was not going to draw House districts, and the Senate expected that the House would not draw Senate districts. As noted above, however, the House drew a Senate map.
114. Three Senate committees were primarily responsible for drafting and approving the Senate legislative and congressional plans for full chambers consideration: Senate Committee on Reapportionment ("Senate Reapportionment"), Senate Reapportionment Subcommittee on Congressional Apportionment and Redistricting ("Senate Congressional"), and Senate Reapportionment Subcommittee on Legislative Apportionment and Redistricting ("Senate Legislative") (collectively "Senate Committees"). President McKay appointed each member of the Senate Committees. Republicans constituted at least a majority of the membership of each of the Senate Committees. As in the House, no amendment introduced by a Democratic committee member was adopted in committee or on the Senate floor.
115. Although the Senate Committees did not conduct simultaneous meetings, the Senate Legislative Committee cancelled three consecutive meetings, on February 28, 2002, March 7, 2002, and March 8, 2002. The Senate Legislative Committee did not post the final maps it would consider until after midnight on the morning of the Senate Legislative Committee meeting of March 12, 2002.
116. At the March 12, 2002 Senate Legislative Committee Meeting, the Chair of the Committee voted against the committee's map and voiced his concern that the public had not received adequate notice and an opportunity to consider the committee's proposed maps. Chairman Webster also voiced his concerns that the start time did not allow constituents enough time to contact the individual senators regarding any concerns they may have with the maps:
I think we told the public that we would have these things posted as soon as we could on the Internet and that people could look at them. And if they had questions, they could either call their members or call us or write us, or do something, get in touch with us in a way that would allow us to respond to whatever it is that they had a concern about. And that didn't happen this time, and so I guess for me, it is just a statement to say, I'm voting no because I feel like the public didn't have enough time on this particular issue. If you have a conscience that's bothering you, then I guess you could join me, but I'm not asking that. I'm just saying mine did, because I'm the one that made the statements, I'm the one that defended the Senate, I'm the one that said we would have an open and an inclusive and a fair process. And I felt like in this one step, we did not.
117. Despite Chairman Webster's concerns, the proposed Senate Legislative Committee bill was eventually approved.
*1296 118. Public testimony was also presented to the Senate Legislative Committee at the March 12, 2002 meeting that questioned the Committee's cancellation of its meetings and the adverse effect the cancellations had on the public's ability to participate. For example, the Republican Chairman of Marion County made the following statement:
It is a shame, however, that the public has to be put through what they have had to be put through to get to this point.
Many times, the meetings have been canceled and rescheduled and canceled and rescheduled. The public in many cases has given up on trying to even come and testify any longer. But it is sad process.
119. In total, the Senate Redistricting Committees held seven meetings between January 7, 2002 and March 12, 2002 to discuss the formulation of redistricting plans.
120. Disputes between Speaker Feeney and President McKay led to delays in the redistricting process.
121. When Speaker Feeney and President McKay reached a last-minute resolution of their dispute, the legislature did not refer the Senate's proposed Senate map to a House Committee or otherwise consider the map on the House floor. The Senate also did not refer the House proposed version of the legislative House map to a Senate committee or otherwise consider the House legislative districts.
122. Once the Senate adopted the Senate legislative map and substituted the same in the House proposed resolution (HJR 1987) for the Senate map, the House considered the revised resolution as a message from the Senate on a motion of Representative Goodlette, a Republican. Thereafter, Republican Representative Byrd moved that the House concur in Senate Amendment 3 under House Rule 12.6(a)(2). Prior to any debate, questions, or discussion of the Senate amendment, Representative Rubio, a Republican, moved the previous question on the motion to concur in the Senate amendment. The motion passed 74-43. All Democrats present voted no. Two Republicans also voted no. Under House Rule 11.8, a motion for the previous question is not debatable and a majority vote will end all debate, except that the sponsor and opponent of the bill are allowed three minutes of debate each. The proponent and opponent are also allowed to yield time to other members. In this case, Speaker Feeney selected two Republicans to debate the resolution, Representative Kyle and Representative Byrd. All debate on the resolution, therefore, was limited to two Republican members and no Democrat was afforded an opportunity to debate. A final vote was taken on the motion to concur in the Senate amendment, which passed 73-43. All Democrats voted no along with Representative Kyle.
123. The Republican-controlled legislature intended to maximize the number of Republican congressional and legislative seats through the redistricting process, and used its majority power to control the types of bills and maps that would be considered in the House and Senate.
124. One of the most complicated and significant issues the legislature faced was the result of the need to create an additional congressional district in south Florida —one of the two additional districts to which Florida was entitled as a result of the 2000 census—combined with the slow growth and under-population in several of the existing south Florida congressional districts (e.g., old CD 17). This problem was specifically addressed during the House floor debate on proposed congressional plans. As Representative Diaz-Balart *1297 put it: "There were significant changes in other south Florida districts largely due, Mr. Speaker, to the creation of the new district [CD 25], and also due to the slow growth in Districts 17, 18, 22, and 23 that required additional areas to be added to these districts."
C. ULTIMATE FINDINGS ON THE "PROCESS" CLAIMS
We find that the Martinez plaintiffs have failed to carry their burden of showing intentional discrimination against blacks, Hispanics, or any other minority groups on their "process" claims.
The Martinez plaintiffs contend that the Republican legislative leadership did not follow customary legislative protocol in devising Florida's public hearing schedule. In particular, they claim that no public meetings or legislative committee discussions were held concerning the proposed hearings or for the receipt of public input concerning the redistricting process. Furthermore, they point out, when the hearing schedule was presented to the Democratic members of the legislature and the public, the legislative leadership refused to answer questions regarding the selection of the hearing locations and start times. In short, the Martinez plaintiffs claim that all decisions regarding the redistricting hearing process were predetermined or made behind closed doors, and that the plans were therefore drawn devoid of public input and scrutiny.
The Martinez plaintiffs also assert that the public hearing process had a disproportionate impact on the state's blacks and other minorities. They maintain that these groups traditionally hold jobs that require daily attendance during working hours, and that 18 of the 24 hearings were held at some point during the day between normal business hours. In contrast, only four public hearings began after 6:00 p.m. They further argue that the public hearing schedule avoided high population cities where the vast majority of Florida's black and minority communities reside. Only one hearing was held in a predominately black community, and only one hearing conducted in a predominately Hispanic community. Moreover, the Martinez plaintiffs say that the notices that were provided to the public were inadequate and frequently provided too close in time to the meeting dates to provide the public with an opportunity to arrange for their participation.
