Full opinion text
PER CURIAM. Various voters, members of Congress, the City of Austin, Texas, the GI Forum, the League of United Latin American Citizens (“LULAC”), and voters of Cherokee County challenge congressional redistricting set forth in Plan 1374C, enacted into law by the Texas Legislature on October 12, 2003, and precleared by the Department of Justice on December 19, 2003. Plaintiffs allege that Plan 1374C is invalid because (1) Texas may not redistrict mid-decade; (2) the Plan unconstitutionally discriminates on the basis of race; (3) the Plan is an unconstitutional partisan gerrymander; and (4) various districts in Plan 1374C dilute the voting strength of minorities in violation of § 2 of the Voting Rights Act. We hold that Plaintiffs have failed to prove that the State statute prescribing the lines for the thirty-two congressional seats in Texas violates the United States Constitution or fails to comply with § 2 of the Voting Rights Act. We also reject Plaintiffs’ argument that the Texas Legislature lacked authority to draw new districts after a federal court drew them following the 2000 census. We decide only the legality of Plan 1374C, not its wisdom. Whether the Texas Legislature has acted in the best interest of Texas is a judgment that belongs to the people who elected the officials whose act is challenged in this case. Nor does the reality that this is a reprise of the act of the 1991 State Legislature weigh with the court’s decision beyond its marker of the impact of the computer-drawn map. This extraordinary change in the ability to slice thin the lines brings welcome assistance, but comes with a high cost of creating much greater potential for abuse. Congress can assist by banning mid-decade redistricting, which it has the clear constitutional authority to do, as many states have done. In Texas, the phenomenon is new but already old. The larger lesson of 1991 and 2003 is that the only check upon these grasps of power lie with the voter. But, perversely, these seizures entail political moves that too often dance close to avoiding the recall of the disagreeing voter. We know it is rough and tumble politics, and we are ever mindful that the judiciary must call the fouls without participating in the game. We must nonetheless express concern that in the age of technology this is a very different game. Part I presents the factual background of the case. Part II addresses whether Texas had the legislative authority to draw new district lines mid-decade. Part III addresses generic claims that challenge the map as a whole, namely, claims of racial discrimination and partisan gerrymandering asserted to be unconstitutionally extreme. Part IV lays out the legal principles governing our analysis of Plaintiffs’ more specific claims. Part V addresses the § 2 vote dilution claims as directed toward the Dallas-Fort Worth area, as well as the other potential influence districts in East and Central Texas. Finally, Part VI addresses the § 2 vote dilution and Shaw claims directed at districts drawn in South and West Texas. I The U.S. Census Bureau released the 2000 decennial census in March 2001. As a result of its population growth, Texas was due two additional seats in the House of Representatives, bringing its total to thirty-two. Texas in turn had to draw thirty-two equipopulous districts to account for its additional representation and to meet the constitutional requirement of one man, one vote. Under Texas law, the Texas Legislature had the task of drawing the districts. Despite the imminency of state primary elections, the 77th State Legislature failed to adopt a redistricting plan. Lawsuits in state and federal court followed. Voters and others requested that the court draw a new map. The Balderas court deferred to state court efforts to adopt a state redistricting plan. When these state court efforts failed, we recognized that the State’s existing congressional districts were unconstitutionally malapportioned and reluctantly accepted the duty to prepare a new, constitutional plan. Without a baseline state plan in place, the court invited the parties to submit redistricting recommendations. Following a bench trial, the panel applied neutral districting factors and adopted Plan 1151C to govern the State’s 2002 elections. The panel refused suggestions not required by law and rejected policy choices better left to legislative consideration. Balderas ultimately ordered that Plan 1151C would govern the 2002 congressional elections. Certain plaintiffs representing Hispanic voters appealed the decision, arguing that the panel erred by not drawing an additional Hispanic district in the Southwest region of the state. The Supreme Court summarily affirmed. As a result of the 2002 elections, the Texas congressional delegation included seventeen Democrats and fifteen Republicans. However, with their newly drawn state districts, legislative Republicans gained control over both houses of the Texas State Legislature, as well as control over all prominent Executive Branch positions. The Texas Legislature revisited redistricting in 2003. The Legislature was unable to adopt a new plan during the 2003 regular session, in part because Democratic House members, by absenting themselves, denied a quorum. Governor Perry called the Legislature into special session. During the first special session, the House approved a new congressional map, but the Senate failed to do so because its “two-thirds” supermajority rule permitted the Democrats to block