# Jeffers v. Clinton

> District Court, E.D. Arkansas · January 26, 1990 · 730 F. Supp. 196

URL: https://www.frixlaw.com/law-library/cases/9705374

## Case

- **Full name:** M.C. JEFFERS, Al Porter, Evangeline Brown, Clyde Collins, O.C. Duffy, Earl Foster, the Rev. Elihue Gaylord, Shirley M. Harvell, Linda Shelby, J.C. Jeffries, Lavester McDonald, Joseph Perry, Clinton Richardson, T.E. Patterson, Earnest Simpson, Brian Smith, and Charlie Statewright, on Behalf of Themselves and All Others Similarly Situated, Plaintiffs, v. Bill CLINTON, in His Official Capacity as Governor of Arkansas and Chairman of the Arkansas Board of Apportionment; W.J. McCuen, in His Official Capacity as Secretary of State of Arkansas and Member of the Arkansas Board of Apportionment; And Steve Clark, in His Official Capacity as Attorney General of Arkansas and Member of the Arkansas Board of Apportionment, Defendants
- **Court:** District Court, E.D. Arkansas
- **Decided:** January 26, 1990
- **Citations:** 730 F. Supp. 196; 1989 WL 165247
- **Precedential status:** Published
- **Opinion:** Concurring in part
- **Judges:** Eisele, Arnold, Ei-Sele, Howard
- **Cited by:** 57 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/9705374

## How later opinions describe it (automated extraction)

- holding that the plaintiffs, 17 black electors, "demonstrated a violation of their rights under federal law” because the 1981 apportionment plan only created five majority-minority districts — "one in the Senate and four in the House” — when “a total of 16 such districts, thre…
- observing that any “expense, trouble, and disruption ... would have occurred whenever the suit was filed”

## Opinion text

concurring and dissenting. (Eisele # 2)
In a dissenting opinion filed on the 7th of December 1989, I set forth my belief that this entire proceeding should have been dismissed because the plaintiffs waited without excuse until 1989 to challenge the redistricting plan adopted in 1981 and because of the prejudice caused thereby to the defendants, the people in the affected areas, and, indeed, to the integrity and reliability of the Court’s fact-finding function itself. Acknowledging the broad discretion given the chancellor in such equitable proceedings, I nevertheless concluded that it would be an abuse of that discretion — as a matter of law — to permit this case to go forward under its unique facts and circumstances. My brothers disagree; so the case proceeds to resolution on the merits.
The only “merits” issue dealt with by the majority to date is whether plaintiffs established one or more violations of Section 2 of the Voting Rights Act. The constitutional and “intent” issues have been reserved for later resolution. And this opinion, in like manner, will be confined to the Section 2 issues. I dissent from the majority’s opinion on those Section 2 issues.
When the majority announced its findings and conclusions on the Section 2 issues, I indicated that I also believed that some Section 2 violations had been shown. However, as I further reviewed the law and the evidence, I have become convinced that plaintiffs failed to prove any Section 2 violations. This blanket conclusion is based upon my opinion that plaintiffs did not prove, in connection with any of the House or Senate districts, that the redistricting plan of 1981 resulted in blacks in those districts having less opportunity than others to participate in the political process. As a matter of law I have concluded that *227 plaintiffs must make that showing and that simply proving that blacks, as a result of the district lines, have less opportunity than others to elect candidates of their choice will not suffice. Upon the assumption that I am wrong in this conclusion, then I would agree that plaintiffs have shown a Section 2 violation with respect to at least one district and perhaps more. See Section VIII, infra.
The views I express here follow from, and are consistent with, opinions I have previously expressed in other voter rights cases coming out of Lee and Phillips Counties, the former involving justice of the peace districts in Lee County and ward districts in the city of Marianna and the latter involving a challenge to the state’s run-off law in primary elections. See Campbell v. Lee County Election Commission, H-C-86-48 (E.D.Ark.1986) and Whitfield v. Democratic Party of Arkansas, 686 F.Supp. 1365 (E.D.Ark.1988), rev’d in part, 890 F.2d 1423 (8th Cir.1989) (Bright, J., dissenting in part). I have also dealt with a challenge to multi-member districts in Pulaski County, under Section 2 as it was interpreted before the 1982 amendments. See Leadership Roundtable v. City of Little Rock, 499 F.Supp. 579 (E.D.Ark.1980).
I concur in the majority’s opinion that plaintiffs have not shown any Section 2 violations in connection with any of the district’s created in 1981 in Pulaski County, Arkansas.
OVERVIEW.
It is my view that many Voting Rights cases, such as this one, are changing the political landscape of America in fundamental ways without legislative mandate and without the benefit of scholarly legal and political discourse. In so doing these cases are, in an almost inadvertent manner, redefining the nature of our democratic form of government, contrary, I believe, to the Constitution.
Do we really believe in the idea of one political society or should this be a nation of separate racial, ethnic, and language political enclaves? Surely such issues are worthy of serious, focussed debate and discussion. Ironically, there has been precious little of either. I attribute this to inadequate awareness on the part of the courts, the Congress, and the people of this Nation. And, strange as it seems, it appears that some of those who are most involved with the voting rights cases are the least aware of the larger, long-range issues and consequences which are directly implicated.
When the Voting Rights Act was passed in 1965, its single aim was “black enfranchisement in the South. Obstacles to registration and voting, that is, were the sole concern of those who framed the statute.” A. Thernstrom, Whose Votes Count? Affirmative Action and Minority Voting Rights, 3 and 18 (1987) [Hereinafter “Thernstrom”]. See also 42 U.S.C. § 1973 et seq. With the Supreme Court’s decision in Allen v. State Board of Elections, 393 U.S. 544 , 89 S.Ct. 817 , 22 L.Ed.2d 1 (1969), the emphasis began to shift as the Court “implicitly enlarged the definition of enfranchisement,” making distinctions between “meaningless” and “meaningful” votes. Thernstrom at 4 and 22-24. Statutory amendments were enacted in 1982 empowering minorities to challenge any standard, practice, or procedure relating to elections on the ground of discriminatory “results.” 42 U.S.C. § 1973 (1982). Court decisions interpreting Section 2 in an effort to deal with electoral discrimination have exposed questions relating to the nature and structure of our government and the efficacy of majoritarian democracy. See, e.g., Whitfield, supra. Where are we now in 1990?
We have arrived at a point no one envisioned in 1965. The right to vote no longer means simply the right to enter a polling booth and pull the lever. Yet the issue retains a simple Fifteenth Amendment aura — an aura that is pure camouflage. An alleged voting rights violation today is a districting plan that contains nine majority-black [or Hispanic] districts when a tenth could be drawn. The question is: how much special protection from white competition are black candidates entitled to? For instance, when a *228 different plan might give a seat to another black, should the interests of white incumbents give way to the goal of minority officeholding? The temptation to provide maximum protection (a maximum number of seats) is strong and has been only intermittently resisted. * * * Dis-tricting plans are torn up following every decennial census. * * * There is thus a need to devise new plans, to determine when black ballots “fully count.” The phrase itself invites a definition that gives those ballots maximum weight, defined as officeholding; anything less suggests a compromised right. Yet maximum weight implies an entitlement to proportionate ethnic and racial representation — a concept that is no less controversial with respect to legislative bodies than with reference to schools and places of employment. Voting rights has become another immensely complex affirmative action issue, distinctive only in not being acknowledged as such.
The myth of moral simplicity has largely insulated the voting rights issue from debate, yet perhaps no other affirmative action question is more significant.
Thernstrom at 5-6. (Emphasis added)
My objective in formally stating my views in this dissent in such detail is not only to explain the law as I understand it but also to help open up the issues to legal, scholarly, popular and political debate, keeping in mind, as we must, that we are here dealing with the heart and soul of our democratic government. The issues raised in this case should be resolved before the 1990-1991 nationwide redistricting season begins.
I. SECTION 2 OF THE VOTING RIGHTS ACT: THE INTERPRETIVE FRAMEWORK.
The courts are thrust into what Justice Felix Frankfurter called a “political thicket” primarily as a result of Section 2 of the Voting Rights Act of 1965, as amended, 42 U.S.C. § 1973 . That section reads as follows:
(a) No voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color, or in contravention of the guarantees set forth in section 1973b(f)(2) of this title, as provided in subsection (b) of this section.
(b) A violation of subsection (a) is established if, based on the totality of the circumstances, it is shown that the political processes leading to nomination or election in the State or political subdivision are not equally open to participation by members of a class of citizens protected by subsection (a) in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice. The extent to which members of a protected class have been elected to office in the State or political subdivision is one circumstance which may be considered: Provided, that nothing in this section establishes a right to have members of a protected class elected in numbers equal to their proportion in the population.
I suggest that the federal courts have, in many eases, not followed the language of the Voting Rights Act or the U.S. Supreme Court’s opinions interpreting that Act and, as a consequence, have unwittingly crossed constitutional lines. This is one of those cases. Claiming simply to be giving a liberal interpretation to the language of the statute to effectuate its purposes, “judicial decisions [have been] shaped less by the statute than the statute by the decisions.” Thernstrom at 8-9. This approach has left judges without real guidance to, in effect, “do right” in this most sensitive of areas, where what is “right” is far from clear.
Congress and the courts have declared that members of minority groups are entitled to “an equal opportunity to elect representatives of their choice.” What does that high-sounding phrase really *229 mean? Who counts as a “representative of their choice,” and when are opportunities truly equal? If the ballots of white Democrats in an overwhelmingly Republican county “count,” if Democrats who are never able to elect “candidates of their choice” are nevertheless fully enfranchised, what about black Democrats when no black ever wins? Are blacks and Hispanics ever properly represented by whites? Are black candidates who run as part of a white-dominated ticket consequently “white” candidates? Do socioeconomic disparities between whites and blacks mean that members of the two groups stand on unequal political footing, and that compensation in the form of special protection in the electoral process is appropriate?
Thernstrom at 6-7.
The grammar of Section 2 and the ordinary meaning of its words and phrases have taken second place to the felt need to remedy all perceived wrongs in the political processes through which we give expression to the “republican form of government” that is guaranteed to every state by the Constitution of the United States. See U.S. Const, art. IV, § 4. Although the language of Section 2(a) proscribes those things which result in a denial or an abridgement of the “right to vote,” cases such as this carry us far beyond any possible issues concerning each citizen’s “right to vote” to the new world of “group rights” to proportionate representation. Care must, therefore, be taken that in an effort to insure individual or even “group” rights, we do not undermine — perhaps unconstitutionally undermine — the basic principles of our democratic government.
So, while I agree with the majority that, “the statute should be construed liberally in favor of its object,” I would not state that object quite as broadly as they do, to wit: “to open up the electoral process to full participation.” Majority op. at 204. Rather, I would say the purpose of Section 2 in the context of this case is to prohibit states and other political subdivisions from imposing or applying any standard, practice or procedure which results in black citizens’ having less opportunity than others to participate in the political process and to elect representatives of their choice. It is the “opportunity” of blacks “to participate” and “to elect” to the same extent as other members of the electorate that may not be denied or abridged by some state created or applied barrier. In my view, a “liberal construction” (or, for that matter, a “conservative construction”) is only available where the language of the statute permits more than one reasonable interpretation. In connection with the issues we are called upon to resolve in this case, it is my opinion that the language of Section 2 and the decisions of the United States Supreme Court give adequate guidance. We need look no further for some liberal construction consistent with the Act’s remedial purposes. We should simply rigorously apply the law. And, if after so applying the statute we are still left with constitutional problems, so be it. We must then simply face up to the need to deal with them.
I will in the course of this opinion attempt to point out where the majority has departed from this standard of rigorous statutory construction in its resolution of the issues.
A. A Walk Through the Statute.
By suggesting that the language of Section 2 is clear, I do not overlook the convoluted grammatical arrangement thereof which requires the reader to carefully follow the succession of phrases by which the statute “reinterprets” itself.