At a general level, we share some of the concerns articulated by the Martinez plaintiffs in their "process" claims. First, although the Republican leadership of the legislature did not prevent anyone from presenting their views on redistricting, held numerous hearings throughout the state on redistricting which large numbers of people attended, and created a software program—FREDS—that was economical and available to the public, it appears that the leadership also wanted to limit the actual substantive debate on the merits of the various plans that were proposed, and did not much care about input from the Democratic minority or the public on the redistricting process or the plans themselves. This raw exercise of majority legislative power does not seem to be the best way of conducting a critical task like redistricting, but it does seem to be an unfortunate fact of political life around the country. Second, as the Martinez plaintiffs point out, it might have been preferable to provide more than two to five days' notice in newspapers to the public about upcoming hearings rather than rely on internet websites.
Other concerns voiced by the Martinez plaintiffs, however, are not well-founded. For example, the claim that choosing FREDS over other available redistricting software was somehow discriminatory is *1298 hollow. FREDS was much less expensive than Maptitude and therefore more accessible to the public. Similarly, the allocation of minority groups in FREDS was not motivated by any racial animus, as that allocation was based on a methodology that was consistent with DOJ and OMB guidelines. Finally, the use of a disaggregation method over geocoding was not discriminatory in any way.
In any event, our role is not to determine whether the procedural choices made by the legislature were the best among a range of options, whether the legislative action had to reflect the testimony received at the public hearings, or whether the legislature was required to consider that testimony or input during its redistricting deliberations. [14] Our task, instead, is to determine whether the legislature's actions violated federal law, and our finding is they did not. The Martinez plaintiffs failed to present any evidence to show that the defendants were motivated by discrimination against blacks or Hispanics in deciding what redistricting software or allocation methodology to use, where to hold the public hearings, when to hold public hearings, what type of notice to provide, or whether to consider input from Florida citizens and Democratic legislators in drawing the redistricting plans. [15]
II. VOTE DILUTION BASED ON RACE
After having addressed plaintiffs' process claims, we now turn to the allegations of racial vote dilution. For purposes of this litigation, the parties do not dispute that section 2 requires the creation of performing minority districts and that the number created by the Florida legislature is sufficient to satisfy that obligation. Rather, the plaintiffs claim that the reapportionment plan used by the Florida legislature results in the dilution of black voting power, [16] and hence a violation of the Voting Rights Act, because the newly drawn performing districts are either not sufficiently likely to perform or are excessively packed so as to "waste" minority votes.
To evaluate these allegations concerning the composition of the performing minority districts—a necessarily fact-intensive inquiry —the bulk of this part is dedicated to setting forth our findings of fact with respect to racial voting behavior, the Florida redistricting process, and the makeup and voting history of each of the challenged districts. In subpart II.B. below, we conclude that the evidence does not support a finding that the strength of black voters will be negatively impacted by the reapportionment. The evidence suggests that black candidates of choice will prevail in a very high percentage of elections in the challenged districts and that none of the districts are impermissibly stacked.
A. FINDINGS OF FACT
1. GENERAL FINDINGS: VOTING BEHAVIOR BY RACE
125. There is a substantial degree of racially polarized voting in south Florida *1299 and northeast Florida—the areas of the state involved in plaintiffs' claims of racial vote dilution. A substantial majority of black voters in these areas sometimes favors candidates that most other voters do not favor. A substantial majority of non-black voters sometimes opposes black candidates of choice.
126. In any district in these areas in which blacks do not comprise a majority or near majority of actual voters, it is likely that the black candidate of choice (if different from the candidate of choice of non-black voters) will not often prevail; instead, the candidate of choice of non-black voters will prevail. Black candidates of choice often will prevail, however, in a district in which blacks comprise a near majority of actual voters, even when they do not comprise a majority, because a significant number of non-black voters support black candidates of choice.
127. Voting behavior by race for any district in these geographic areas cannot be projected with certainty. The most constant characteristic of the Florida population is that it constantly changes; voters in any district come and go. This is especially so in south Florida. By the time of the 2002 elections, the demographics of any district will differ from those reflected in the 2000 census. By 2008 or 2010, the differences will be substantial. Projections of 2002 election outcomes based on 2000 census data are uncertain. Projections of 2008 or 2010 election outcomes based on 2000 census data are even more uncertain.
128. Projections based on prior voting behavior also are uncertain. Although voting turnout and preference by race for the geographic area covered by a district can reasonably be estimated for prior elections, the movement of voters into and out of the area necessarily means the prior votes were cast by a different set of voters than will vote in any future election. And even those voters who stay in a district do not always vote as they did previously.
129. More fundamentally, neither voters nor candidates are fungible, whether within or without the same racial or ethnic groups. Turnout and voter preference vary not only with such factors as the type of election and race of the candidates, but also with overall political trends and with the particular issues and candidates involved in a particular election.
130. For the districts at issue in this case, it is impossible to project with certainty the voter turnout and preference by race that will occur during the coming decade. [17] Nonetheless, reasonable projections can be made. In making such projections, *1300 all relevant circumstances and data properly are considered; no one type of analysis or set of data is sufficiently reliable to justify its use standing alone. Both demographics and past voting performance are relevant.
2. CONGRESSIONAL PLAN
a. BACKGROUND
131. During each recent decade, Florida's population has grown substantially, resulting in an increase in Florida's number of representatives in the United States House of Representatives.
132. As a result of the 1990 census, Florida's number of representatives increased from 19 to 23. The Florida legislature was unable to agree on an apportionment plan. Florida law provided no method for adopting a plan in the absence of action by the Florida legislature. Because of increases and shifts in population, the preexisting plan as adopted in 1982 was malapportioned, in violation of the one person, one vote principle. Litigation in the United States District Court for the Northern District of Florida led to the implementation of a plan drawn by a court-appointed expert based on the litigants' submissions.
133. The court-drawn plan included three districts (numbered 3, 17, and 23) that were projected to perform for a black candidate of choice and two districts (numbered 18 and 21) that were projected to perform for an Hispanic candidate of choice. Districts that are projected to perform for minority candidates of choice are sometimes referred to in this order as "minority districts."