a vote. To break the impasse, Lieutenant Governor Dewhurst announced that he would suspend operation of the two-thirds rule in any future special session considering congressional redistricting legislation. Although Democratic legislators again attempted to prevent formation of a quorum, the 78th Legislature ultimately was able to accomplish during its third special session what the 77th Legislature could not: pass a congressional redistricting plan, Plan 1374C. II Plaintiffs argue that Texas lacks the power, under either the Constitution or the election statutes, to redraw congressional districts in the middle of the decade. Some Plaintiffs find this limitation implicit in the text of the Elections Clause, while others urge that Congress has affirmatively limited state authority to redistrict by § 2c of Title II. A third strain of arguments focuses on the Balderas judgment and asserts either that the judgment collaterally estops the State from enacting a new plan or that the judgment exhausted the State’s authority to redistrict. Although there are compelling arguments why it would be good policy for states to abstain from drawing district lines mid-decade, Plaintiffs ultimately fail to provide any authority — constitutional, statutory, or judicial — demonstrating that mid-decade redistricting is forbidden in Texas. • In fact, what meager authority we have found seems to allow the states to redraw lines mid-decade, at least where a court drew the existing lines within the decade. As we will explain, the Elections Clause of the Constitution grants states broad power to regulate the “time, place, and manner of holding elections for Senators and Representatives.” Congress has the power to override state regulations or to impose rules of its own, but it has not chosen to limit redistricting to the period immediately following the release of the decennial census. Judicial decisions, both by the Supreme Court and by district courts throughout the country, have allowed and even invited states to redraw district lines following a court’s action. Against this backdrop of authority, we cannot agree that either the Constitution or the voting statutes restricts the states to once-a-decade redistricting. We therefore reject the argument that the Texas Legislature had no authority to draw the lines of congressional districts and deny Plaintiffs’ Motion for Summary Judgment. A The Constitution of the United States delegates to states the power to develop procedures governing congressional elections by the Elections Clause. It provides: The times, places and manner of holding elections for Senators and Representatives, shall be prescribed in each state by the legislature thereof; but the Congress may at any time by law make or alter such regulations, except as to the places of choosing Senators. This provision delegates to state legislatures both the power and responsibility to redraw congressional voting districts. States do not possess this authority as an incident of them sovereignty. Rather, the Elections Clause delegates power to the states in broad terms. While states may only enact “time, places and manner” regulations, the text does not define or otherwise limit the states’ discretion. Nonetheless, Congress may, if it chooses, make regulations governing the “times, places and manner” of holding elections or alter regulations enacted by state legislatures. This reservation to Congress, however, is not a direct limitation on the scope of the states’ authority; rather, it allows Congress to override state election decisions or to enact regulations of its own. Unless and until Congress chooses to act, the states’ power to redistrict remains unlimited by constitutional text. Plaintiffs would read an implicit, temporal limitation into the text of the Elections Clause, but the argument is empty. The argument is that the Elections Clause allows Congress to pass laws regulating elections “at any time,” but does not explicitly allow states to act at any time. Plaintiffs reason that, by failing to include the phrase “at any time” within the grant of power to states, the Elections Clause implicitly denies that power. Hence, they conclude, the Elections Clause allows states to draw districts only once, immediately after the release of each decennial census. We are unpersuaded. The argument tortures the text of the Clause, which by its clear terms has no such limitation. That Congress may exercise its power at any time says nothing of the states’ power to enact election regulations, especially when the states are given this authority in terms that suggest no restriction beyond those that Congress may impose. To paraphrase the argument, if the Framers had intended to limit the states’ power in such a specific way, surely they would have done so explicitly. This is just too convenient and tailored. For the first fifty years of our Nation’s history, it was not uncommon for representatives to be chosen in statewide, at-large elections; states often did not divide into congressional districts. The notion that the Elections Clause somehow embodies an implicit limitation on mid-decade redistricting is therefore anachronistic at best; presumably, it never entered the Framers’ minds. Even today, there is no constitutional requirement that states must necessarily subdivide their territory into districts; the requirement that states draw districts is largely a creature of statute. Even if the Elections Clause did not give states the power to prescribe election