Subsection (b) of Section 2 makes it clear that the operative provisions of Section 2 are contained in subsection (a). In other words, the question always is whether the challenged standard, practice or procedure (hereinafter SPP) violates subsection (a). We know this because subsection (b) merely refers back to subsection (a) by use of the following introductory language: “A violation of subsection (a) is established if....” So the basic question which courts are asked to answer in applying Section 2 is whether the SPP is being imposed or applied “in a manner which results in a denial or abridgement of the right of any *230 citizen ... to vote on account of race_” If it is decided that the challenged SPP does not result in a denial of the right of any citizen to vote on account of race, then the court must determine whether that SPP results in an “abridgement of the right of any citizen to vote on account of race.” In this context, it is assumed that “abridge” would mean to curtail, limit, or burden. In any event, we are dealing with the right to vote, either its denial or its curtailment or limitation.
As pointed out above, subsection (b) of Section 2 identifies what is necessary to establish a violation of subsection (a). Of course, it is assumed that there should be some logical nexus between the showing identified in subsection (b) and the “denial or abridgement” language of subsection (a). According to subsection (b), a denial or abridgement of the right to vote “is established if ... it is shown that the political processes leading to nomination or election ... are not equally open to participation by members of ...” a protected class.
It is easy to determine whether a SPP denies any citizen the right to vote. If not, subsection (b) states that a showing that the “political processes” are not “equally open to participation,” because of the challenged SPP, would nevertheless be adequate to establish that the SPP abridged the right to vote. So we look at the SPP and determine if it has resulted in the political process “not being equally open to participation” by black citizens. If it did not have that effect, then, logically, one would conclude no violation.
But subsection (b) of Section 2 has another phrase that must be dealt with. It, in effect, states that a showing can be made that the challenged SPP has caused the political process “not to be equally open to participation” by black citizens if it can be shown that such black citizens “have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.”
So, if the challenged SPP does not cause black citizens to “have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice,” then it cannot be found that such SPP causes the political processes “not to be equally open to participation” by black citizens and, therefore, finally, there would be no violation of the operative language in subsection (a), i.e., the “abridgement of the right of any citizen ... to vote on account of race.”
Absent a showing that the challenged SPP resulted in the denial of a citizen’s right to vote, the first inquiry, then, will be whether that SPP caused blacks to have “less opportunity than other members of the electorate to participate in the political processes and to elect representatives of their choice.” 5
B. To Make Out A Section 2 Violation, Must Plaintiffs Prove Both Of The Following: That, As A Result Of The 1981 District Lines, Blacks (1) Have Less Opportunity To Participate In The Political Processes; and (2) Have Less Opportunity to Elect Representatives of their Choice?
The defendants argue that, under the plain language of Section 2(b), plaintiffs must show two separate things: “(1) that they have less opportunity to participate in the political processes; and (2) that they have less opportunity to elect representatives of their choice.” The majority opinion responds:
Moreover, the argument fails purely as a logical and linguistic matter. Even if plaintiffs failed to show less opportunity to participate in the political process, a showing that they have less opportunity *231 to elect candidates of their choice would suffice to establish their claim. The right protected is the aggregate of these opportunities — the right to effective participation in the political system....
I agree that statute would permit the interpretation placed on it by Judge Arnold if it were proper to speak of the “aggregate of these opportunities” as constituting the “right to effective participation in the political system.” But the statute nowhere speaks of “the right to effective participation”; and the history of the act and the plain language of the statute strongly argue for the necessity of proving both.
If black citizens in the legislative district involved have as great an opportunity to vote and otherwise to participate in the political process as others, then their failure to elect candidates of their choice would be simply a function of the democratic process — no different from the fate of Republicans who consistently lose in a majority-Democratie district.
And, of course, if the black plaintiffs prove that the challenged SPP results in their having less opportunity to participate in the political process, then that would, in the usual case, automatically prove that that SPP also resulted in their having less opportunity to elect representatives of their choice. Ergo, a Section 2 violation. But the proof that the SPP results in blacks having less opportunity to elect candidates of their choice would not necessarily say anything about their opportunity to participate in the political process.
It is my view that Congress never intended that a simple showing that a challenged SPP resulted in a minority group’s having less opportunity to elect representatives of their choice would suffice to establish a Section 2 claim in a districting case. Otherwise, it would be self-proving. If the district lines result in blacks being a minority voting age population (VAP), they clearly will have less opportunity than others to elect candidates. But it may be argued that the plaintiffs would at least have to show that, across the district lines, there were other blacks and that the lines could have been drawn to make the blacks the majority. But this is just judicial “fault” reasoning. How can blacks claim that the Board was at fault in drawing the lines so that they are a minority VAP in the district if the Board had no alternative? (This is no doubt the type of rationale that was responsible for the development of the Thornburg “preconditions.” We lawyers and judges seek reasonable interpretations.) But, first, we must admit that under a “results” test any time district lines are drawn so that blacks are a minority VAP, those lines result in blacks having less opportunity than others to elect candidates of their choice. This is true whether or not the district lines could have been drawn to make blacks the majority VAP.
So I disagree with Judge Arnold. I believe that Congress intended to require proof in all cases that the challenged SPP resulted in blacks or Hispanics having less opportunity than others to participate in the political process. I do not agree that proof that the challenged SPP resulted in blacks having less opportunity to elect candidates of their choice will alone suffice.
C. Introducing the “Zimmer” and “Senate” Factors.
Having illustrated the difficulties with the grammar, language, and structure of Section 2, we are left to deal — preliminarily at this point — with the effect of the “Zim-mer” or “Senate” factors in this interpretative process. As explained earlier, with respect to the Voting Rights Act’s “results tests,” the Senate purports to certify certain “typical factors” that may establish whether the challenged SPP has a discriminatory effect. Those factors are:
1. the extent of any history of official discrimination in the state or political subdivision that touched the right of the members of the minority group to register, to vote, or otherwise to participate in the democratic process;
2. the extent to which voting in the elections of the state or political subdivision is racially polarized;
3. the extent to which the state or political subdivision has used unusually large election districts, majority vote re *232 quirements, anti-single shot provisions, or other voting practices or procedures that may enhance the opportunity for discrimination against the minority;
4. if there is a candidate slating process, whether the members of the minority group have been denied access to that process;
5. the extent to which members of the minority group in the state or political subdivision bear the effects of discrimination in such areas as education, employment and health, which hinder their ability to participate effectively in the political process;
6. whether political campaigns have been characterized by overt or subtle racial appeals;
7. the extent to which members of the minority group have been elected to public office in the jurisdiction;
Additional factors that in some cases have had probative value as part of plaintiffs’ evidence to establish a violation are;
whether there is a significant lack of responsiveness on the part of elected officials to the particularized needs of the members of the minority group;
whether the policy underlying the state or political subdivision’s use of such voting qualification, prerequisite to voting, or standard, practice or procedure is tenuous.
5.Rep., at 28-29, U.S.Code Cong. & Admin. News 1982, pp. 206-07. Since the 1982 amendments, federal courts have almost unanimously felt the need to make the findings suggested by these “factors” whether or not they had any real relevance to the issues at hand.
Substantive due process issues may arise when there is a lack of scientific or “true” relevance between such factors and the “fact” they are intended to establish. To make the point by an absurd example, suppose the Senate had added the following factor: “The extent to which members of the minority group drink coffee.” Proof of this “factor” — one way or the other — could not give rise to any inference upon which it could properly be decided whether the minority group, because of the challenged SPP, had “less opportunity than other members of the electorate to participate in the political processes and to elect representatives of their choice.” I suggest that some of the actual Senate factors may have no more relevance than this hypothetical “coffee drinking” factor. 6 It is my opinion that some federal courts have decided “Section 2 cases” on the basis of these factors without any but token reference to the precise language of that statute and, as a consequence, have reached conclusions at odds with the clear language thereof. See further discussion under Section V, infra.
Having identified some of the interpretive problems with which courts must attempt to deal in disposing of Section 2 claims, I turn to certain specific disagreements which I have with my brothers. But first: the outer limits.
II. CONSTITUTIONAL LIMITATIONS: USE OF “REPUBLICAN FORM OF GOVERMNENT” GUARANTEE OF ARTICLE IV, SECTION 4, U.S. CONSTITUTION.
Are there any constitutional provisions which protect certain voting or election standards, practices or procedures (SPPs) from effective challenge under Section 2, as amended? Stated otherwise, should federal courts in handling Section 2 challenges be sensitive to potential constitutional limitations or problems beyond those contained in the Fifteenth Amendment? It is my view that they should be. But rarely do we see evidence of such sensitivity. Even when enumerating a litany of “risks” involved in the application of Section 2, we do not find any suggestion of such constitutional limitations. Take the following language from the district court’s opinion in Gingles v. Edmisten, supra at 345, 356:
*233 In making that political judgment, Congress necessarily took into account and rejected as unfounded, or assumed as outweighed, several risks to fundamental political values that opponents of the amendment urged in committee deliberations and floor debate. Among these were the risk that the judicial remedy might actually be at odds with the judgment of significant elements in the racial minority; the risk that creating “safe” black-majority single-member districts would perpetuate racial ghettos and racial polarization in voting behavior; the risk that reliance upon the judicial remedy would supplant the normal, more healthy processes of acquiring political power by registration, voting and coalition building; and the fundamental risk that the recognition of “group voting rights” and the imposing of affirmative obligation upon government to secure those rights by race-conscious electoral mechanisms was alien to the American political tradition.
The suggestion is, I suppose, that, if there are constitutional problems, they are only for the Congress — not the courts — to deal with. I disagree.
For example, consider the attack raised in Whitfield, supra, on the majority vote requirement. That attack is pertinent here too because the plaintiffs in this case also point to that requirement of the Constitution and various statutes of the state of Arkansas, in an effort to show not only discriminatory intent, but also that the majority vote runoff requirement, in fact, discriminates against blacks by virtue of its effect. I suggest that Senate Factor No. 3, unhappily, practically invites such an attack. That Senate Factor identifies “majority vote requirements” as one of those “voting practices or procedures that may enhance the opportunity for discrimination against the minority.” The Senate Factor, in effect, asks courts to determine “the extent to which the state or political subdivision has used ... majority vote requirements....” The obvious suggestion is that if the state has used the requirement to a great extent, it should be assumed to have a discrimination-enhancing effect.
It is clear beyond question that the people of Arkansas have chosen, through their state constitution and through the acts of their state legislature, to use the “run-off,” “majority vote” requirement in most primary and general elections.
Of course, in one sense, it can be stated that majoritarian democracy always discriminates against political minorities. But surely that is not the sense in which the Senate used its reference to “majority vote requirements.” As explained in Whitfield, supra, run-off requirements do not have the effect of discriminating against blacks, even taken as a politically cohesive group. But let us assume that such requirements do have such an effect, as a panel of the Eighth Circuit has now decided in partially reversing this Court’s Whitfield decision. See ADDENDUM, infra. It is fair to ask: are not some things “off limits” or “non-negotiable” in our political system? 7
Mr. Justice Frankfurter cautioned the courts to steer clear of political questions. *234 His views are well described by Ms. Thernstrom:
What had actually been asked of this Court, he said, was nothing less than “to choose among competing bases of representation — ultimately, really, among competing theories of political philosophy.”
Justice Frankfurter was convinced that courts and politics did not mix, and that political choices (beyond the competence of judges) were an inevitable component of every apportionment decision. That is, the means by which political influence was distributed inescapably suggested an end. To choose a particular distributive principle was to adopt a particular definition of democratic government. In every apportionment rule there lurked an implicit theory of representation, and no ease of alleged malapportionment could be judged without such a theoretical framework. That is, the means not only suggested an end, but without a carefully delineated end, appropriate means remained uncertain. Lacking clearly articulated political values, Frankfurter asked, how could courts judge the equity of particular contested district lines? Without settled standards, how could judges weigh such competing considerations as the desirability of population equality, the value of an experienced incumbent, the need to honor community integrity or to provide a strong rural voice despite a sparse rural population?