134. Each of these five minority districts performed as anticipated. In 1992, voters elected Corrine Brown (in CD 3), Carrie Meek (in CD 17), and Alcee Hastings (in CD 23), each of whom is black, and Ileana Ros-Lehtinen (in CD 18) and Lincoln Diaz-Balart (in CD 21), each of whom is Hispanic. Each was the candidate of choice of the relevant minority in the district. Each was reelected in 1994, 1996, [18] 1998, and 2000, and continues to serve. [19]
135. As a result of the 2000 census, Florida's number of representatives in the United States House of Representatives increased from 23 to 25. The Florida legislature was controlled by a substantial Republican majority in each house. The legislature adopted a congressional reapportionment plan on March 22, 2002, with 25 single member districts. Governor Bush, also a Republican, signed the plan into law on March 27, 2002.
b. ULTIMATE FINDINGS [20]
136. The legislature's overriding goal with respect to congressional reapportionment *1301 was to adopt a plan that would withstand legal challenges and would maximize the number of districts likely to perform for Republicans. The legislature had no purpose to discriminate against black or Hispanic candidates or voters. To the contrary, the legislature affirmatively intended not to discriminate against black or Hispanic candidates or voters. The legislature recognized that adopting districts that would not dilute black or Hispanic voting strength was fully consistent with— perhaps even essential to—the goal of adopting a plan that would withstand legal challenges.
137. The legislature's plan included three districts (still numbered 3, 17, and 23) intended to perform for black candidates of choice.
138. It is likely that CDs 3, 17, and 23 will in fact perform for black candidates of choice, and that black candidates of choice will be elected in these districts throughout the coming decade.
139. The legislature determined, correctly, that increases in the Hispanic population made it feasible to draw a third reasonably compact district that would perform for Hispanic candidates of choice. The legislature's plan included three districts (two still numbered 18 and 21 and a new district numbered 25) intended to perform for Hispanic candidates of choice.
140. It is likely that CDs 18, 21, and 25 will in fact perform for Hispanic candidates of choice, and that Hispanic candidates of choice will be elected in these districts throughout the coming decade.
141. Race was considered in the drawing of CDs 3, 17, and 23, and Hispanic status was considered in the drawing of CDs 18, 21, and 25, in an effort to enhance performance of the districts for black or Hispanic candidates of choice, to avoid dilution of the votes of black or Hispanic voters, and to comply with section 2 of the Voting Rights Act of 1965. Traditional districting principles also were considered and respected in the drawing of these districts. No effort was made to afford blacks or Hispanics substantially greater than proportional representation or to afford them representation inconsistent with traditional districting principles. Neither race nor Hispanic status was the controlling or predominant factor in the drawing of such districts.
142. CDs 3, 17, 23, 18, 21, and 25 are reasonably compact.
143. CDs 3, 17, 23, 18, 21, and 25 in fact comply to a reasonable extent with traditional districting principles.
144. No greater number of reasonably compact performing minority districts reasonably could have been drawn.
c. CENSUS DATA [21]
145. The 1990 census included as a racial category "Black or Negro." The 2000 census included as a racial category "Black, African Am. or Negro." In this order, we use "black" as shorthand for this category. See supra note 2.
*1302 146. In the 2000 census, respondents were required to self identify as at least one race; they were free to self identify as more than one race. Various races (including "White," "Black, African Am., or Negro," "American Indian or Alaska Native," and various Asian nationalities) were listed, as was a category "Some other race—Print race." In the 1990 census, respondents were required to self identify as one and only one race; various races (substantively the same as for 2000) were listed, as was a category "Other race (Print race)." In both the 1990 and 2000 censuses, race was a wholly separate category from Hispanic status; regardless of a respondent's racial self-identification, the respondent was required to self identify as either Hispanic or not Hispanic. [22]
147. It is likely that some individuals who identified themselves as both black and another race in 2000 identified themselves in the single category black in 1990. It also is likely that some individuals who identified themselves as both black and another race in 2000 did not identify themselves as black in 1990 but instead listed themselves as another race or as "Other race." So far as this record reflects or we are aware, there are no reliable studies of the effect of the change from the 1990 single race response requirement to the 2000 allowance of multiple race responses. It is unlikely that the change materially affects the analysis relevant to this case, because the number of persons counted as black under the 2000 methodology who would not be counted as black under the 1990 methodology probably is small. The discrimination of primary concern for present purposes is discrimination (that is, vote dilution) against blacks; it seems unlikely that such discrimination would be directed to single race blacks but not multi-race blacks, or vice versa. [23]
d. CONGRESSIONAL DISTRICT 23
148. According to the 2000 census, the non-Hispanic black population of new CD 23 was 54.6%, and the Hispanic black population was 1%, for a total black population of 55.6%. The non-Hispanic black voting age population was 49.3%, and the Hispanic black voting age population was 0.8%, for a total black voting age population of 50.1%.
149. Voting age population, not total population, is relevant to assessing potential voting strength as of 2000, but some of those who were underage in 2000 already have come of age, and others of course will do so in ensuing years. Other things being equal, the 50.1% black voting age population will increase during the coming decade. [24]
*1303 150. Even with only a 50.1% black voting age population, the district will afford black voters a reasonable opportunity to elect candidates of choice and probably will in fact perform for black candidates of choice.
151. This is so in part because, according to 2000 data, blacks constitute 59.2% of registered Democrats in new CD 23, and Democrats constitute 65.0% of registered voters. Republicans constitute only 19.5% of registered voters. Actual voting also is overwhelmingly Democratic; in the 2000 presidential election, voters in new CD 23 voted 78.5% for Democratic candidate Al Gore and 19.9% for Republican candidate George W. Bush. The black candidate of choice is likely to win a contested Democratic primary, and the Democratic nominee is likely to win the general election. [25]
152. The history of prior CD 23— which had different boundaries but the same core and similar demographics as new CD 23—suggests that a 55.6% total black population and 50.1% black voting age population are sufficient to cause the district to perform for black candidates of choice. When first drawn in 1992, [26] prior CD 23 had (according to the 1990 census) a non-Hispanic black population of 50.2%, Hispanic black population of 1.5%, and total black population of 51.7%, nearly four percentage points lower than the total black population of newly created CD 23 under the 2000 census. Similarly, when first drawn in 1992, prior CD 23 had (according to the 1990 census) a non-Hispanic black voting age population of 44.4%, Hispanic black voting age population of 1.4%, and total black voting age population of 45.8%, more than four points lower than new CD 23 has under the 2000 census.