regulations at “any” time, Plaintiffs do not explain why we should read the Clause to allow states to exercise election power only one time after the census or how any such interpretation could find mooring in the text of the Constitution. What Plaintiffs ask us to do, then, is not simply to add a single limitation to the Elections Clause’s grant of power; they ask that we create, out of whole cloth, a detailed scheme for states to exercise their constitutional authority. This we cannot do. Judicial decisions have implicitly rejected the notion that a state may impose only one redistricting map each decade. While no court has, to our knowledge, explicitly addressed whether states have the power to do so under the Constitution, innumerable decisions have either assumed that a state legislature may draw new lines mid-decade or have invited a state to do so after the court has drawn a map in a remedial role. The Supreme Court has intimated on several occasions that states may redistrict mid-decade following court action. In Upham v. Seamon, the Court noted that the parties “urged that because the District Court’s plan is only an interim plan and is subject to replacement by the legislature in 1983, the injury to appellants, if any, will not be irreparable.” Similarly, in Branch v. Smith, the Court noted that the district court’s holding that state courts could not constitutionally create redistricting plans, a holding the Court vacated, was not “binding upon state and federal officials should Mississippi seek in the future to administer a redistricting plan adopted by the Chancery Court.” The Court’s most vivid statement on the topic came in Wise v. Lipscomb: Legislative bodies should not leave their reapportionment tasks to the federal courts; but when those with legislative responsibilities do not respond, or the imminence of a state election makes it impractical for them to do so, it becomes the “unwelcome obligation” of the federal court to devise and impose a reapportionment plan pending later legislative action. The Court’s language contemplates that any federal court plan must give way to later legislative redistricting efforts. And, of course, the displaced plan here was judicially crafted. No legislative plan is being displaced. Given this authority and the broad language of the Elections Clause, we conclude that the Elections Clause itself — the provision in the Constitution that grants states the authority to redistrict — does not limit states to redistricting once per decade, particularly where, as here, the State’s action follows a court-imposed map. If any such limitation is to be found, then it must be found elsewhere. B Some Plaintiffs would locate limitations in other clauses in the Constitution, most notably the Census Clause. Those Plaintiffs point to two phrases which, we are told, prevent a state from redistricting any time it chooses. The Census Clause provides, in pertinent part: Representatives ... shall be apportioned among the several States ... according to their respective numbers. The actual Enumeration shall be made within three years after the first meeting of the Congress of the United States, and within every subsequent term' often years, in such manner as they shall by law direct. Plaintiffs argue that the phrase “according to their respective numbers” and the sentence requiring enumeration every ten years together impose affirmative limitations on the states’ power to redistrict. We disagree. The Census Clause by its terms applies to the apportionment of seats in the House of Representatives among the states. It ensures that no state is over-represented in the House by linking each state’s delegation to the state’s population. The Clause says nothing about how district lines must be drawn. It is true, of course, that the Census Clause affects the states’ obligation to redistrict. When the census is released every ten years, states are required to redistrict in order to accommodate changes in population and to bring its districts into conformity with the Equal Protection rule of one man, one vote. But the Census Clause does not expressly limit the states’ ability to redistrict more frequently. Indeed, the Census Clause does not mention the states or their power to redistrict, and we fail to see how it can limit a power it never references. Plaintiffs concede that the constitutional text itself is silent regarding repeated reapportionment. They nonetheless insist that the Supreme Court’s decision in U.S. Term Limits, Inc. v. Thornton prevents States from “adding” to the Constitution a provision entitling states to redistrict mid-decade. Plaintiffs’ reliance on U.S. Term Limits is misplaced. U.S. Term Limits was not based on the Elections or Census Clauses, but on the Qualifications Clause of Article I. In U.S. Term Limits, the Court rejected an effort by Arkansas to impose term limits on its Representatives because a state cannot add qualifications to those enumerated in the Constitution. The Court noted that, “in certain limited contexts, the power to regulate the incidents of the federal system is not a reserved power of the States, but rather is delegated by the Constitution.” “In the absence of any constitutional delegation to the States of power to add qualifications to those enumerated in the Constitution, such a power does not exist.” Drawing on this language, Plaintiffs urge that, by undertaking mid-decade redistricting, Texas has in effect “added” to the text of the Elections Clause a power