Thernstrom at 64.
The Supreme Court nevertheless did get into the political thicket but only in a limited, non-comprehensive manner. The Court went far enough to decide that “one-person, one-vote” is required by the equal protection clause. This holding could be said to give real substance to the meaning of “Republican Form of Government,” but the Court specifically eschewed Section 4 of Article IV, U.S. Constitution, as a predicate for its decision. The Court was able to announce this “one-person, one-vote” standard without precisely describing what practices are, and are not, essential to our democratic form of government. But, now, facing such attacks as the one upon the majority-vote requirement, can the courts still refuse to identify what is essential, and what is not essential, in our system of democratic government?
All of which leads me directly to a consideration of Article IV, Section 4 which provides, in part: “The United States shall guarantee to every State in this Union a Republican Form of Government....” Why has not this provision of our Constitution, which more clearly deals with the type of state government contemplated by the founders than any other, been the prolific source of great Supreme Court decisions, giving form and content to that which is essential in our democratic form of government? The answer will be found in a review of a few important decisions.
From Luther v. Borden 48 U.S. (7 How.) 1 , 12 L.Ed. 581 (1849) until Baker v. Carr, supra, it was accepted by the Justices of the Supreme Court that the Republican Form Clause can only be enforced by Congress. In Luther , the issue before the Court was which government of Rhode Island should be recognized as the legitimate state administration following the insurrection of 1841-42. The plaintiff brought a suit in trespass challenging the legality of a martial law decree under which the charter government’s soldiers had invaded her home. She claimed the decree was invalid because the state government had been overthrown by popular convention. Justice Taney refused to review the case finding that only Congress had the power to decide questions of state legitimacy. Thus was born the political question doctrine.
Professor John Hart Ely opines that while Luther was correctly decided, it was “a gross mistake of logic to infer, as subsequent cases did, that all cases brought under the Republican Form Clause must therefore also present political questions.” Ely, Democracy and Distrust p. 118 (1980).
The next large leap in the evolution of the political question doctrine came in Pacific States Telephone & Telegraph Company v. Oregon, 223 U.S. 118 , 32 S.Ct. 224 , 56 L.Ed. 377 (1912) in which Chief Justice *235 White found a utility company’s challenge to a tax law passed by referendum to be a political question. Extending Justice Taney’s reasoning, Chief Justice White declared that there was no judicial power to review any cases under the Republican Form Clause.
In Baker, supra, one of the seminal cases in the voting rights area, Justice Brennan concluded that state legislative apportionment was only justiciable under the Equal Protection Clause of the Fourteenth Amendment, the Republican Form of Government Clause being essentially a dead constitutional letter lacking standards to guide the Court’s discretion. Justice Frankfurter in his dissent, commented that the Baker claim was, in essence, a “Guarantee Clause claim masquerading under a different label.” He said:
The present case involves all of the elements that have made the Guarantee Clause cases non-justiciable. It is, in effect, a Guarantee Clause claim masquerading under a different label. But it cannot make the case more fit for judicial action that appellants invoke the Fourteenth Amendment rather than Art. IV, § 4, ...
Baker 369 U.S. at 297, 82 S.Ct. at 754.
In a rare post-Baker case, Kohler v. Tugwell, 292 F.Supp. 978, 985 (E.D.La.1968), a three judge panel reached the merits of the Republican Form Clause claim that a confusing ballot to adopt a state constitutional amendment was constitutionally offensive. While ultimately finding that the ballot was not constitutionally infirm Judge Minor Wisdom, writing for the majority, found that the Republican Form Clause was incorporated in the due process clause and noted in dictum: “Federal courts should be loathe to read out of the constitution as judicially nonenforceable a provision that the Founding Fathers considered essential to formulation of a workable federalism.” (Emphasis in original)
Has not the time arrived for the courts to take up and interpret the meaning of “a Republican Form of Government?” Put otherwise, can we really avoid such an interpretive process in the light of attacks such as the ones being made in this case? If the federal courts order a ban on run-off elections, or order proportional representation, are they not sub silentio ruling that such orders are constitutional? (Surely they would not enter such orders if they believed their actions in so doing would offend the U.S. Constitution.)
The language of the clause itself urges that we challenge Congress’ exclusive power to act under the Republican Form Clause. The clause states: “The United States shall guarantee to every State in this Union a Republican Form of Government.” U.S. Const, art. IV, § 4. If the framers had intended to leave enforcement solely to the Congress, the clause should have specified “Congress” as the guarantor of such rights as it does in four other occasions in Article IV where Congress’ power is exclusive. Instead, “the United States,” presumably through all of its coordinate branches, is charged with this responsibility. Even Justice Frankfurter, while agreeing with what he viewed as a general prohibition against federal courts’ becoming fora for “political debate,” recognized that Article IV did not limit the enforcement thereof to the Congress. He states:
Art. IV, § 4, is not committed by express constitutional terms to Congress. It is the nature of the controversies arising under it, nothing else, which has made it judicially unenforceable. Of course, if a controversy falls within judicial power, it depends “on how he [the plaintiff] casts his action,” ... whether he brings himself within a jurisdictional statute. But where judicial competence is wanting, it cannot be created by invoking one clause of the Constitution rather than another. When what was essentially a Guarantee Clause claim was sought to be laid, as well, under the Equal Protection Clause ... the Court had no difficulty in dispelling any mere confusion resulting from forms of expression, and considering the substance of things....”
Here appellants attack “the State as a State,” precisely as it was perceived to be attacked in the Pacific States [Tele *236 phone & Telegraph Co. v. Oregon ] case, id. [ 223 U.S. 118 ], at 150, 32 S.Ct. [224] at 231 [ 56 L.Ed. 377 (1912)]. Their complaint is that the basis of representation of the Tennessee Legislature hurts them. They assert that a “minority now rules in Tennessee,” that the apportionment statute results in a “distortion of the constitutional system,” that the General Assembly is no longer “a body representative of the people of the State of Tennessee,” all “contrary to the basic principle of representative government_” Accepting appellants’ own formulation of the issue, one can know this handsaw from a hawk. Such a claim would be non-justiciable not merely under Art. IV, § 4, but under any clause of the Constitution, by virtue of the very fact that a federal court is not a forum for political debate. Massachusetts v. Mellon [ 262 U.S. 447, 485 , 43 S.Ct. 597, 600 , 67 L.Ed. 1078 (1923)], supra.
Baker 369 U.S. at 298, 82 S.Ct. at 754. This last-stated, old view is weakening and should be reexamined. In any event, the idea that Section 4 of Article IV should be enforced only by the Congress is suspect. It should also be reexamined and, I suggest, abandoned.
The meaning of a “republican” government to the author of the clause, James Madison, indicates that the clause is the most logical source for judicial review of cases relating to voting. In The Federalist No. 39 at 100 (New Amer. Lib. ed. 1961), he stated that a republican government “derives all its powers directly or indirectly from the great body of the people.” And the heated debates about the possible “tyranny of the majority” are known to all. The inference of majority election of representatives appears quite obvious. 8
Justice Douglas, in his concurring opinion in Baker, also found the abdication of judicial power over all cases involving voting rights an absurd extension of the erroneous holding in Luther . In reviewing the Constitution for voting rights, Justice Douglas focussed on the Republican Form Clause. “So far as voting rights are concerned, there are large gaps in the Constitution. Yet the right to vote is inherent in the republican form of government envisaged by Article IV, Section j of the Constitution.’’ Baker, supra at 242, 82 S.Ct. at 723, (Douglas, J., concurring) (Emphasis added).
Finally, the current awkward and unsatisfying analyses of reapportionment cases argue for a revival of the Republican Form Clause as a basis for review. Professor John Hart Ely writes:
In fact it seems likely that this unfortunate doctrine — that all Republican Form cases are necessarily cases involving political questions — will wholly pass from the scene one of these days. Friend and foe alike have come to recognize the obvious, that although the various state voting rights cases decided by the Warren and Burger Courts have been styled as equal protection decisions, they cannot comfortably be understood without a strong injection of the view that the right to vote in state elections is a rather special constitutional prerogative, a view that cannot be teased out of the language of equal protection alone and in textual terms is most naturally assignable to the Republican Form Clause.
Ely, supra, at 118. See also Bork, Neutral Principles and Some First Amendment Problems, 47 Ind.L.J. 1, 19 (1972). I agree. And, although I believe that a proper interpretation of Section 2 as applied to the facts here avoids most constitutional problems, I am convinced that the majority’s opinion does transgress constitutional limits by recognizing and enforcing “group affirmative political rights” and, in effect, requiring proportional representa *237 tion based upon race — all without an adequate legitimate factual predicate — in violation of the due process clause, the equal protection clause and Section 4 of Article IV.
III. HAVE PLAINTIFFS SHOWN THAT THE 1981 DISTRICTING PLAN RESULTS IN BLACKS HAVING LESS OPPORTUNITY THAN OTHERS TO PARTICIPATE IN THE POLITICAL PROCESS?
How does the majority deal with the defendants’ argument that the plaintiffs cannot show that they “have less opportunity than other members of the electorate to participate in the political process.” Judge Arnold, for the majority, appears to acknowledge that, “there are no presently existing legal barriers to voting by black citizens in Arkansas.” Majority Op. at 204. But he nevertheless concludes that they do not have as much opportunity to participate in the political process as anyone else because of “the present effects of past racial discrimination, much of it official and governmental.” Majority Op. at 204. The proof that he relies upon is principally supplied by the court’s taking judicial notice of a finding in Smith v. Clinton, 687 F.Supp. 1310, 1317 (E.D.Ark.1988) af f'd mem., — U.S. -, 109 S.Ct. 548 , 102 L.Ed.2d 576 (1988), to wit:
We further find that the history of discrimination has adversely affected opportunities for black citizens in health, education and employment. The hangover from this history necessarily inhibits full participation in the political process.
I disagree with this type of “bootstrapping,” but I also have more fundamental objections. First, Section 2(b) requires a cause and effect showing that the challenged SPP is responsible for blacks having “less opportunity than other members of the electorate to participate in the political process.” The finding in Smith, means that neither present legal barriers nor the districting plan formulated by the Board of Apportionment in 1981 is responsible for blacks having “less opportunity than other members of the electorate to participate in the political process.” Rather, it is the present effects of past discrimination in health, education and employment. Stated otherwise, the opportunity of blacks to participate in the political process would be the same regardless of the manner in which the Board drew the district lines. (This is different from the question whether the line drawing by the Board affected the opportunity of blacks “to elect candidates of their choice.” I agree with the majority that in some instances the line drawing by the Board in 1981 did affect the opportunity of blacks to elect candidates of their choice. But it is very important analytically to deal separately with the issue of the opportunity "to participate” and the issue of the opportunity “to elect.”)
The majority would probably reply, as certain other federal courts have, that we must look at the “interaction” of the SPP with impairments blacks suffer as a result of prior discrimination to determine if that SPP results in blacks having less opportunity to participate in the political process. This is linguistic legerdemain. Clearly it is not the line drawing by the board — the SPP here — which “results” in blacks having less such opportunity; rather, it is the diminished socio-economic status found to have resulted from prior discrimination. 9 And Section 2 does not purport to give a remedy solely on the latter basis. At the risk of argumentative overkill, assume the Board had drawn the district lines exactly as plaintiffs now request. Would the opportunity of blacks “to participate” be any dif *238 ferent? Clearly not. This error in analysis I identify as the source of so much unnecessary intellectual conflict in the “voting rights” cases and as the principal source of the misuse of certain of the Zimmer or Senate factors.