153. The black percentage of total population in prior CD 23 increased throughout the decade of the 1990s, as did the black percentage of voting age population. By the time of the 2000 census, prior CD 23 had black total population of 58.7% and black voting age population of 53.9%— higher than new CD 23—but there is no reason to believe that percentages that high were necessary for the district to perform for black candidates of choice.
154. Prior CD 23 performed for the black candidate of choice in every election from 1992 through 2000. New CD 23 has demographics more favorable to black candidates of choice than did prior CD 23 when it was created. The demographics of new CD 23 are likely to become more favorable for black candidates of choice as time passes, just as occurred in prior CD 23. There is no reason to believe racial polarization has changed materially since 1992. There is no reason to believe that new CD 23 will perform less favorably for black candidates of choice in the coming decade than did old CD 23 in the prior decade. [27]
*1304 155. Techniques of ecological regression and projection of future voting behavior that are reasonably reliable and accepted in the field of political science support the conclusion that CD 23 will perform for black candidates of choice. Such techniques require choosing past elections on which ecological regression is performed and making assumptions and choosing data sets for use in projecting the results of future elections. There is no single reliable or accepted approach for choosing past elections or choosing data sets for projecting future elections. The parties' experts have performed their analyses using various past elections and various assumptions and data sets for projecting future elections; they could have performed the analysis in many additional ways as well. No purpose would be served by addressing all the analyses that have been or could be done for CD 23. We address only so much of the analysis as necessary to explain why, even if plaintiffs' data are accepted, it is still clear that CD 23 can be expected to perform for black candidates of choice.
156. There have been two changes in Florida law in the last decade that affect the analysis. First, in elections prior to and during 1998, political party primaries always were "closed," that is, only registered members of a political party could vote in that party's primaries. Effective January 5, 1999, the Florida Constitution was amended to provide that, when the only candidates for an office are from the same party, so that that party's nominee will have no opposition in the general election, the party's primary is "open," that is, all voters may participate in the primary, regardless of party registration. [28] The Florida Secretary of State has interpreted this provision to mean that a primary is "open" only if there are no other candidates who have qualified to have their names on the general election ballot and also no qualified write-in candidates. [29] The interpretation of the Secretary of State has not, so far as we are aware, been challenged; it has been followed in all elections since the "open primary" provision was adopted. Nor, so far as we are aware, has the Florida "open primary" provision been challenged. [30]
*1305 157. The second change in Florida law occurred in 2001. Prior to that time, there was a "majority vote requirement" in party primaries. If no candidate received a majority of the votes in a primary, there was a "runoff" or "second primary" between the two candidates who received the highest number of votes in the first primary. In 2001, the Florida legislature eliminated the majority vote requirement; there is now a single primary, with the candidate who receives the most votes, even if less than a majority, advancing to the general election. The new provision sunsets, however, on January 1, 2004. After that date, there will again be a majority vote requirement, unless the legislature takes action to the contrary. [31]
158. It is clear that, in a closed Democratic primary in which only a single candidate has substantial support among black voters, CD 23 is likely to perform for that candidate, as against a single opposing candidate or indeed as against all comers. The parties' analyses consistently have projected a vote in excess of 50% for the black candidate of choice in such an election. Plaintiffs have presented no projections to the contrary. Further, the likelihood is overwhelming that the Democratic primary winner will prevail in any general election; plaintiffs concede as much.
159. The virtually uncontested findings set forth in paragraph 158, without more, make it likely that CD 23 will perform for black candidates of choice, because if ever the ability of CD 23 to elect a black candidate of choice is in jeopardy, it is likely that the Democratic primary will be closed ( see infra paragraph 160), and it is likely that there will be a single candidate with substantial support among black voters ( see infra paragraphs 161-162).
160. There have been 115 congressional elections in Florida since adoption of the 1992 congressional reapportionment plan—five in each of the 23 districts. Only two of those 115 elections would have had an "open" primary if the new Florida open primary provision had been in effect. Both were Republican primaries, one in 1992 and one in 1994. Thus, the conditions that would lead to an open Democratic primary have not occurred in at least a decade. The likelihood that any Democratic primary in any district will be "open" in the next decade is small. Moreover, it is likely that, in any election in which the ability of CD 23 to elect a black candidate of choice is in jeopardy because of the possibility that the primary will be open, a write-in candidate will qualify for the general election, thus closing the primary. [32]
*1306 161. It is possible that in a given Democratic primary election in CD 23, there could be two or more candidates with substantial support among black voters. It is possible that, even though such candidates in combination would receive a majority of all votes cast in the primary, another candidate would win the primary, because of the elimination of the majority vote requirement. It is likely, however, that in any election in which the ability of CD 23 to elect a black candidate of choice would be in jeopardy for this reason, a single candidate favored by the black community would emerge, either as a result of withdrawal of competing candidates with support in the black community, or by coalescence of black voters behind the single candidate. Even if that did not occur, this would indicate not that black voters had not had a reasonable opportunity to elect a candidate of their choice, but only that, in a particular instance, that opportunity was not realized.
162. In any event, elimination of the majority vote requirement can make a difference only if there are three or more candidates in the primary. The possibility is more theoretical than real that there will be any such election in CD 23 prior to reinstatement of the majority vote requirement. Mr. Hastings, the incumbent, has drawn no primary opposition at all since 1992. The possibility that in 2002 there would be three candidates in the Democratic primary—including a candidate in addition to Mr. Hastings who has substantial support in the black community—was remote. The majority vote requirement will return in 2004 unless the legislature takes action to the contrary.
163. Even the analysis most favorable to plaintiffs fails to undermine the conclusion that CD 23 is likely to perform for black candidates of choice. Plaintiffs posit that if there is an open Democratic primary with Republicans and independents voting, and if the turnout of black voters as a percentage of overall voters is only the same as in the 1998 general election, and if black voters are only as cohesive as in a mix of low-visibility, sometimes nonpartisan elections, and if there is no incumbency effect, then a black candidate of choice would poll only 48.0% of the vote, and thus would lose. See Pl. Exh. 81-C at 5, Table 3. In fact, however, if the ability of CD 23 to elect a black candidate of choice is in jeopardy, there is not likely to be an open primary, [33] black turnout relative to non-black turnout may well increase, [34] and black cohesiveness may well be higher than plaintiffs suggest. [35] Thus, even without *1307 an incumbent, the projection of a 48.0% vote for a black candidate of choice is unrealistically low. That the projected vote comes this close to a majority, even on these assumptions, is fully consistent with the conclusion that a black candidate of choice is likely to prevail, and that in all events blacks in CD 23 will have a reasonable opportunity to elect candidates of their choice.