to redistrict intradecenially. We disagree. As a preliminary matter, Texas has “added” nothing to the text of the Constitution by redrawing its district lines mid-decade. The Elections Clause is a broad grant of authority to the states that is checked only by the power of Congress to make or alter voting regulations. Nowhere in the text of the Elections Clause or in judicial interpretations is there a limitation of the frequency with which states may exercise their power. Since the power given the states is broad enough to encompass mid-decade redistricting, it cannot be fairly said — as Plaintiffs assert — that Texas has “added” anything to the Constitution’s text. U.S. Term Limits, by contrast, dealt with a very different situation. It dealt with the Qualifications Clause, a provision that is of a “precise, limited nature.” By adding a term limit, Arkansas engrafted a provision into the Qualifications Clause that was not there before. The same cannot be said here. The Qualifications Clause in U.S. Term Limits by its terms gave the states no role to play in setting the qualifications of representatives. The Elections Clause is different: it appeals to both state legislatures and Congress to set the “time, manner and place” of holding elections. When a state exercises this authority, it adds nothing to the Constitution. Fairly viewed, it is Plaintiffs who seek to “add” to the Constitution. They ask us to add an implicit limitation to the Elections Clause that states may prescribe the “times, places and manner” of holding elections only after each decennial census. There is no basis for this addition, either in the text of the Constitution or in court decisions interpreting it. In sum, neither the Census Clause nor the Qualifications Clause limits state power to redraw district lines intradecennially. C The Elections Clause grants Congress the power to pass voting regulations or to alter voting regulations enacted by the states. Several Plaintiffs argue that Congress has exercised its power to limit the authority of the states to redistrict. The most relevant statutory provisions are in Title 2. Section 2a specifies that the President must inform Congress after each decennial census of the population of each state and the corresponding number of representatives each state is entitled to send to the House of Representatives. Section 2c requires every state entitled to more than one representative under these census figures to create a number of districts equivalent to the number of representatives it sends to the House. Congress has given courts a significant role in redrawing district lines. Should a state legislature not redistrict after the decennial census, for example, a court is empowered to remedy any defects in the state’s maps. At the same time, the Supreme Court has emphasized that primary responsibility for drawing the lines of congressional districts remains with state legislatures. The Court has reaffirmed this principle in a series of decisions constraining federal courts in redistricting cases. The Court, for example, insists that the judiciary defer to legislative districting if the legislative plan meets population equality and racial fairness standards applicable to court-ordered plans. In addition, the judicial role is remedial; courts are not to replace valid legislative judgments with their own preferences. Absent evidence that a state will fail to perform its redistricting duty in a timely fashion, a federal court can neither obstruct the State’s redistricting efforts nor allow federal litigation to impede it. Similarly, courts conducting redistricting are obliged to honor the State’s redistricting traditions. Plaintiffs assert that § 2c constrains the power of states to redraw district lines at will. Their argument comprises three basic steps. First, in § 2c Congress revoked the power granted to state legislatures by the Elections Clause and delegated a far more limited power. Second, they urge that § 2c allows redistricting once after the decennial census. As a result, they urge that when Balderas imposed Plan 1151C, the judgment effectively “used up” the redistrieting power delegated to the states through § 2c. Under this view, Plan 1374C is invalid because Texas had no power to enact it once Balderas installed Plan 1151C. We are not persuaded. First, we cannot agree that by passing § 2c, Congress revoked the authority granted states by the Elections Clause. To be sure, § 2c constrains the redistricting decisions that states can make, but it cannot fairly be said to revoke the states’ power. Plaintiffs advance a specie of preemption argument: that by passing legislation that relates in some way to congressional districting, Congress has effectively usurped the entire redistricting field. This interpretation of § 2c ignores the text of § 2c and misreads the Elections Clause. Section 2c has no language suggesting that Congress is “revoking” the authority granted by the Elections Clause, or even that Congress is “redelegating” a more limited authority. If Congress wishes to revoke the states’ redistricting authority, it must do so clearly. Moreover, Plaintiffs’ argument tacitly assumes that any congressional regulation relating to election procedures automatically revokes the broad authority given states under the Elections Clause. The structure of the Clause, however, suggests that the primary source of election regulation is state law, federal law supplementing state procedures or overriding them only when