Is not all of this obvious? The socio-eco-nomic condition of blacks in any given area — whatever it is — will always be a “given” in any voting rights challenge. And, unfortunately in this country, from sea to sea, blacks, although making significant progress, still suffer adverse effects in education, the economic arena and health, and, on a statistical basis, are simply not as well off as non-blacks in our society. So, if one accepts that being poor, uneducated, unhealthy, etc., decreases one’s “opportunity to participate” in the political process, then there will be no voting SPP which will be immune from attack. Elections per se could be as readily attacked! And, although no one has pushed that far yet, again note the plaintiffs’ success in the Eighth Circuit Court of Appeals in attacking a “runoff, majority-vote” statute. Whitfield v. Democratic Party of State of Arkansas, supra.
This Court (the U.S. District Court) in its Whitfield opinion discussed this problem. After quoting Senate Factor No. 5, see supra, p. 1384, the Court stated:
This is also a “given” for the state of Arkansas and Phillips County and probably for every other political subdivision in the nation. But the effects are more devastating in Phillips County than in other places because of the dire economic circumstances that have developed in that area of the state over the past decade. Although the court is finding that blacks still bear the effects of discrimination in such areas as education, employment, and health, nevertheless, the Court also finds that those effects should not hinder their ability to participate effectively and equally in the political process. The Court also notes that typical factor # 5 refers to the “ability to participate” rather than “opportunity” to participate as stated in the statute. The statutory language, not being ambiguous, controls. The effects of discrimination referred to do not, in any legally significant way, hinder the “opportunity” or, indeed, the ability of blacks to participate effectively in the political process.
S}! SjS Sji # >jC %
And they can demonstrate that not having a telephone or an automobile makes it more difficult and less convenient for a citizen to qualify for, and to exercise, his or her voting rights. The tricky words are “difficult” and “inconvenient.” _ But ordinary inconveniences such as one might experience if he wished to go to the doctor’s office or to the post office or the general store should not be deemed to constitute legal barriers simply because the objective is to get to the voting place. The value one places on one’s rights to vote will be reflected in the difficulties and inconveniences overcome in exercising that right.
Whitfield, supra, at 1384-85. See also Butts v. City of New York, 779 F.2d 141 , 149 and n. 4 (2d Cir.1985), cert. denied, 478 U.S. 1021 , 106 S.Ct. 3335 , 92 L.Ed.2d 740 (1986) (Section 2 does not employ a “difficulty of victory” test).
I conclude here, as I did in Whitfield, that the residual effects of past discrimination in such areas as education, employment and health' do not in any legally significant way hinder the “opportunity” or, indeed, the “ability” of blacks to participate effectively in the political process.
So, since I agree with the defendants that plaintiffs, to succeed under Section 2(b), must, inter alia, prove the following two separate things, i.e., (1) that they have less opportunity to participate in the political process, and (2) that they have less opportunity to elect representatives of their choice, I conclude that the plaintiffs have failed to establish any Section 2 violations here. 10 However, if I agreed with the ma *239 jority that a simple showing that blacks have “less opportunity to elect candidates of their choice” would suffice, I would end up by concluding that plaintiffs have shown at least one Section 2 violation. See discussion, House District 100 in Section VIII C, infra. On the surface, this limited showing would appear easy to make, but the “preconditions” required by Thornburg alert us to the real difficulties. See Section V, infra. Before dealing with those preconditions,- it is necessary to consider the “opportunity to elect” language in greater depth.
IV. HAVE PLAINTIFFS SHOWN THAT THE 1981 DISTRICTING PLAN RESULTS IN BLACKS HAVING LESS OPPORTUNITY THAN OTHERS TO ELECT CANDIDATES OF THEIR CHOICE?
This provision of Section 2 is comparatively straightforward. Of course, if race is used to define politics and we assume only two parties, blacks and whites, then if district lines are drawn so that blacks constitute a majority of the voting age population (hereafter “VAP”), we can say that the lines do not result in blacks having less opportunity to elect candidates of their choice. But if lines are drawn so that blacks are not a VAP majority, we can say that the lines as drawn result in blacks having less opportunity to elect candidates of their choice. Note that the socio-eco-nomic status of blacks is a constant. The variable is where the district lines are placed: (a) Majority Black or (b) Majority White. Does this mean that every district drawn so that blacks are a VAP minority violates Section 2? No, because before one gets to this question, he or she must ascertain whether the Thornburg preconditions are satisfied. See Section V, infra. But if the Thornburg preconditions are satisfied, then the result will follow automatically regardless of the socio-economic condition of the blacks or the whites in the area. There is nothing in Section 2 that states that if the blacks in the district are richer, better educated and healthier than whites, they will not be entitled to the benefits of the law.
While I have agreed with my brothers that the percentages of VAPs are critical in determining what is, or what is not, a “majority” or a “minority,” I must nevertheless acknowledge that there is a certain lack of realism in that approach. In the areas of the state of Arkansas challenged in this lawsuit, as well as in practically all other areas of the United States, the number of persons who actually vote, black and white, is far below the number of those of voting age and also far below the number of those registered to vote. So, when we talk about political districts which have VAPs for blacks or whites ranging between 30 and 70 percent, we may be overlooking the reality that a much smaller percentage of black or white voters can determine the outcome of the usual election. We will take an example.
In Phillips County, Arkansas, according to the 1980 census figures, there were a total of 22,110 persons aged 18 and older, of which 11,542 were white and 10,393 were black. 11 So, the black VAP was 47 percent. Plaintiffs’ Exhibit 31, Table 45.
In the Democratic preferential primary held on March 8, 1988, Mr. Whitfield, a black, ran against several whites and led *240 the ticket with 3,465 votes. The combined votes of his white opponents totaled 5,812. Plaintiffs’ Exhibit 61pp. The evidence establishes strong racial voting polarization in Phillips County. Let us therefore assume that only blacks voted for Mr. Whitfield and only whites voted for his opponents. If that were the case, Mr. Whitfield received only 33.3 percent of the black YAP and the white candidates combined received 50.3 percent of the white VAP. Then, under Arkansas law, there was a runoff on March 22, 1988. At that runoff, Mr. Whitfield received 3,439 votes and his opponent, Mr. Stoner, a white, received 4,839 votes. Plaintiffs’ Exhibit 61oo. On the assumption made above, Mr. Whitfield received 33.08 percent of the voting age black population and Mr. Stoner received 41.9 percent of the white voting age population. Thus, it will be seen that if Mr. Whitfield received 1,401 more black votes in the runoff, he would have won. That would have given him a total of 4,840 votes, which is only 46.57 percent of the voting age blacks in the county.
The point is: because of the dismally low participation of Americans, black and white, in exercising their voting rights, a small, but active, minority could easily win most local races over a much larger nonparticipating majority. However, if racial polarization is established, then one could not safely predict that an actively participating minority would consistently overcome the majority. The minority might “slip up” on the majority one or two times, but the suggestion is that the majority would soon respond in kind. This rationalization at least tends to justify our choice of VAPs as the critical figures because those figures tend to set “per possibility” outside limits. 12 But, when the VAPs of blacks or whites range from 45 to 55 percent, say, the fact that one or the other group might be the “minority” on a VAP basis will not alone explain the success or failure of the black or the white candidates who have opposed each other in elections past.
For the reasons I detail in Section VIII of this opinion, infra, I find that the plaintiffs have shown that the 1981 district lines did result in blacks having less opportunity than others to elect candidates of their choice with respect to seven of the House districts. However, since, as I explain elsewhere, that is not all plaintiffs have to prove to establish Section 2 claims, I conclude that plaintiffs have not met their burden even with respect to these seven House districts. See discussion, Section III, supra.
V. THE THORNBURG FACTORS.
The majority opinion herein identifies the Thornburg factors required to be established as a predicate for a vote-dilution claim:
In evaluating a Section 2 claim, the Court must first determine whether three preconditions to a legally substantial impairment of plaintiffs’ ability to elect the candidates of their choice have been met. First, the claimant minority must establish that it is sufficiently large and geographically compact to constitute a majority in a single-member district. Second, the plaintiffs must show that the group to which they belong is politically cohesive. Thornburg, 478 U.S. at 50-51, 106 S.Ct. at 2766-67. Third, the minority voters must show that the “majority votes sufficiently as a bloc to enable it — in the absence of special circumstances, such as a minority candidate running unopposed ... to defeat the minority’s preferred candidate.” Id. at 51, 106 S.Ct. at 2766. The latter two factors can be shown by proving that voting in the jurisdiction is highly racially polarized. Ibid. Accord, Smith, 687 F.Supp. at 1314-1315 .
Although the majority aptly states the three critical factors, it does not, in my opinion, rigorously apply them to the facts of this case; nor does it adequately explore the interrelationships among those factors.
*241 A. Political Cohesiveness.
1. Black Voting Behavior.
It is clear that the majority opinion does not conduct the intensely fact-specific appraisal required by Gingles. It has not systematically studied the separate groups of black citizens projected for incorporation into the proposed new districts to determine if they, taken together, constitute a “politically cohesive” group. This, however, is understandable.
The Section 2 law in this “gerrymandering” (districting or redistricting) area developed as a negative proscription. The law prohibits “fragmenting” or “packing” cohesive political groups of black citizens with the effect of diluting their voting power. 13 The law did not develop in the context of affirmative obligations to reach out and include larger numbers of black citizens in order to enhance black political power. In other words, the mandate was “you shall not harm” rather than “you shall help.” When dealing with the negative proscription, the issues were simple and straightforward. If blacks possessing majority political power in a single district were divided into two districts, in each of which they constituted a minority, everything was quite simple and straightforward. Or, if one, say, took two 60% black VAP districts and divided the black VAP so that one district had 80% and the other 40%, the case would also be clear. And the multi-member-at-large district is likewise a relatively simple case.
But here, plaintiffs made no direct effort to show that district lines were drawn in 1981 in a way which had the effect of packing or breaking up or fragmenting pri- or existing politically cohesive black groups. I waited in vain for evidence comparing the political status of blacks in the districts created in 1971 with their political status in the districts created in 1981. I asked myself: did the new lines drawn in 1981 decrease, limit, curtail or lessen, the effectiveness of black political participation by fragmenting or packing or otherwise? But plaintiffs eschewed this approach in favor of a theory that they need only show that the defendant Board in 1981 failed to take the opportunity to enhance black political effectiveness. The plaintiffs’ view apparently is that it is immaterial whether they were better off politically under the 1981 plan than under the 1971 plan. Their point is that they were not better off under the 1981 plan than they could have been if the Board had taken advantage of every opportunity to enhance their political position. This is clearly an affirmative action theory. Affirmative action by definition carries implications of intent which may relate to plaintiffs’ constitutional claims but have only tangential relevance to their Section 2 “results” claims.
The plaintiffs, in the main, simply had their experts identify the geographic locations of black citizens. Then they drew lines incorporating such black citizens into new districts in which the blacks would constitute a majority of the voting age population without any showing that those blacks represented a politically cohesive group. For the most part, the plaintiffs simply asked the court to assume that all black citizens incorporated into the new district would think alike and vote alike.
*242 But I steadfastly resist the notion that we should presume — or that the law permits us to assume — that all blacks, regardless of their differing geographic and political backgrounds, will vote as a racial bloc whenever a black candidate is opposing a white candidate; or, for that matter, that all white citizens (likewise brought together for the first time in the new district) will respond in kind. I suggest that such assumptions represent stereotyping at its worst and should be rejected out-of-hand. But, more important, they invite us to ignore the specific Thornburg requirements.