164. Finally, the effects of incumbency provide further substantial support for the conclusion that CD 23 is likely to perform for a black candidate of choice. In each election from 1994 through 2000, Mr. Hastings was reelected; no election was close, and twice he had no opposition at all. [36] Mr. Hastings now apparently is the candidate of choice of most of the district's black and non-black voters alike. New CD 23, while comprised of a different set of voters, has similar demographics and is likely to perform for the black candidate of choice, with or without an incumbent. Absent a significant change in circumstances, the district is nearly certain to perform in any election involving Mr. Hastings, the current incumbent black candidate of choice. Plaintiffs apparently concede this. [37]
165. In sum, CD 23 is likely to perform for black candidates of choice. The votes of blacks in CD 23 have not been diluted.
e. CONGRESSIONAL DISTRICT 3
166. According to the 2000 census, the non-Hispanic black population of new CD 3 was 50.6%, and the Hispanic black population was 0.8%, for a total black population of 51.4%. The non-Hispanic black voting age population was 46.2%, and the Hispanic black voting age population was 0.7%, for a total black voting age population of 46.9%. Other things being equal, the 46.9% black voting age population will increase during the coming decade. [38]
167. Even with only a 46.9% black voting age population, new CD 3 will afford black voters a reasonable opportunity to elect candidates of choice and probably will in fact perform for black candidates of choice.
*1308 168. This is so in part because, based on 2000 data, blacks constitute 61.3% of registered Democrats in new CD 3, and Democrats constitute 63.8% of registered voters. Republicans constitute only 22.7% of registered voters. Actual voting also is strongly Democratic; in the 2000 presidential election, voters in new CD 3 voted 63.7% for Mr. Gore and 34.2% for Mr. Bush. The black candidate of choice is likely to win a contested Democratic primary, and the Democratic nominee is likely to win the general election.
169. The history of prior CD 3—which had different boundaries but the same core and similar demographics as new CD 3—is consistent with the finding that a 51.4% total black population and 46.9% black voting age population are sufficient to cause the district to perform for a black candidate of choice. CD 3 as drawn in 1992 had a greater black population than as redrawn in 1996. See supra note 18. CD 3 as redrawn in 1996 covered an area that, according to the 1990 census, had a non-Hispanic black population of 46.5%, Hispanic black population of 0.5%, and total black population of 47.0%, more than four percentage points lower than the total black population of newly created CD 3 under the 2000 census. Similarly, as redrawn in 1996, prior CD 3 covered an area that, according to the 1990 census, had a non-Hispanic black voting age population of 42.3%, Hispanic black voting age population of 0.4%, and total black voting age population of 42.7%, again more than four points lower than new CD 3 under the 2000 census.
170. By the time of the 2000 census, prior CD 3 as redrawn in 1996 had a total black population of 50.8% and a total black voting age population of 46.7%—comparable to, but slightly lower than, new CD 3.
171. Prior CD 3 performed for the black candidate of choice in every election from 1992 through 2000. New CD 3 has demographics more favorable to black candidates of choice than did prior CD 3 when it was redrawn in 1996 and indeed more favorable to black candidates of choice than that version of CD 3 would have today. The demographics of new CD 3 are likely to become more favorable for black candidates of choice as time passes, just as occurred in prior CD 3. There is no reason to believe that new CD 3 will perform less favorably for black candidates of choice in the coming decade than did prior CD 3 in 1996, 1998, and 2000.
172. Techniques of ecological regression and projection of future voting behavior that are reasonably reliable and accepted in the field of political science support the conclusion that CD 3 will perform for black candidates of choice. It is clear that, in a closed Democratic primary in which only a single candidate has substantial support among black voters, CD 3 is likely to perform for that candidate. None of the parties' analyses have projected a vote below 50% for the black candidate of choice in such an election. Further, it is likely that the Democratic primary winner will prevail in any general election; plaintiffs concede as much.
173. The virtually uncontested findings set forth in paragraph 172, without more, make it likely that CD 3 will perform for black candidates of choice, because if ever the ability of CD 3 to elect a black candidate of choice is in jeopardy, it is likely that the Democratic primary will be closed ( see supra paragraph 160), and it is likely that there will be a single black candidate of choice ( see supra paragraphs 161-162). [39]
*1309 174. Ms. Brown is a 10-year incumbent in CD 3. Her presence is not necessary to, but provides further support for, the conclusion that CD 3 is likely to perform for the black candidate of choice. See supra paragraph 164.
175. There is no evidence that any constitutionally-permissible alternative to CD 3 could be drawn that would meaningfully improve the projected performance of this district for black candidates of choice. Plaintiffs have virtually conceded this.
176. In sum, CD 3 is likely to perform for black candidates of choice. The votes of blacks in CD 3 have not been diluted.
f. CONGRESSIONAL DISTRICT 17
177. According to the 2000 census, the non-Hispanic black population of new CD 17 was 57.9%, and the Hispanic black population was 2.2%, for a total black population of 60.1%. The non-Hispanic black voting age population was 53.9%, and the Hispanic black voting age population was 2.1%, for a total black voting age population of 56.0%. Other things being equal, the 56.0% black voting age population will increase during the coming decade. [40]
178. Even with a 56.0% black voting age population, new CD 17 will afford black voters a reasonable opportunity to elect candidates of choice and probably will in fact perform for black candidates of choice.
179. This is so in part because, according to 2000 data, blacks constitute 65.9% of registered Democrats in new CD 17, and Democrats constitute 71.5% of registered voters. Republicans constitute only 14.6% of registered voters. Actual voting also is overwhelmingly Democratic; in the 2000 presidential election, voters in new CD 17 voted 83.9% for Mr. Gore and 15.1% for Mr. Bush. A black candidate of choice is likely to win a contested Democratic primary, and the Democratic nominee is likely to win the general election.
180. The history of prior CD 17— which had different boundaries but the same core and similar demographics as the new CD 17—suggests that a 60.1% total black population and 56.0% black voting age population are sufficient to cause the district to perform for black candidates of choice. When first drawn in 1992, [41] prior CD 17 had (according to the 1990 census) a non-Hispanic black population of 55.7%, Hispanic black population of 2.7%, and total black population of 58.4%, nearly two percentage points lower than the total black population of newly created CD 17 under the 2000 census. Similarly, when first drawn in 1992, prior CD 17 had (according to the 1990 census) a non-Hispanic black voting age population of 51.3%, Hispanic black voting age population of 2.7%, and total black voting age population of 54.0%, two points lower than new CD 17 under the 2000 census.