necessary. Reading § 2c for what it is — a congressional regulation imposing a single election requirement on the states — preserves the relative roles of Congress and the states under the Elections Clause. Second, even if § 2c did somehow revoke and redelegate redistricting authority, we disagree that § 2c would allow redistricting only on the decennium. Plaintiffs base their argument on the text of § 2c, which provides in pertinent part: In each State entitled ... to more than one Representative under an apportionment made pursuant to the provisions of section 2a(a) of this title [the decennial census], there shall be established by law a number of districts equal to the number of Representatives to which such State is so entitled, and Representatives shall be elected only from districts so established, no district to elect more than one Representative .... Plaintiffs argue that this provision directly links the “time” at which the state must redistrict to the “mode” in which it must exercise its redistricting power. That is, the clause requiring states to establish districts immediately follows the reference to the decennial census. Plaintiffs also reference several other federal statutes imposing “time” and “manner” restrictions, apparently in an effort to bolster the notion that federal law restricts a state’s ability to redistrict frequently. While it is true that states are under an obligation to redistrict after each census, we find nothing in § 2c that limits the frequency with which they may do so. It would have been remarkably easy for Congress to impose such a limitation in the text of § 2c, but it did not. It merely required states with more than one representative to divide their territory into a like number of districts. Other courts have similarly failed to find such a limitation in § 2c. As we noted above, numerous courts have either allowed or invited state legislatures to enact redistricting plans in the middle of the decade when a court has previously imposed a plan. Section 2c was in force when each of these decisions was handed down. The final step in Plaintiffs’ § 2c argument is similarly flawed. Plaintiffs conclude that Balderas, by establishing a constitutional redistricting plan, “used up” the state’s constitutional authority to redistrict. Plaintiffs frame their argument by again focusing on the meaning of § 2c— which, they assert, reveals that court redistricting is constitutionally “equivalent” for purposes of Article I, Section 4 to state legislative redistricting. We agree that court-drawn maps are functionally equivalent to legislative maps, although there are key differences between the two. But our agreement on this point is of little help to Plaintiffs because they fail to persuade that a state cannot redraw district lines after a valid court-imposed plan is in place. That is, Balderas could only “use up” the State’s constitutional authority to redistrict if the state is somehow constrained to draw district lines only once per decade. We have rejected Plaintiffs’ argument that redistricting following a judicially imposed plan is forbidden, and we do not reach Plaintiffs’ Balderas claim. D Plaintiffs also assert that Texas “tradition” prevents the State Legislature from redrawing district lines in the middle of the decade. They argue that, under Supreme Court precedent, the State Legislature was bound to follow its traditional redistricting principles in creating a new map. Since Texas does not have either a history or tradition of mid-decade redistricting, Plan 1374C is said to be invalid. Plaintiffs’ argument misreads Supreme Court precedent. Although the Supreme Court has required courts to use a state’s “districting traditions” when drafting voting maps, the Court has never held that a state legislature is bound to follow its prior districting practices indefinitely. Indeed, “tradition” normally fills a very different role in redistricting suits. Plaintiffs cite two Supreme Court decisions, White v. Weiser and Branch v. Smith, to support their argument, but neither decision holds that states are bound to follow state tradition in drawing maps. In White, the Supreme Court held that federal courts, not state legislatures, must abide state districting traditions; the Court iterated that legislatures, not courts, have “primary jurisdiction” over reapportionment, and reinforced the notion that court intervention in the redistricting process is meant to be minor and remedial. Branch v. Smith is also inapposite. In Branch, the Court attempted to reconcile § 2c with the seemingly conflicting requirements of § 2a(c)(5). The Court explained that when a “federal court redistricts a State in a manner that complies with that State’s substantive districting principles, it does so ‘in the manner provided by the law thereof.’ ” Plaintiffs cite this passage as evidence that states are constrained by tradition. Presumably, their argument is that since the Court held that a federal court redistricts “in the manner provided by the law [of the state]” only when it follows the state’s districting traditions, so too a state legislature can only redistrict “in the manner provided by the law [of the state]” when it follows the state’s districting traditions. Plaintiffs misread this passage. Branch does not hold that a state must follow its redistricting traditions without deviation. Rather, the passage is focused solely on the power of federal courts. It specifically holds that if a federal court redistricts a state using the state’s traditions and preferences, the court does so “in the manner provided by the law” of the state, such that § 2a(c)(5)’s requirement that at-large districts be used is not invoked. In any event, it would be illogical to require a state legislature to adhere strictly to the state’s districting principles whenever it undertook to redraw the state’s map. Any such rule would, in effect, freeze the state’s districting traditions in place. We can find no reasoned basis for such a rule. E Plaintiffs’ final argument focuses on the effect of the Balderas judgment. They argue that Balderas was a final judgment that is binding on the State because it was a party to the proceeding. They argue that the State in enacting Plan 1374C is attempting to avoid the judgment in that case, and that the State is collaterally estopped from contesting the use of Plan 1151C. The prerequisites for collateral es-toppel are not met here. Issue preclusion has four basic requirements: (1) the issue must be identical to an issue involved in prior litigation; (2) the issue must have been fully and vigorously litigated; (3) the issue must have been necessarily decided in the prior litigation; and (4) special circumstances must not render preclusion inappropriate or unfair. The first two requirements are not met here. It is true, as Plaintiffs argue, that the two majority-minority districts — Districts 18 and 30— are involved in both cases, as are several other features of the two plans. But the Balderas court’s tasks were different: it had to bring the district map into line with the equal population rule, while accommodating the two new congressional districts and obeying the Voting Rights Act. The issues are different here. We must first decide whether the State has the constitutional power under the Elections Clause or § 2c to redraw district lines mid-decade. This issue did not arise in Balderas. We also must examine a never-before-considered legislative districting plan, Plan 1374C, and decide whether it passes muster under the Constitution and the Voting Rights Act. We find no merit in Plaintiffs’ collateral estoppel argument. F Perhaps the most compelling arguments offered by Plaintiffs against mid-decade redistricting focus on the impropriety — rather than the illegality — of frequent redistricting. A significant portion of Plaintiffs’ arguments raise policy concerns. For example, Plaintiffs argue that frequent redrawing of district lines will undermine democratic accountability and exact a heavy cost on state independence as federal congressional leaders exert their influence to shape state districting behavior. As persuasive as these arguments may be, they are directed to the wrong forum. If Congress chooses to ban intradecennial redistricting, it has the power to do so under the Elections Clause. We have found no provision in either the U.S. Constitution, federal law, or state law that proscribes mid-decade redistricting, and our mandate ends there. G We deny Plaintiffs’ Motions to Dismiss and Motions for Summary Judgment on the issue of mid-decade redistricting and collateral estoppel. III Turning to the merits, we will first consider Plaintiffs’ claims in their two most sweeping forms. First, Plaintiffs argue that the proposed plan must be set aside in its entirety because it is laced with impermissible racial discrimination against Blacks and Latinos in violation of the Equal Protection Clause of the United States Constitution. Second, they allege that Plan 1374C is an impermissible partisan gerrymander. After addressing these allegations, we will then discuss a kindred but “analytically distinct claim” of racial discrimination under the Equal Protection Clause that in the drawing of various districts the Legislature was predominately motivated by race. We will reject the broad-based claims at the outset and return to these Shaw claims in our consideration of the more focused claims under § 2 leveled against specific districts. That process will amplify the findings that underpin our conclusion that Plaintiffs have failed to prove purposeful racial discrimination. A Since Washington v. Davis, a claimed denial of Equal Protection has required proof that discrimination was purposeful; differential or adverse impact alone is not sufficient. In Davis, the Supreme Court considered an employment discrimination claim brought under the Equal Protection Clause in the District of Columbia before Title VII was extended to the District. Writing for the Court, Justice White rejected the argument that a party alleging racial discrimination under the Equal Protection Clause could focus solely on the racially differential impact of the challenged state practice. He explained that the Court had “never held that the constitutional standard for adjudicating claims of invidious racial discrimination [was] identical to the standards applicable under Title VII,” which in certain circumstances allowed the adverse impact upon a protected minority to constitute sufficient proof of a statutory violation. He concluded that the Equal Protection Clause required more; it demanded proof that the challenged state action was intended to be discriminatory. Davis marked only the first step in the Court’s analysis of Equal Protection claims, and in its wake came a range of questions, including questions about the allocations of the burden of proof and about the character of proof demanded by the requirement that racial discrimination be purposeful. The next term, in