The point is: some proof of the political cohesiveness of the different black groups proposed to be assembled into a new district must be brought forward. One of the dangers of a statewide, “scattershot” attack, such as is being made in this case, is that there may be no real focus on the particular facts and circumstances affecting each of the old (here, the districts established in 1981), and each of the proposed (proposed by the plaintiffs) districts. Even the Senate Factor on racially polarized voting directs the inquiry into the voting behavior of the particular “State or political subdivision” in issue. See Senate Factor No. 2, supra. But, even better, we have clear directions from the United States Supreme Court on this point:
The inquiry into the existence of vote dilution caused by submergence in a mul-timember district is district specific. When considering several separate vote dilution claims in a single case, courts must not rely on data aggregated from all the challenged districts in concluding that racially polarized voting exists in each district.
Thornburg 478 U.S. at 59, n. 28, 106 S.Ct. at 2771, n. 28.
And as Justice Brennan pointed out, the trial court in that case “relied on data that were specific to each individual district in concluding that each district experienced legally significant racially polarized voting.” Id. at 59, n. 28, 106 S.Ct. at 2771, n. 28.
Use of exogenous elections is permissa-ble where, for instance, minorities have only recently sponsored candidates, and election data for the district in question is sparse. Gingles, 478 U.S. at 57 n. 25, 106 S.Ct. at 2769 n. 25. On the other hand, “exogenous elections alone could not prove racially polarized voting” within the challenged district. Citizens for a Better Gretna v. City of Gretna, 834 F.2d 496, 502 (5th Cir.1987). Rather, such data can be a reliable source for determining polarization only when the “aggregate representation from those elections ... virtually” covers the entire district at issue. See East Jefferson Coalition v. Jefferson Parish, 691 F.Supp. 991, 999 (E.D.La.1988).
Most of plaintiffs’ proposed new house districts cross county lines. In some instances, the plaintiffs might put on evidence showing polarized voting in one of those counties but then make no effort to show that blacks in adjacent counties, who would be incorporated in the proposed new House district, identified with the policies and the positions of the blacks in that county. In other words, proof, that the blacks from different political jurisdictions who were to be incorporated into a proposed new district were “politically cohesive,” has not been required.
There are some exceptions to this generality. The plaintiffs have made proof of polarization in some adjacent counties, portions of which have been assembled into a proposed new district. And in high population counties where more than one legislative district lay within that county, “exogenous” county election results wo.uld sometimes reveal the political cohesiveness of groups of black voters residing in those different legislative districts through their common responses in the county elections. This proof, at least, affords some circumstantial evidence of possible future cohesiveness. Another exception might be the proof of how the blacks voted in the presidential democratic primaries when Reverend Jesse Jackson was a candidate. But everyone knows that this was a one-time nationwide response. If the results in that presidential primary, may, alone, properly be used to establish polarized voting, then polarized voting would simply be an *243 other “given” not just in Arkansas and in the South but in every state in the Nation. Blacks in overwhelming percentages voted for Reverend Jackson, while whites voted against him. It is arguable that the white voters response to his candidacy had less to do with race than substantive issues.
2. White Voting Behavior.
How carefully has the majority’s opinion dealt with the requirement that the plaintiffs prove that the “majority votes sufficiently as a bloc to enable it ... to defeat the minority’s preferred candidate,”? Thornburg, 478 U.S. at 51, 106 S.Ct. at 2766. Not very carefully, I suggest. We should be talking about racial discrimination here. The question should be: have a substantial majority of whites in the challenged 1981 legislative districts been discriminating against black candidates by voting against them solely because of their race? But the majority will say that is not the question and they have strong authority for that position.
Justice Brennan instructed that plaintiffs do not have to show that white “bloc voting” behavior is racially motivated. In fact, the defendants are not to be afforded the right or opportunity, under his view, to prove that the voting behavior of the white voters is not racially motivated:
For purposes of § 2, the legal concept of racially polarized voting incorporates neither causation nor intent. It means simply that the race of voters correlates with the selection of a certain candidate or candidates; that is, it refers to the situation where different races (or minority language groups) vote in blocs for different candidates.
* * * sk * *
It is the difference between the choices made by blacks and whites — not the reasons for that difference — that results in blacks having less opportunity than whites to elect their preferred representatives. Consequently, we conclude that under the “results test” of § 2, only the correlation between race of voter and selection of certain candidates, not the causes of the correlation, matters.
Thornburg, supra, at 63-64, 106 S.Ct. at 2772-73 (emphasis in original).
Justice Brennan rejects arguments that “polarized voting” refers to “voting patterns that are determined primarily by the voter’s race rather than the voter’s other socio-economic characteristics," Id. at 64, 106 S.Ct. at 2773, and that “polarized voting” means that voters select or reject candidates principally on the basis of the candidate’s race. Id. at 67, 106 S.Ct. at 2775. He concludes on this point: “Clearly, only the race of the voter, not the race of the candidate, is relevant to vote dilution analysis.” Id. at 68, 106 S.Ct. at 2775. Finally Justice Brennan rejects “the suggestion that racially polarized voting refers only to white bloc voting which is caused by white voters’ racial hostility toward black candidates.” Id. at 70, 106 S.Ct. at 2777. He says this would be contrary to Congress’ intent in amending Section 2 to establish a pure “results” test.
In amending § 2, Congress rejected the requirement announced by this Court in Bolden, supra, that § 2 plaintiffs must prove the discriminatory intent of state or local governments in adopting or maintaining the challenged electoral mechanism. Appellants’ suggestion that the discriminatory intent of individual white voters must be proved in order to make out a § 2 claim must fail for the very reasons Congress rejected the intent test with respect to governmental bodies. See Engstrom, The Reincarnation of the Intent Standard: Federal Judges and At-Large Election Cases, 28 How.L.J. 495 (1985).
Id. at 71, 106 S.Ct. at 2777.
But “political cohesiveness” and “white bloc voting” are judicially created “preconditions” to Section 2 cases. Congress has expressed no judgment concerning the need for, nor the definition of, “polarized voting.”
The Thornburg opinions reveal that a majority of the justices have not signed on to these views of Justice Brennan. It is my opinion that a majority will eventually reject, or at least significantly modify, those views. Why?
*244 The extravagant interpretations and applications of Section 2 have reached the point where, absent some reasonable “preconditions,” those interpretations would simply require the creation, for example, of black and hispanic majority VAP legislative districts wherever possible. Thus, we would have the establishment of the right of proportional representation based on race and ethnicity which is not only contrary to the express language of Section 2(b) {Provided that nothing in this section establishes a right to have the members of a protected class elected in numbers equal to their proportion in the population”) but also, in my opinion, contrary to the Constitution. So only the Thornburg “preconditions” prevent this “slot machine” interpretation of Section 2. 13
But if one interprets the “preconditions” to remove any necessity for the plaintiffs in Section 2 cases to prove fault or racial discrimination on the part of the white voters, then one has not significantly inhibited that “automatic” result. More importantly, that interpretation does away with the nexus between the result deplored, to wit, the dilution of black voting power, and the cause thereof: racially discriminatory voting on the part of whites. So it is my view that a majority of the justices on the Supreme Court will (1) go back to a more reasonable and defensible interpretation of Section 2, (2) give a “racial discriminatory” meaning and content to racial polarization, (3) both, or (4) accept the liberal interpretation of Section 2 and Justice Brennan’s definition of the “preconditions” and conclude that Section 2 as so interpreted and applied is unconstitutional.
Justice Brennan also takes the position that the motives of the voters should not be gone into because that introduces the issue of “racism” and would therefore be divisive.
The Senate Report states that one reason the Senate Committee abandoned the intent test was that “the Committee ... heard persuasive testimony that the intent test is unnecessarily divisive because it involves charges of racism on the part of individual officials or entire communities.” S.Rep., at 36, U.S.Code Cong. & Admin.News 1982, p. 214. The Committee found the testimony of Dr. Arthur S. Flemming, Chairman of the United States Commission on Civil Rights, particularly persuasive. He testified:
[Under an intent test] [ljitigators representing excluded minorities will have to explore the motivations of individual council members, mayors, and other citizens. The question would be whether their decisions were motivated by invidious racial considerations. Such inquires can only be divisive, threatening to destroy any existing racial progress in a community. It is the intent test, not the results test, that would make it necessary to brand individuals as racist in order to obtain judicial relief. Ibid, (footnote omitted).
The grave threat to racial progress and harmony which Congress perceived from requiring proof that racism caused the adoption or maintenance of a challenged electoral mechanism is present to a much greater degree in the proposed requirement that plaintiffs demonstrate that racial animosity determined white voting patterns. Under the old intent test, plaintiffs might succeed by proving only that a limited number of elected officials were racist; under the new intent test plaintiffs would be required to prove that most of the white community is racist in order to obtain judicial relief. It is difficult to imagine a more racially divisive requirement.
Thornburg, supra, at 71-72, 106 S.Ct. at 2777.
Surely everyone understands that it is standard procedure for plaintiffs in these cases to also allege intentional racial discrimination as a basis for their constitution *245 al claims. And even in a bare Section 2 “results” case, the record will overflow with efforts to prove racism. (Just note once more the Senate factors.) And why not? That is what such cases are ultimately all about. To say that the defendants in cases such as this may not show that race discrimination is not the true reason for the differing voting behavior of blacks and/or whites in the area is to deny the right to demonstrate that there is no constitutionally adequate basis for the Section 2 claim or for the potential relief which will follow from the “establishment” of that claim.
Justice Brennan also says a voter’s motive and intent test should not be required because it would be too burdensome to prove.
The new intent test would be equally, if not more, burdensome. In order to prove that a specific factor — racial hos tility — determined white voters’ ballots, it would be necessary to demonstrate that other potentially relevant causal factors, such as socioeconomic characteristics and candidate expenditures, do not correlate better than racial animosity with white voting behavior.
Thornburg, supra, at 72, 106 S.Ct. at 2777.
But proof of the true basis of the complaint should not be excused simply because it would be burdensome. Plaintiffs in these cases regularly use statistical experts. In Title VII cases we find sophisticated parties using multiple-regression techniques (to regress other variables besides race) to reveal whether race was, or was not, a factor in a certain employment decision. See e.g., Allen v. Seidman, 881 F.2d 375, 378 (7th Cir.1989). Regardless of difficulty I suggest we may not remove from the case the very predicate for the relief sought.
Finally, Justice Brennan says:
Focusing on the discriminatory intent of the voters, rather than the behavior of the voters, also asks the wrong question. All that matters under § 2 and under a functional theory of vote dilution is voter behavior, not its explanations. Moreover, as we have explained in detail, supra, requiring proof that racial considerations actually caused voter behavior will result — contrary to congressional intent — in situations where a black minority that functionally has been totally excluded from the political process will be unable to establish a § 2 violation. The Senate Report’s remark concerning the old intent test thus is pertinent to the new test: The requirement that a “court ... make a separate ... finding of intent, after accepting the proof of the factors involved in the White [v. Reges-ter, 412 U.S. 755 , 93 S.Ct. 2332 , 37 L.Ed.2d 314 (1973) ] analysis ... [would] seriously clou[d] the prospects of eradicating the remaining instances of racial discrimination in American elections.” Id., at 37, U.S.Code Cong. & Admin. News 1982, p. 215. We therefore decline to adopt such a requirement.
Thornburg, supra, 478 U.S. at 73, 106 S.Ct. at 2778.
So, there it is! Justice Brennan says that if we are to get rid of the “remaining instances of racial discrimination in American elections,” we should not require proof of that racial discrimination! 14 I am convinced *246 that a majority of the justices do not subscribe to that notion. Assuming that I am right, what does this record show?
Unspoken is the assumption that black bloc voting is not a manifestation of racism whereas white bloc voting is. I am willing to accept that black bloc voting may simply reflect racial pride and the desire for a “breakthrough” in the democratic arena. And I am willing to accept on the basis of the experts’ opinions, or, indeed, without proof that some portion of the white vote in political contests pitting a black against a white is, unfortunately, simply and solely based on race. But what portion?