181. The percentage black voting age population and black total population in prior CD 17 increased during the decade of the 1990s. By the time of the 2000 census, prior CD 17 had a total black population of 63.4% and a total black voting age population of 60.0%—higher than new CD 17—but there is no reason to believe that percentages that high were necessary for the district to perform for black candidates of choice.
*1310 182. Prior CD 17 performed for the black candidate of choice in every election from 1992 through 2000. New CD 17 has demographics more favorable to black candidates of choice than did prior CD 17 when it was created. The demographics of new CD 17 are likely to become more favorable for black candidates of choice as time passes, just as occurred in prior CD 17. There is no reason to believe that new CD 17 will perform less favorably for black candidates of choice in the coming decade than did prior CD 17 in the preceding decade.
183. Techniques of ecological regression and projection of future voting behavior that are reasonably reliable and accepted in the field of political science support the conclusion that CD 17 will perform for black candidates of choice. It is clear that, in a closed Democratic primary in which only a single candidate has substantial support among black voters, CD 17 is likely to perform for that candidate. Indeed, even in an open Democratic primary, plaintiffs' own projections show a black candidate of choice prevailing with 54.1% of the vote. See Pl. Exh. 81-C at 15, Table 6. Further, it is likely that the Democratic primary winner will prevail in any general election; plaintiffs concede as much.
184. There is no evidence that any constitutionally-permissible alternative to CD 17 could be drawn that would meaningfully improve the projected performance of this district for a black candidate of choice. Plaintiffs have virtually conceded this.
185. In sum, CD 17 is likely to perform for black candidates of choice. The votes of blacks in CD 17 have not been diluted.
g. PROPORTIONALITY
186. According to the 2000 census, the voting age population of Florida's eight southernmost counties, which reasonably could be denominated south Florida, was 16.3% black. The population of those eight counties was sufficient for 8.9 congressional districts. Two districts constitute 22% of those 8.9 districts. CDs 17 and 23 are two of the districts in this eight-county area. [42]
187. According to the 2000 census, the voting age population of 16 counties in northeast Florida was 14.7% black. The population of those 16 counties was sufficient for 5.8 congressional districts. One district constitutes 17% of those 5.8 districts. CD 3 is one of the districts in this 16-county area. [43]
3. STATE LEGISLATURE
a. BACKGROUND
188. Florida's House of Representatives has 120 members and its Senate has 40.
189. In 1992, the Florida legislature adopted apportionment plans for the House and Senate based on the 1990 census. The United States Department of Justice pre-cleared the House plan but objected to the Senate plan as it impacted Hillsborough County. [44] The Governor and *1311 legislative leaders chose not to call a special session to address the Department of Justice objections. The Florida Supreme Court redrew the Senate plan to address the objections. See In re Constitutionality of Senate Joint Resolution 2G, Special Apportionment Session 1992, 601 So.2d 543 (Fla.1992). The Department of Justice pre-cleared the redrawn plan.
190. The House and Senate plans were challenged before a three-judge panel of the United States District Court for the Northern District of Florida. See De Grandy v. Wetherell, 815 F.Supp. 1550 (N.D.Fla.1992).
191. The House plan was challenged on grounds of alleged dilution of black votes in Escambia County (the westernmost county in the Florida panhandle) and dilution of Hispanic votes in south Florida. The court upheld a settlement agreement addressing the Escambia claims, and the affected districts were redrawn. With respect to the south Florida claims, the court held that the plan impermissibly diluted Hispanic votes, and the court adopted an alternative plan. Id. The United States Supreme Court stayed the court's decision with respect to south Florida districts and ultimately reversed, see Johnson v. De Grandy, 512 U.S. 997 , 114 S.Ct. 2647 , 129 L.Ed.2d 775 (1994), thus leaving intact the House plan as adopted in 1992 by the Florida legislature (except for the changes in Escambia County).
192. The Senate plan was challenged on the grounds of alleged dilution of both black and Hispanic votes in south Florida. The district court concluded that the Senate plan diluted both black and Hispanic votes in south Florida but that any remedy favoring one of these minorities would further dilute votes of the other. The court left the Senate plan intact as an acceptable resolution of the competing interests of the two groups. The Supreme Court affirmed but on different grounds; it found no dilution. Id. The plan as drawn by the Florida Supreme Court thus was in effect for the 1992 and 1994 elections.
193. A separate lawsuit before a three-judge panel of the United States District Court for the Middle District of Florida asserted a claim of racial gerrymandering in Senate District 21 (in the Tampa area) in violation of Shaw v. Reno, 509 U.S. 630 , 113 S.Ct. 2816 , 125 L.Ed.2d 511 (1993). The court approved a settlement agreement under which SD 21 was redrawn. See Scott v. Department of Justice, 920 F.Supp. 1248 (M.D.Fla.1996). [45] The Supreme Court affirmed. Lawyer v. Department of Justice, 521 U.S. 567 , 117 S.Ct. 2186 , 138 L.Ed.2d 669 (1997). The plan as redrawn was in effect for the 1996, 1998, and 2000 elections.
194. By 2000, the House and Senate plans as then in effect had become substantially malapportioned. On March 22, 2002, the Florida legislature adopted new House and Senate plans by joint resolution. Under the Florida Constitution, the Governor's approval was not required. See Fla. Const. Art. III § 16(a).
195. Under a procedure established by the Florida Constitution, see Fla. Const. Art. III § 16(c), the Florida Supreme Court reviewed the plans for facial compliance with the state and federal Constitutions and the Voting Rights Act of 1965. As noted earlier, the court held the plans *1312 valid. See In re Constitutionality of House Joint Resolution 1987, 817 So.2d 819 (Fla.2002). The court explicitly declined to address as-applied challenges of the type at issue in the case at bar. By its terms, the Florida Supreme Court's decision did not foreclose or express any opinion on claims such as those at issue here.
b. ULTIMATE FINDINGS
196. The legislature's overriding goal with respect to state legislative reapportionment in 2002 was to adopt plans that would withstand legal challenges and would maximize the number of districts likely to perform for Republicans. The legislature had no purpose to discriminate against black or Hispanic candidates or voters. To the contrary, the legislature affirmatively intended not to discriminate against black or Hispanic candidates or voters. The legislature recognized that adopting districts that would not dilute black or Hispanic voting strength was fully consistent with—perhaps even compelled by—the goal of adopting plans that would withstand legal challenges.