Arlington Heights v. Metropolitan Housing Corp., the Court repudiated the Seventh Circuit’s emphasis on the adverse impact of a challenged zoning decision in a Chicago suburb, rather than its purpose. Writing for the majority, Justice Powell — while acknowledging that proof of purpose would seldom be easy — explained that it was not necessary to prove that a decision was motivated by a single concern, or even that a particular purpose was the dominant or primary one. There need only be proof “that a discriminatory purpose has been a motivating factor in the decision.” The inquiry, he explained, may start with the impact of the legislative act, which while not alone sufficient to prove purpose remains relevant, and continue to the exploration of the act’s history, including any contemporary statements by members of the decision-making body. Two years later in Personnel Administrator of Mass. v. Feeney, the Court upheld a Massachusetts statute granting lifetime preferences to veterans for civil service positions. The Court rejected claims that because few women could qualify, the statute discriminated against women in violation of the Equal Protection Clause. Writing for the majority, Justice Stewart pointed to findings of the district court that the statute had a legitimate purpose — awarding benefits to veterans — and was not a pretext for discriminating against women. He then offered a critical observation, one that proved to be a powerful and enduring feature of Equal Protection Clause jurisprudence: It would [be] disingenuous to say that the adverse consequences of this legislation for women were unintended, in the sense that they were not volitional or in the sense that they were not foreseeable. “Discriminatory purpose,” however, implies more than intent as volition or intent as awareness of consequences. It implies that the decision maker, in this case a state legislature, selected or reaffirmed a particular course of action at least in part “because of,” not merely “in spite of,” its adverse effects upon an identifiable group. After grappling with the explicit remedial use of race by courts, legislative bodies, and various federal and state institutions, the Court turned to redistricting plans drawn to enhance the opportunity of minorities protected by the Voting Rights Act where race had become more than another of many necessary considerations in line-drawing. Justice Ginsberg put it succinctly in Miller v. Johnson: Two Terms ago, in Shaw v. Reno, this Court took up a claim “analytically distinct” from a vote dilution claim. Shaw authorized judicial intervention in “extremely irregular” apportionments, in which the legislature cast aside traditional districting practices to consider race alone — in the Shaw case, to create a district in North Carolina in which African-Americans would compose a majority of the voters. In short, Miller instructs that we are to engage in a searching review of district lines “predominantly motivated” by race when a state subordinates traditional districting practices to race. Plaintiffs have not proven their claim of racial discrimination. There is little question but that the single-minded purpose of the Texas Legislature in enacting Plan 1374C was to gain partisan advantage. With the Republican sweep of statewide offices in 2000 came control of the Legislative Redistricting Board. The Legislature was initially unable to redraw district lines for either state legislative or congressional seats. The federal courts drew a congressional district plan and after one modification held that the plans for the Texas House of Representatives and Senate drawn by the Republican-controlled Board were legal. Although the judicial plan for the congressional districts reflected the growing strength of the Republican Party in Texas, with 20 of the 32 seats offering a Republican advantage, the voters in 2002 split their tickets and elected only 15 Republicans. Six incumbent Anglo Democrats were elected by narrow margins in Republican-leaning districts. With Republicans in control of the State Legislature, they set out to increase their representation in the congressional delegation to 22. As we will explain, all that happened thereafter flowed from this objective, with the give-and-take inherent in the legislative process along the way. The result disadvantaged Democrats. And a high percentage of Blacks and Latinos are Democrats. The majority of Plaintiffs’ Equal Protection claims focus on District 26 in Plan 1374C, which reflects Republican refusal to preserve Democratic Congressman Martin Frost’s District 24 while at the same time preserving adjoining Republican districts. To remove Congressman Frost, he needed to lose a large portion of his Democratic constituency, many of whom lived in a predominantly Black area of Tarrant County. This group of voters was taken from previous District 24 and grouped with Denton and Cooke Counties, which are north of Tarrant County. Plaintiffs view the protrusion that reaches down to include the Black Democrats as evidence of intentional racial discrimination. We disagree. That African-Americans in Texas vote overwhelmingly for Democratic candidates and that various political compromises were reached to arrive at the current district lines belie the assertion that Texas intentionally discriminated against the African-American voters. Bob Davis, who assisted the Texas Senate in drawing various plans and submitting them to the Legislative Redistricting Board, credibly testified