The parties have not chosen to bring to this Court’s attention all of the facts and circumstances involved in the political races which were relied upon by the plaintiffs to prove bloc voting. We were only given occasional glimpses at the relative qualifications of the black candidates vis-a-vis their white opponents. We have not been informed in any detail about the platforms or policies of the opposing candidates, their experience, their abilities as speakers, their “track records” in their communities, the name recognition of each candidate, their financial support, their personalities, the identity of their supporters and detractors, etc., etc., (i.e., those factors that one would look for to determine, or estimate, the likelihood of success or failure in a political contest in which race was not involved). We are invited to infer — -in this evidentiary vacuum — that all of the whites who voted for the white candidate were simply engaged in yet another instance of racial discrimination. I do not agree that this is a reasonable or legitimate inference.
We must accept that, in cases like this, people are being penalized for the manner in which they exercise their right to vote, without being given the opportunity to show that racial considerations had nothing to do with their votes. And there are potential partisan political overtones.
In a Republican district where Democrats never win, can we assume that Republicans who vote against and defeat a black Democrat candidate are racially motivated?
The views expressed by Justice Brennan may well have prevented the appropriate analysis and explanation of the voting behavior in this case. Since I take that analysis to be necessary, I conclude plaintiffs have failed to demonstrate the degree to which the white votes were motivated by race discrimination and have, therefore, failed to establish the very heart of their case: white discriminatory bloc voting.
And how does the majority herein define “sufficiently” in the Thornburg formulation (i.e., that the majority votes sufficiently as a bloc to enable it to defeat the minority’s candidate)?
The Court may take judicial notice of the outcomes of the recent elections in Virginia and New York City. Mr. Doug Wilder, a black, was elected governor of Virginia in a very close election. The statewide Virginia and Arkansas black-white demographics are almost identical. Blacks constitute about 16 percent of the total population. Now if Mr. Wilder had lost, would that prove that whites had voted “sufficiently” as a bloc to defeat the black minority’s candidate?
Before writing off the great majority of whites in the Delta, the South, and the Southeast regions of Arkansas, as racists, I would suggest that much more proof would be required than that introduced at this trial. How would a black candidate fare with white voters if he or she ran on a platform espousing moderate or conservative political views against a white person of liberal views? We simply do not know, but note one analysis of Mr. Wilder’s race: 15
*247 Not everyone was thrilled with Doug Wilder’s victory in the Virginia governor’s race.
For starters, of course, there were the people who supported his opponent, Republican Marshall Coleman. The media grumbled about the narrowness of the contest. Wilder was supposed to win comfortably, or so the polls said, and when it didn’t happen that way, when the election went down to the last precinct, the press and pundits were stunned. They were shocked, shocked to find that some of Virginia’s white voters are still racially prejudiced and, what’s more, anxious to conceal it from pollsters. And some blacks, having been weaned on liberal politics and seismic oratory, were disappointed that Wilder ran such a mainstream campaign with so little emphasis on race.
It was almost enough to obscure the plain, breathtaking fact that a black man, the grandson of slaves, had won a statewide election in Virginia just a generation after Jim Crow.
But some folks got the message right away. On the very morning after the election, Atlanta Mayor Andrew Young, a candidate for governor for next year’s contest in Georgia, called a news conference and said he was rethinking his opposition to the death penalty. It was no coincidence, but a page torn directly out of Wilder’s playbook. Like Wilder, who reversed himself over the years and became an advocate of capital punishment, Young is turning away from his liberal past and driving hard to the middle ground. It’s the way black candidates will be running into the 1990s, and probably into the next century, and it’s worth a look.
Wilder’s style and strategy could be called “color-deaf.” The usual term, colorblind, doesn’t really apply, because voters are always going to notice a candidate’s race. Granted, a black candidate does have to pay some attention to his appearance. Dashikis and Afros are out — but then, so are Nehru jackets and muttonchops for white men. A lot is made of Wilder’s appearance in photographs from the early seventies, when he wore an Afro and loud shirts, but every man in America, black or white, looked like hell in the early seventies. What black candidates have to avoid is wearing the politics of the seventies. When Wilder won election to the Virginia Senate 20 years ago, his first issue was a strident attack on the state song, “Carry Me Back to Old Virginny.” Since then he’s simmered down. In 1984, a seeker of conciliation, he stitched together a compromise that made a state holiday of the birthdays of Robert E. Lee, Stonewall Jackson, and Martin Luther King, Jr. But before someone blurts out “Uncle Tom,” let’s be plain that the black candidate of the nineties doesn’t have to shuffle and grin. He must be moderate to conservative, just as a white candidate must be. The most interesting thing about the Virginia race was its clear signal that most whites, even if they’re not especially sympathetic to blacks— even if they’re still openly bigoted — do not wish to turn back the clock. No one has happy memories of the fire hoses and freedom rides. Wilder’s most effective TV spot charged that his opponent wanted to “turn back the clock.” The subject was abortion rights, but the subliminal message was race, and the appeal was to maintain the status quo. To succeed, a black candidate doesn’t have to be anti-civil rights, he simply has to be posi-civil rights. It’s worth noting that Wilder didn’t send an invitation to Jesse Jackson, who would’ve loved sharing the election-night glory but instead ended up with Larry King on CNN.
F. Allen, “The Color-Deaf Candidacy,” Southpoint, 16-17 (January 1990).
Whether one agrees with Mr. Allen’s analysis or not, one has to accept that over 40 percent of the whites participating voted for Mr. Wilder, a black. If 30 percent of *248 those whites easting their ballots had voted for Mr. Wilder — and he lost — I suggest that this would still not show “white bloc voting” as referred to in Thornburg. And I believe this bloc voting is a phenomenon that cannot be proved or disproved upon the basis of the results in one election alone. Some consistent voting behavior must be shown.
And, of course, similar observations could be made about the Dinkins’ victory in New York City (tailored to reflect the political environment of that city as contrasted with Virginia). It is interesting to note that the black plaintiffs in Butts v. City of New York, supra, were challenging the 40 percent primary runoff provision (i.e., if no candidate received 40 percent or more in the general primary, then a runoff between the two top vote getters required) on the theory that it would prevent a black from being nominated for office in New York City. And here, four years later, we have a black man not only nominated in the face of that requirement, but also elected in the general election. Mr. Dinkins received 51 percent of the vote in the Democratic primary, Mayor Koch 43 percent and others 7 percent. In the general election, he received over 50 percent of the total vote, Mr. Guiliani 48 percent, others 2 percent. According to the opinion in Butts , the U.S. District Court found that the combined black-hispanic vote in New York City eq-ualled 30 percent of the total.
Is it not obvious that large numbers of white voters are supporting black candidates, not because of race but because of the merits of their candidacies in terms of political philosophy, platform and perceived competency? And is it not equally obvious that large numbers of white voters are voting against black candidates (i.e., for their white opponents) not because of the black candidate’s race but because of ideological or partisan factors (e.g., Republicans voting for Mr. Guiliani)? On what basis are we to assume that many, perhaps most, white voters in eastern Arkansas have not voted against black candidates for the same or similar reasons?
So it is clear that the majority opinion herein does not detail or evaluate the evidence supporting the Thornburg “preconditions” of either “political cohesiveness” or “white bloc voting” according to proper legal standards. Nor could it because, in many instances, sufficient evidence of such preconditions was not offered or received. And “district specific” evidence of such preconditions has not been made as to each district challenged in this action.
The breadth of the majority’s decision (which excluded only Pulaski County) can be seen in the remedy fashioned. While not holding that the law requires creation of any particular number of majority-black districts, the court nevertheless states:
We know, and have found in this opinion, how many such districts can be created, and we also know that their lines can be drawn so as to make them reasonably compact and contiguous. There is, therefore, a sort of presumption that any plan adopted should contain that number of majority-black districts.
Majority op. at 217.
In order for the Board to comply with the court’s decree, it will inevitably have to change the district lines and the voting compositions of many legislative districts that are in no way tainted by any Section 2 violation. Because of the “ripple effect,” the legislative House district lines in more than 25 such districts may have to be changed. The scope and significance of what we are about should be candidly faced. The court’s order will affect the interest of many black and white citizens living in legislative districts that are not even being challenged herein. Many may be completely unaware of the lawsuit. The court’s order will also affect many innocent (i.e., non-racist) whites. It will also affect many blacks who will end up in districts with a smaller percentage of black voters than before. If it can be said that the political power of those blacks who are included in the new black majority VAP districts will be enhanced, it must also be clear that the political power of blacks put in districts with reduced black VAPs will be diminished. I will try to provide some *249 measure of this effect by comparing the status of black political power under the 1981 districting plan to what it will be if plaintiffs’ proposed plan were substituted therefor.
Excluding Pulaski County and those portions of Crittenden County that were the subject of the challenge in Smith v. Clinton, supra, blacks constituted pluralities of between 30 and 39 percent of the voting age population in eight House districts created by the Board of Apportionment in 1981. 16 They constituted substantial pluralities of 40 percent or more of the voting age population in five additional House districts, and a majority of the voting-age population in one other. 17 All tolled then, blacks constituted pluralities of 30 percent or more in 14 House districts under the 1981 plan, and a majority in one.
Under the proposed remedial plan developed by the plaintiffs in response to the majority’s order of December 4, 1989, blacks would constitute a majority of the voting-age population in eight House districts including House Districts 82, where blacks already constituted a majority. So in terms of creating majority black districts, the proposed remedy will create more than existed previously. However, this is accomplished essentially by “packing” blacks into a few districts, and reducing their pluralities elsewhere.
For example, House District 47, which previously encompassed all of northern St. Francis County and had a 40 percent black YAP, will, under the plaintiffs plan, now be shifted to the western half of that county, and include portions of Lonoke and Lee counties, where 8,710 black residents will constitute 27 percent of the VAP.
In House District 85, which previously included all of Desha County as well as its largest city — Dumas—blacks had equalled 38 percent of the VAP. Now, Dumas and its adjoining townships will be placed in a district that will run up through Lincoln County and into northern Jefferson County including portions of Pine Bluff so as to create a majority black district. As for the 5,934 blacks left behind, they will constitute 27 percent of the VAP in the “new” House District 85.
In House District 73, which had included most of Phillips County outside of the Helena/West Helena region, as well as Monroe County, where blacks constituted 42 percent of the VAP, the remedy will leave 8,284 black residents to constitute only 20 percent of the VAP in the new District 73.
So the political power of those black citizens who have been left behind (i.e., not placed in majority black VAP districts) has clearly been diluted. What remedy do they have?
The pertinent Thornburg “preconditions” findings of the majority are:
The 1981 apportionment plan created only five legislative positions, one in the Senate and four in the house, representing districts in which a majority of the voting-age population was black. We find that a total of 16 such districts, three in the Senate and 13 in the House, could have been created, and that these districts would have been reasonably contiguous and compact. We further find that voting in the areas of the State in question is markedly polarized by race. Both black and white voters usually prefer candidates of their own race.
Majority op. at 198.
Note there is no specificity to the polarization finding. There is no effort to deal with each of the challenged districts separately in accordance with the totality of the circumstances affecting each such district. No, the majority simply states: “voting in the areas of the State in question is markedly polarized by race.” On page 208 of the opinion, we find the following:
We also have little difficulty in finding that voting patterns are highly racially polarized, in the sense that black and white voters prefer different candidates with a high degree of frequency. Furthermore, the white voting majority is *250 powerful enough, and consistent enough, to defeat black voters’ preferences for black candidates almost without exception.
Id. at 208.
Finally, on page 209 of the opinion, we find:
It is true here, as it was in Smith, see 687 F.Supp. at 1317 , that there is racially polarized voting in races for the Arkansas State Legislature, that black voters usually vote cohesively, as a unit, and that white voters have the strength under the present plan of apportionment (except in majority-black districts) to enable them to frustrate the choices made by black voters.