197. The Senate and House plans included districts ostensibly intended to perform for black or Hispanic candidates of choice. Plaintiffs do not challenge the overall number of ostensibly performing black or Hispanic districts. Plaintiffs do not challenge the compactness or configuration of any of the ostensibly performing black or Hispanic districts. Plaintiffs do not challenge the sufficiency of any of the Hispanic districts to perform for Hispanic candidates of choice. Plaintiffs do challenge the sufficiency of certain ostensibly performing black districts.
198. Among ostensibly performing black Senate districts, plaintiffs take issue only with SDs 1 and 18, which are successors to prior SDs 2 and 21. Plaintiffs concede, however, that there is no evidence that any constitutionally-permissible alternatives to SDs 1 or 18 could be drawn that would meaningfully improve the projected performance of these districts for black candidates of choice. Plaintiffs thus seek no relief with respect to the alleged dilution of black votes in these districts.
199. Among ostensibly performing black House districts, plaintiffs take issue only with HDs 103, 104, 108, 109, and 118 (all located in Miami-Dade County) and HDs 15, 39, and 94 (located outside Miami-Dade County). Plaintiffs concede, however, that there is no evidence that any constitutionally-permissible alternatives to HDs 15, 39, or 94 could be drawn that would meaningfully improve the projected performance of these districts for black candidates of choice. Plaintiffs thus seek no relief with respect to the alleged dilution of black votes in these districts.
200. Plaintiffs assert that three of the Miami-Dade County districts (HDs 104, 108, and 118) will not perform for black candidates of choice, and that the other two challenged Miami-Dade County districts (HDs 103 and 109) are unconstitutionally packed, thus wasting black votes. These five Miami-Dade County districts are addressed below in separate subsidiary findings. It is likely that each of these districts will in fact perform for black candidates of choice.
201. Race or Hispanic status was considered in the drawing of performing black or Hispanic State Senate and House districts in an effort to enhance performance of the districts for black or Hispanic candidates of choice, to avoid dilution of the votes of black or Hispanic voters, and to comply with section 2 of the Voting Rights Act. Traditional districting principles also were considered and respected in the drawing of these districts. No effort was made to afford blacks or Hispanics substantially greater than proportional representation *1313 or to afford them representation inconsistent with traditional districting principles. Neither race nor Hispanic status was the controlling or predominant factor in the drawing of such districts.
202. The minority districts are reasonably compact.
203. The minority districts in fact comply to a reasonable extent with traditional districting principles.
204. No greater number of reasonably compact performing minority districts reasonably could have been drawn.
c. STATE HOUSE DISTRICT 108
205. According to the 2000 census, the non-Hispanic black population of new HD 108 was 57.7%, and the Hispanic black population was 2.3%, for a total black population of 60.0%. The non-Hispanic black voting age population was 53.0%, and the Hispanic black voting age population was 2.2%, for a total black voting age population of 55.2%. Other things being equal, the 55.2% black voting age population will increase during the coming decade. [46]
206. A substantial share of the blacks in HD 108 are Haitian.
207. Even with a 55.2% black voting age population, new HD 108 will afford black voters a reasonable opportunity to elect candidates of their choice and probably will in fact perform for a black candidate of choice.
208. This is so in part because, according to 2000 data, blacks constitute 56.4% of registered Democrats in new HD 108, and Democrats constitute 67.5% of registered voters. Republicans constitute only 16.7% of registered voters. Actual voting also is overwhelmingly Democratic; in the 2000 presidential election, voters in new HD 108 voted 79.8% for Mr. Gore and 18.9% for Mr. Bush. A black candidate of choice is likely to win a contested Democratic primary, and the Democratic nominee is likely to win the general election.
209. The history of prior HD 108— which had different boundaries but the same core and similar demographics as the new HD 108—is not inconsistent with the finding that a 60.0% total black population and 55.2% black voting age population are sufficient to cause the district to perform for a black candidate of choice. When first drawn in 1992, prior HD 108 had (according to the 1990 census) a non-Hispanic black population of 62.7%, Hispanic black population of 3.4%, and total black population of 66.1%. Similarly, when first drawn in 1992, prior HD 108 had (according to the 1990 census) a non-Hispanic black voting age population of 57.1%, Hispanic black voting age population of 3.3%, and total black voting age population of 60.4%. This is more than five percentage points higher than the comparable numbers for new HD 108 under the 2000 census.
210. The percentage black voting age population and black total population in prior HD 108 increased during the decade of the 1990s. By the time of the 2000 census, prior HD 108 had a total black population of 68.1% and a total black voting age population of 64.3%—more than eight points higher than new HD 108—but there is no reason to believe that percentages that high were necessary for the district *1314 to perform for a black candidate of choice.
211. Prior HD 108 performed for the black candidate of choice in every election from 1992 through 2000. In 1994 and 1996, the incumbent (a black first elected in 1992) was unopposed. In 1998, the only two candidates were black; the incumbent won the Democratic primary and was unopposed in the general election. In 2000, the seat was open. Philip J. Brutus, who is Haitian-American and black, won the Democratic primary with over 63% of the vote against a single opponent. Mr. Brutus won the general election with over 81% of the vote, thus becoming the first Haitian-American to serve in the Florida legislature. [47]
212. The conclusion that HD 108 will perform for a black candidate of choice also is supported by the history of HD 118—a different district in the same county that has performed for black candidates of choice despite having a lower percentage of black voters. HD 118 performed for the black candidate of choice in each election from 1992 through 2000. According to the 1990 census, the black total population (34.6%) and black voting age population (31.6%) were substantially lower for prior HD 118 than the comparable numbers for new HD 108 under the 2000 census. So far as shown by this record, the likelihood that HD 108 will perform for black candidates of choice in the coming decade is higher than the likelihood would have been with respect to HD 118 based on information known in 1992. Prior HD 118 performed, and it is likely that new HD 108 will perform also.
213. Techniques of ecological regression and projection of future voting behavior that are reasonably reliable and accepted in the field of political science support the conclusion that HD 108 will perform for black candidates of choice. In a closed Democratic primary in which only a single candidate has substantial support among black voters, HD 108 is likely to perform for that candidate. None of the parties' analyses have projected a vote below 50% for the black candidate of choice in such an election. Defendants' projection of 52.0% is reasonable. See Speaker's Exh. 75-2, Table R6; Tr. 1334. Further, it is likely that the Democratic primary winner will prevail in any general election.