Elsewhere in this opinion I point out the deficiencies in the proof to establish these findings. Unless the elements of proof required in a state-wide redistricting challenge are different from those stated in Thornburg and generally applied in “gerrymandering” cases, the proof here cannot support the majority’s broad conclusions of Section 2 violations or the broad remedy imposed. The failure of proof is obvious. The majority is simply saying that the Board in 1981 did not create as many black YAP Senate and House districts as they could have. It did not require proof that the 1981 plan split (or packed) previously existing “politically cohesive” black groups; not that black citizens proposed to be placed in new districts were “politically cohesive.” In this connection it does not meet the very test it, itself, postulates. In analyzing the Butts case (an analysis with which I agree), Judge Arnold states:
It does not hold that unlawful dilution is impossible when a multi-member body’s members are chosen from single-member districts that have been drawn in such a way as to split a certain class of voters among different districts.
There has been no showing that previously existing politically cohesive groups of black voters were “split” except in the seven House districts I discuss in Section VIII, infra. And only House District 82 appears to be “packed.” But plaintiffs apparently are not complaining about that. See Section VIII, infra.
We must keep in mind the differences between a Section 2 case and claims of constitutional violations which require proof of discriminatory intent. It may well be that the precision in the proof required to establish a “results” claim under Section 2 would not be required to establish a constitutional claim. We are reserving the plaintiffs’ constitutional claim for later discussion. But I mention it here because there is some suggestion that the majority's opinion on Section 2 may have been influenced by thoughts that the Board intentionally drew district lines “so as to avoid” creating majority black districts. Note the following language:
If lines are drawn so as to avoid majority-black single-member districts, and reasonably compact and contiguous majority-black districts could have been drawn, and if racial cohesiveness in voting is so great that, as a practical matter, black voters’ preferences for black candidates are frustrated by this system of apportionment, the outlines of a Section 2 theory are made out.
This may explain the majority opinion’s seeming indifference to the specificity required by the Thornburg preconditions. Note further discussion of plaintiffs’ proof under Section VIII, infra.
B. What is a “Minority?” 18
In Whitfield, supra, which was an attack upon Arkansas’ primary runoff laws, the Court observed:
And, as indicated above, when the voting age population of blacks approaches equality with the voting age population of whites and the evidence shows, in addition, a consistent pattern of “crossover” votes in actual elections, which, *251 although small percentagewise, are sufficient to “bridge the gap,” the basic assumption used to challenge runoff provisions appears to be undermined.
Whitfield, supra, at 1376.
And this is equally — perhaps more — true in a redistricting, gerrymandering case such as this.
In Thornburg, the court identified the standard for evaluating polarized bloc voting:
And, in general, a white bloc vote that normally will defeat the combined strength of minority support plus white “crossover” votes rises to the level of legally significant white bloc voting.
Id. 478 U.S. at 56, 106 S.Ct. at 2769 (Emphasis supplied).
So to determine if there is “legally significant” bloc voting, the Court should first make an effort to determine whether blacks constitute a “minority” in the challenged districts and, if so, then determine if, in spite of racial polarization, the voting strength of the black minority combined with “white ’crossover’ votes” is still insufficient to overcome the white bloc vote. If this combined voting strength is insufficient, then Thornburg would say we possibly have legally significant white bloc voting. 19 If it is sufficient, then the attack fails.
The voting data here, as in Whitfield, and Perkins, indicates (with rare exceptions) that there have been “crossover” white votes for black candidates — in some cases considerably in excess of 5 percent. So what is the proper test to determine if Afro-Americans constitute a “minority” within a challenged district? Conversely, when are whites considered a “majority?”
It appears that all parties to this action agree that voting age population (VAP) is the critical inquiry — not total populations or the number of registered voters (especially where, as here, there are no barriers to registration). And I reject the notion that we should use some such nebulous standard as “effective voting majority,” see Gingles v. Edmisten, supra, based as-sumedly upon some history of voting “success.” We are trying to determine under Section 2 if the right of blacks to vote is being denied or abridged by virtue of the “political processes” not being equally open to them in that they have “less opportunity” than others “to participate in a political process and to elect representatives of their choice.” We are talking about “opportunity to participate.” And assuming no barriers to voting or registration, the actual “turnout” of voters at a particular election tells us nothing about that “opportunity.” (But see Whitfield Majority op. in Eighth Circuit, supra, and in ADDENDUM.) No one in America is required to vote or to participate in the political processes of local government, the state, or the nation.
In my dissent on the issue of laches, I pointed out how dramatically VAPs can change in a ten-year period. And since we are over nine years into the ten-year period, we must assume changes have occurred. As explained in that dissent, although we will not know until the census is taken for 1990 (starting within a few months of this decision), the most plausible inference is that the 1980 VAPs understate to some degree the 1989 black VAPs. And this understatement does not have to be great to change the “minority” to the “majority.”
But even accepting the 1981 VAP figures, if one adds thereto the consistent “crossover” white vote even in the racially polarized areas, it becomes clear that, in at *252 least one of the 1981 legislative districts where the 1980 black VAP was 45 percent or greater, blacks have, and have had, the “opportunity to elect candidates of their choice” even when that candidate was, or is, black. That is because the crossover white vote has usually been in excess of 5 percent. The facts that blacks may not have registered in the same proportion as whites (although it appears they have), that they may not have turned out to vote in the same proportion as whites, or that they did not vote 100 percent for the black candidate are all beside the point. They had the “opportunity" to participate and to elect the candidate of their choice.
The plaintiffs take the position that even if blacks constitute a majority of the VAP in a particular district, they may still be considered a “minority” for the purposes of the Voting Rights Act. I referred to the same argument in the Whitfield case:
The case, Campbell, et al. v. Lee County Election Committee, (No. H-C-86-48), which is still before the court, involved a plan of reapportionment to produce' equal single member districts. The black plaintiffs argued that they would need a voting age population of 60 percent or more in order to have a “safe” black district and any real opportunity of electing the representatives of their choice. In the absence of demonstrated barriers to full political participation by blacks in the electoral process, the court characterized such an argument as a racial slur against blacks.
Whitfield, supra, at 1380-81.
As long as the parties are using VAP figures that they agree upon, and as long as there are no legal barriers to registration or voting, then it is my view that 50-plus percent VAP is a “majority” and 50-minus percent VAP is a “minority”. And it is my further view that courts may not constitutionally mandate the creation of “super-majority" districts. And in this case there are not even the excuses usually used to justify such action. There is no reliable evidence that whites and blacks are registering at differing rates and we have only limited evidence of such differentials in turn-out. And even if we had solid evidence of consistently lower turn-outs by, say, black voters, still it would, in my opinion, be contrary to law to use such evidence as a predicate for ordering the creation of super-majority districts. If nothing inhibits the opportunity of citizens to vote, we certainly should not reward the failure to exercise that opportunity.
Plaintiffs must fail in connection with their challenge to House District 74 since the evidence shows that the districting lines as drawn in 1981 for that district do not interfere with the opportunity of black citizens to participate in the political process or to elect candidates of their choice, even when such candidates are black. Strangely the voting results in House District 100 and House District 75 do not consistently show the white crossover votes we find in House District 74. [At this point, I want to express my skepticism about the plaintiffs’ statistical expert's basis for concluding that there were no (i.e., zero) white crossover votes in certain elections. The actual precinct returns keyed to the racial composition of those precincts negates this “statistical” conclusion.]
VI. THE “ZIMMER” AND SENATE FACTORS.
A. Relevance and Effect.
I sense that most of my differences with the majority stem from the different ways in which we treat the “Zimmer” and Senate factors. The majority, like many other federal courts (See e.g. the opinion of the majority of the Eighth Circuit panel reversing this district court in Whitfield, supra), seem to take the view that such factors must be considered and applied in all cases. They seem to state that the relevance of those factors has been established by law and that judges handling Section 2 cases must uncritically accept and rely thereon even when it is obvious that those factors have no real or scientific relevance to the particular challenge being made under Section 2. See pages 204-05 and 208 of Majority Opinion. Judge Arnold refers to “the list of relevant factors contained in the *253 report of the Senate Judiciary Committee.” and then states:
The relevance of this list is confirmed by the Supreme Court’s opinion in Thorn-burg, 478 U.S. at 44-45 [106 S.Ct. at 2763-64],
I do not so read Justice Brennan’s opinion. In fact, Justice Brennan makes it clear that courts are to use their own judgments in dealing with most of the “senate factors.” He states:
The Senate report specifies factors which typically may be relevant to a Section 2 claim.
While the enumerated factors will often be pertinent to certain types of § 2 violations, particularly to vote dilution claims, other factors may also be relevant and may be considered. Id,., at 29-30. Furthermore, the Senate Committee observed that “there is no requirement that any particular number of factors be proved, or that a majority of them point one way or the other.”
Thornburg, supra, 478 U.S. at 44-45, 106 S.Ct. at 2763-64 (Emphasis added).
Indeed, any view which purported to require the court’s acceptance of the Senate Factors as always relevant to the factual issues raised by Section 2 challenges would invade the fact-finding and truth-establishing province of the courts. So the courts must look at each factor and determine its relevance, or lack of relevance, to the issues in the case. As with other cases tried to the courts, irrelevant factors must be ignored.
Of course, it is almost certain that two of the Senate Factors will be relevant in any Section 2 case. Those two factors are “the extent to which voting in the elections of the state or political subdivision is racially polarized” and “the extent to which members of a minority group have been elected to public office in the jurisdiction.” This is because the plaintiffs in a Section 2 case must prove, inter alia, that the group to which they belong is “politically cohesive” and that the “majority votes sufficiently as a bloc to enable it ... to defeat the minority candidate.” These two factors are usually shown by proving that voting in the particular jurisdiction is highly racially polarized and that members of the minority group have had limited success in becoming elected to public office in that jurisdiction. Otherwise, the relevance of the factors will depend upon the nature of the challenge asserted.
If a particular jurisdiction still had a voting literacy test or a financial burden test (e.g., poll tax), then the relevance of many of the other senate factors would be apparent. But when there is an attack on a legislative reapportionment plan, I challenge the relevance of most of the other factors.
In a special concurrence in Nevett, Judge Wisdom noted that when a court is confronted with a test consisting of an aggregate of factors, “the case turns on the attitude of the trial judge and the appellate judges_” Nevett v. Sides, 571 F.2d 209 (5th Cir.1978), p. 233. As stated by Mr. Howard M. Shapiro, “with such an elusive standard, judicial discretion is at a maximum and outcome is likely to be inconsistent.” Note, Geometry and Geography: Racial Gerrymandering and the Voting Rights Act, 94 Yale L.J. 189 , 195 (1984). Later in that article, it is stated:
Some of the Zimmer factors — those which focus on electoral structure — simply have no relation to single-member districting. The remaining factors are important to establish the social context, but, since they are independent of any particular districting configuration, they can provide no insight into the relative merits of various districting plans.... More generally, in cases of racial gerrymandering, where the denial of access is unlikely to be complete, the Zimmer factors are unable to distinguish between alternative districting plans. Use of the Zimmer factors is simply not an effective way to evaluate claims of racial gerrymandering. (Emphasis added)
Id. at 197 .
The role of the Senate Report “typical factors” was also dealt with extensively by the trial court in Whitfield at 1381-82.
*254 The concerns expressed by Judge Wisdom and by Mr. Shapiro should be taken quite seriously. The assumed relevance of the Senate factors provides an escape from the discipline imposed by the specific statutory language involved. Once so liberated, the judges must rely upon their own personal or even political philosophies. This can be dangerous business. The temptation of judges to overly rely on their own “life experiences” and personal values becomes difficult to resist. The proper limits upon the concept of judicial notice are lost in the process. Note how the majority “confirms” its conclusion that voting patterns are highly polarized:
And our own experience as citizens of this State, which we are not required to lay aside, strongly confirms this conclusion.
Majority op. at 208.
Of course, each of the three judges on this Court brings a lifetime of personal exposure to, and involvement in, the political affairs of our state, but, as this case demonstrates, we do not always come away from that exposure and involvement with the same conclusions, views, ideas and opinions. If judges are to avoid being lost in a sea of subjectivity, they must harken back to the language of Section 2 for guidance and resist the siren song of the Zim-mer and Senate factors. Hear the words of an expert on the Voting Rights Act:
I have tried here to suggest a way of thinking about the issues raised by section 2 litigation. They do not lend themselves to resolution by too great a preoccupation with the Senate checklist. I argued ... that, with the Zimmer factors to guide them, the constitutional decisions assumed “an orderliness and rationality that disguised their subjectivity.” But the subjectivity derived from the arbitrariness of the listed factors themselves, which, in turn, resulted from an effort to measure an undefined phenomenon. What is justice in the electoral sphere? these cases asked. What is the normal relation between racial and ethnic groups in the political sphere? When are the “opportunities and occasions of power” properly shared? The inadequacy of the courts’ decisions reflected the magnitudes of the task before them.
The Senate’s list is no improvement over the one provided by Zimmer. It obfuscates rather than clarifies; simplifies what cannot be simplified; makes orderly a process that is inherently disorderly. Thernstrom at 227.
The emphasis upon the Zimmer and Senate factors has, I suggest, resulted in plaintiffs having unanticipated success in challenges brought under Section 2. Note the comment of Ms. Thernstrom:
And that inescapable element of subjectivity in section 2 decisions suggests the wisdom of judicial restraint in upholding plaintiffs’ claims. As of 1986, however, such restraint has been in short supply. “No objective observer of the political process in the South can argue that it is less open to minorities today,” Katherine Butler has noted, “... yet in the past plaintiffs never enjoyed the degree of success evidenced by recent decisions.” Such unprecedented success would be appropriate, of course, if past legal standards had been found wanting. It is clear, however, that in amending section 2 Congress did not expect substantial deviation from what the Senate Judiciary Committee report described as an extensive, reliable, and reassuring track record.” The “results” test, as the report depicted it, was nothing “radically new” or “untested"; it was “well-known to federal judges” and not “easy.” It was easier, of course than an intent test (defined as demanding evidence of a “smoking gun”), but the decision in Mobile, requiring proof of discriminatory intent, had virtually halted vote dilution suits, advocates of the amendment claimed. “We are acting to restore the opportunity for further progress,” the report stated. The intent was to restore normal traffic — to repair a light stuck on red.
What Congress envisioned is not what happened. In the first four years in the life of the amended provision, the sue- *255 cess rate of plaintiffs in section 2 cases exceeded 90 percent.
* >}t % if: Jj! 8}5
Indeed, the plaintiffs’ victories in court only hint at the magnitude of that success. An uncounted but unquestionably large number of suits are settled out of court by jurisdictions reluctant to commit scarce funds to an almost hopeless cause or to take a stand that might be interpreted as “anti-black.”
>!< JjS sj: Jfc
Those in the civil rights community who fought hard for the 1982 amendments are justly elated by the results. Not only at-large systems, but also multi-member and single-member districting plans that fragment black and Hispanic residential concentrations are “falling like dominoes.” Perhaps their demise is nothing to mourn. But it has occurred not as a consequence of considered legislative judgment that such electoral procedures violate fundamental rights or entail unacceptable costs as a consequence of their disparate racial impact; rather, this change has resulted primarily from threatened legal action by attorneys whose arguments have been given credibility by confused courts— courts that have neglected the statute’s focus on fair process and come close to embracing the principle of group rights to proportionate officeholding.
Thernstrom at 227. (Emphasis added)
B. Application of Senate Factors in This Case.
Judge Arnold deals with the Senate factors in Section C of the majority opinion. See pp. 209-15. Even though I do not agree that many of them are relevant in this case, see supra, I will, nevertheless, review certain of his findings and conclusions with respect to some of the factors and then explain my disagreement therewith.
1. Senate Factor # 1.
The extent of any history of official discrimination in the state or political subdivision that touched the right of the members of the minority group to register, to vote, or otherwise to participate in the democratic process;
In addition to taking notice of the Court’s findings in Smith, Perkins, and Sherpell v. Humnoke School District, 619 F.Supp. 670, 680-681 (E.D.Ark.1985), appeal dismissed 814 F.2d 538 (8th Cir.1987), Judge Arnold states:
A number of witnesses testified to the difficulties experienced by blacks in electoral politics in various of the areas affected by this litigation. Polling places have been moved on short notice; deputy voting registrars have, with isolated exceptions, been appointed only as a result of litigation; efforts have been made to intimidate black candidates. It is not necessary to decide at this point which (if any) of these barriers were motivated by invidious discrimination. It is sufficient for present purposes to note that these and similar practices clearly result in discouraging black participation in elections. Partly this is due to a higher level of illiteracy, poverty, economic dependence, even timidity, among the black population. And while defendants can hardly be blamed for creating these conditions, it is an inescapable fact that they are in large part the legacy of a history of discrimination, much of it governmental, beginning with the constitutionally sanctioned institution of human slavery.
As I have previously explained, none of these facts and circumstances tend to prove or disprove that the district lines as drawn in 1981 resulted in blacks living in the contested areas having less opportunity than other members of the electorate to participate in the political process and to elect candidates of their choice. Being irrelevant they should be entirely ignored.
Relevant or not, do I agree with the findings, and the inferences drawn therefrom as stated by Judge Arnold? Again, no. He states, “polling places have been moved on short notice.” In this case, the majority is ordering the most massive redistricting ever required by a federal court in this Nation encompassing in its potential effect approximately one-third of the coun *256 ties of Arkansas. To emphasize evidence of a few instances of changes in polling places “on short notice” in a few communities; the evidence that a few deputy voting registrars were appointed only as a result of litigation; and evidence of a few isolated instances of attempted intimidation is to trivialize this important case. And, although obviously not so intended, to me, that emphasis tends to unfairly patronize our fellow citizens who are black.
In Whitfield, I dealt with much the same, or same type of, evidence which we considered in this case. As a consequence I made the following findings:
The Court finds that the black citizens of Phillips County do not still face harrassment or intimidation in registering, or in voting, or in running for office. The location of polling places is always a difficult problem. Blacks on the average, being poorer and having less access to transportation, may be said to experience more difficulty on a statistical basis in getting to the polls. Of course, poor whites face the same problem. The Court does not find that the location of the polls as described in the evidence constitutes a significant barrier to black or white participation given even minimal motivation to so participate.
Whitfield, supra, at 1375.
I would make the same findings on the basis of the evidence in this case. And is it not clear to all that none of the things here referred to by the majority opinion should be considered “barriers” to participation.
Under its discussion of this factor, the majority also documents its findings of “efforts to intimidate black candidates” by citing the testimony of Mr. Roy Lewellen, a black attorney who ran for the State Senate in 1986 against the incumbent, Senator Paul Benham. The majority found Mr. Lewellen's testimony “entirely credible” noting that, “Defendants called no witnesses to rebut it.”
This gives me the occasion to make a more general comment about this case— one which, I suspect, would apply to many Voting Rights cases. Possibly because of the identity of the defendants, the nature of the issues, or the economics or politics— if you will — of this type of litigation, certain issues were not developed with the usual adversarial zeal. True, the defendants vigorously defended against allegations that they intentionally or purposely discriminated against blacks in formulating and implementing the 1981 redistricting plan. Beyond that, the defense was at best spotty. Little effort was made to develop all the facts and circumstances surrounding each incident alluded to by the plaintiffs’ many witnesses.
With respect to the Lewellen incident, the defendants did bring on Senator Ben-ham but they did not call the prosecutor or the sheriff or others with knowledge of the facts including Mr. Lewellen’s client and relatives. The majority states that it believed Senator Benham’s testimony that he had nothing to do with the prosecution. The majority also acknowledges that, “Mr. Lewellen’s difficulties were to some degree of his own making.” Majority op. at 210-11.
On the basis of Mr. Lewellen’s own testimony, I am convinced that he opened himself up to serious charges. But mostly, I disagree with the majority’s finding, “We do not think that a white lawyer, even one who opposed the powers that be, would have been treated this way.” Id. I find myself in complete disagreement with this finding. It is inconceivable to me that a white lawyer in the same circumstances would have been treated any differently. Maybe political campaigns in other states are more “civilized” but in the rough and tumble of Arkansas politics, one does not give his political enemies such opportunities and expect them not to try to take advantage thereof. And this is not to express any judgment on the “merits,” since those merits were never tried out in this case. It is to say that a serious issue was raised which legitimately might be considered to bear upon an candidate’s qualification to serve his district as a state senator. Perhaps, absent the political race, the issue of witness-bribing would not have been pursued. If not, this whole episode would reflect badly on the prosecutor and upon his exercise of his official discretion. *257 But, in any event, I am convinced that if the “in” political faction would seize upon the situation for political advantage against a black lawyer, they would as assuredly have done so against a white lawyer.
So I agree with the majority that “there has been a long history of official discrimination.” I agree “[i]t has a present effect.” But I am unaware of any evidence that “some instances of it [official discrimination] are still occurring.”
2. Senate Factor # 5.
The extent to which members of the minority group in the state or political subdivision bear the effects of discrimination in such areas as education, employment and health, which hinder their ability to participate effectively in the political process.
The majority, under this heading, states:
Many more whites than blacks are high-school graduates, and many blacks were educated in schools that were both separate (by compulsion of law) and unequal. There is a tremendous amount of white poverty, especially in the Delta, but poverty among blacks is more nearly the rule than the exception. Blacks tend to have fewer telephones and fewer cars. If a person has no phone, cannot read, and does not own a car, the ability to do almost everything in the modern world, including vote, is severely curtailed.
Id. at 211.
The majority acknowledges that the defendants have not produced these conditions; indeed they “are determined to alleviate them.” But, he notes, “as long as blacks, as a group, remain in a depressed socio-eco-nomic status, their political power will necessarily be less and the impact upon them of vote-diluting boundary lines will be greater.” Id. at 211. Then the majority incorporates into its opinion a table “setting out some of the economic facts of life for the two races in the 16 counties where this suit challenges district lines.” Id. at 211.
This issue has already been discussed supra, perhaps ad nauseam. In any event, see discussion in Sections III and V, above, and in Whitfield, at 1384-85. It is my view that Section 2 of the Voting Rights Act does not call upon courts to decide in the abstract if deficiencies of blacks as a group compared to whites in education, economic status, or health (evidenced by less education, more illiteracy, less income and wealth, fewer telephones, fewer automobiles, etc.) result in the curtailment of “the ability to do almost everything in the modern world, including vote.” Id. at 211. It simply begs the question and adds nothing of substance to the discussion to say that the political power of those in a depressed socio-economic status will be less and the impact upon them of vote-diluting boundary lines will be greater. The socio-economic level of blacks in the area will be the same regardless of where the lines are drawn. It is also noted that the majority opinion speaks of “ability ... to vote.” This is a common mistake made by courts in Voting Rights cases. The statute nowhere uses the term “ability to”; it unambiguously uses “opportunity to.”
3. Senate Factor # 3.
The extent to which the state or political subdivision has used unusually large election districts, majority vote requirements, anti-single shot provisions, or other voting practices or procedures that may enhance the opportunity for discrimination against the minority.
Judge Arnold’s caption here is “Use of Majority-Vote Requirements and Other Devices.” He states:
There is a requirement that candidates for the State Legislature get a majority of the vote in the primary to obtain a party nomination. And this majority-vote requirement, in four separate recent instances in which black candidates either won office by a plurality or were threatening to win, has been expanded to cover elections (e.g., for municipal judge) to which it has traditionally not been applied. * * * For present purposes we simply note the existence of a majority-vote requirement affecting races for the *258 General Assembly and many other public offices in Arkansas.
Id. at 212.
Later in the opinion, after discussing the Senate factors separately^ J

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9705374. Public record. Not legal advice.