214. The virtually uncontested findings set forth in paragraph 213, without more, make it likely that HD 108 will perform for black candidates of choice, because if ever the ability of HD 108 to elect a black candidate of choice is in jeopardy, it is likely that the Democratic primary will be closed ( see supra paragraph 160), and it is likely that there will be a single black candidate of choice ( see supra paragraphs 161-162).
215. The likely margin by which HD 108 will perform for a black candidate of choice is not as high as that attending prior HD 108. For the two districts HD 108 and HD 118 combined, however, the likely performance for black candidates of choice has been enhanced; the likely performance of HD 118 for a black candidate of choice has been enhanced by more than the likely performance of HD 108 has been diminished.
216. In the unlikely event of an open primary in HD 108, a black candidate of choice likely would be competitive, but, other things being equal, would have less than an even chance of prevailing. Plaintiffs' projection that a black candidate of *1315 choice would draw 47.2% of the vote in such a primary is reasonable. See Pl. Exh. 81-C at 38, Table 13. Particular candidacies and particular issues could turn any such election either way.
217. In sum, HD 108 is likely to perform for black candidates of choice. The votes of blacks in HD 108 have not been diluted.
d. STATE HOUSE DISTRICT 118
218. According to the 2000 census, the non-Hispanic black population of new HD 118 was 43.1%, and the Hispanic black population was 2.0%, for a total black population of 45.1%. The non-Hispanic black voting age population was 39.9%, and the Hispanic black voting age population was 1.9%, for a total black voting age population of 41.8%.
219. Even with a 41.8% black voting age population, new HD 118 will afford black voters a reasonable opportunity to elect candidates of their choice and probably will in fact perform for black candidates of choice.
220. This is so in part because, according to 2000 data, blacks constitute 64.4% of registered Democrats in new HD 118, and Democrats constitute 61.8% of registered voters. Republicans constitute only 20.2% of registered voters. Actual voting also is overwhelmingly Democratic; in the 2000 presidential election, voters in new HD 118 voted 74.8% for Mr. Gore and 24.1% for Mr. Bush. A black candidate of choice is likely to win a contested Democratic primary, and the Democratic nominee is likely to win the general election.
221. The history of prior HD 118— which had different boundaries but the same core and similar demographics as the new HD 118—supports the finding that a 45.1% total black population and 41.8% black voting age population are sufficient to cause the district to perform for black candidates of choice. When first drawn in 1992, prior HD 118 had (according to the 1990 census) a non-Hispanic black population of 33.3%, Hispanic black population of 1.3%, and total black population of 34.6%. Similarly, when first drawn in 1992, prior HD 118 had (according to the 1990 census) a non-Hispanic black voting age population of 30.4%, Hispanic black voting age population of 1.2%, and total black voting age population of 31.6%. This is more than ten percentage points lower than the comparable numbers for new HD 118 under the 2000 census.
222. Prior HD 118 performed for the black candidate of choice in every election from 1992 through 2000. In 1992, a black candidate won a plurality in the initial Democratic primary, won the Democratic primary runoff with 63.2% of the vote, and won the general election with 62.7% of the vote. [48] In 1994, the incumbent was reelected without opposition. In 1996, the incumbent was unopposed in the Democratic primary and won with 64.5% of the vote in the general election. In 1998, the incumbent was unopposed in the Democratic primary and won with 63.0% of the vote in the general election. In 2000, there was an open seat. A first and second Democratic primary cut six candidates to one, who was black; [49] he in turn won the general election with only write-in opposition. [50]
*1316 223. Techniques of ecological regression and projection of future voting behavior that are reasonably reliable and accepted in the field of political science support the conclusion that HD 118 will perform for black candidates of choice. In a closed Democratic primary in which only a single candidate has substantial support among black voters, HD 118 is likely to perform for that candidate. None of the parties' analyses have projected a vote below 50% for the black candidate of choice in such an election. Further, it is likely that the Democratic primary winner will prevail in any general election.
224. The virtually uncontested findings set forth in paragraph 223, without more, make it likely that HD 118 will perform for black candidates of choice, because if ever the ability of HD 118 to elect a black candidate of choice is in jeopardy, it is likely that the Democratic primary will be closed ( see supra paragraph 160), and it is likely that there will be a single black candidate of choice ( see supra paragraphs 161-162).
225. In the unlikely event of an open primary in HD 118, a black candidate of choice likely would prevail, but an opposing candidate could be competitive. Plaintiffs' projection that a black candidate of choice would draw 51.3% of the vote in such a primary is reasonable. [51] Particular candidacies and particular issues could turn any such election either way.
226. There is no evidence that any constitutionally-permissible alternative to HD 118 could be drawn that would meaningfully improve the projected performance of this district for a black candidate of choice.
227. In sum, HD 118 is likely to perform for black candidates of choice. The votes of blacks in HD 118 have not been diluted.
e. STATE HOUSE DISTRICT 104
228. According to the 2000 census, the non-Hispanic black population of new HD 104 was 57.8%, and the Hispanic black population was 2.2%, for a total black population of 60.0%. The non-Hispanic black voting age population was 53.7%, and the Hispanic black voting age population was 2.2%, for a total black voting age population of 55.9%. Other things being equal, the 55.9% black voting age population will increase during the coming decade. [52]
229. Even with a 55.9% black voting age population, new HD 104 will afford black voters a reasonable opportunity to elect candidates of their choice and probably will in fact perform for a black candidate of choice.
230. This is so in part because, according to 2000 data, blacks constitute 64.1% of registered Democrats in new HD 104, and Democrats constitute 73.3% of registered voters. Republicans constitute only 12.1% of registered voters. Actual voting also is overwhelmingly Democratic; in the 2000 presidential election, voters in new HD 104 voted 86.5% for Mr. Gore and 12.7% for Mr. Bush. A black candidate of choice is *1317 likely to win a contested Democratic primary, and the Democratic nominee is likely to win the general election.
231. The history of prior HD 104— which had different boundaries but the same core and similar demographics as the new HD 104—suggests that a 60.0% total black population and 55.9% black voting age population are sufficient to cause the district to perform for black candidates of choice. When first drawn in 1992, prior HD 104 had (according to the 1990 census) a non-Hispanic black population of 56.5%, Hispanic black population of 2.3%, and total black population of 58.8%, lower than the total

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/2513250. Public record. Not legal advice.