as to the various political considerations that combined to result in the lines of current Congressional District 26. First, Representative Kent Grusendorf, who served on the House side of the districting committee, wanted his State House District — which covers the city of Arlington — to remain whole. Arlington’s western boundary forms most of the eastern edge of District 26’s southern protrusion. Second, the court-drawn map, Plan 1151C, split State House Representative Glenn Lewis’s District 95 into two different congressional districts. Representative Lewis wanted his district to fall completely within one congressional district. House District 95 now forms the southern tip of Plan 1374C’s District 26, explaining the southernmost boundaries of District 26. Third, Democrats could not be placed in Congressional District 12 to the west because District 12 would then become “far more Democrat and very marginally Republican, if Republican at all.” Finally, Representative Phil King, the chairman of the redistricting bill in the Texas House, wanted Parker and Wise Counties to be included completely in Congresswoman Granger’s District 12. But if the Tarrant County population fell in District 12, population would need to be taken out, likely from Parker or Wise counties. So, the net result was the political consequences of putting that territory, either in District 12 or District 6, were not good. And District 26, which was, in the Court Plan, this area in here, adjacent to it, and so it was placed on the District 26 because the political structure of 26 could handle that particular component of the Tarrant County population and still produce Republican results for District 26. We find these unchallenged explanations to be credible, and we find that including the large Democratic area of southeast Tarrant County in District 26 was the sole product of political give-and-take by legislative members over their own state districts and the effort to not create another Democratic district. The actions were not taken because of race; they were taken in spite of it. Plaintiffs’ expert’s testimony supports our conclusion that politics, not race, drove Plan 1374C. The Jackson Plaintiffs’ expert, Dr. John Alford, professor of political science at Rice University, testified that “one would have a very hard time not recognizing that the State has a very strong partisan motivation in this particular map.” Representative Phil King testified that the purpose of the plan was to make the congressional delegation more reflective of state voting trends. The ami-cus brief of the Texas House Democratic Caucus and Representatives John Lewis, Chris Bell, Martin Frost, Sheila Jackson Lee, and Nick Lampson filed in Vieth v. Jubelirer in support of Appellants told the Supreme Court that “[t]he newly dominant Republicans ... decided to redraw the state’s congressional districts solely for the purpose of seizing between five and seven seats from Democratic incumbents.” It was clear from the evidence that this assertion is true. Former Lieutenant Governor Bill Ratliff, one of the most highly regarded members of the Senate and commonly referred to as the conscience of the Senate, testified that political gain for the Republicans was 110% of the motivation for the Plan, that it was “the entire motivation.” He explained that he is leaving the Senate before the expiration of his term in large part out of disappointment at its partisan turn. In the course of the redistricting bill’s passage, Senator Ratliff, a Republican, refused to abandon the two-thirds rule, which does not allow a bill to come to the floor without the support of 21 members, a practice calculated to promote consensus building. Plaintiffs nonetheless insist that there was racial discrimination along the way in the specific drawing of the lines. We will examine this less sweeping assertion as we examine the particular districts that are alleged to have been drawn in violation of § 2 of the Voting Rights Act, or in defiance of the principles of Shaw v. Reno. While keenly aware of the long history of discrimination against Latinos and Blacks in Texas, and recognizing that their long struggle for economic and personal freedom is not over, we are compelled to conclude that this plan was a political product from start to finish. The myriad decisions made during its creation were made in spite of, and not because of, its effects upon Blacks and Latinos. To find otherwise would frustrate the fundamentals of Washington v. Davis and inject the federal courts into a political game for which they are ill-suited, and indeed in which they are charged not to participate under the most basic principles of federalism and separation of power. Concluding that the purpose requirement of the Equal Protection Clause was met on these facts would pass redistricting from the state legislatures and redistricting boards to the federal courts. This is not to say that we wholly withdraw, of course. We simply recognize the fundamental decision in Washington v. Davis that federal judges are not legislative players; we are only the guardians of the boundaries. As Justice Ginsburg put it, while “[legislative dis-tricting is highly political business ... [generations of rank discrimination against [minorities] account for [the court’s] surveillance.” Having been watchful, we are not persuaded that this most fundamental boundary of the Equal Protection Clause was crossed. In the redistricting arena, an area that has proven most reluctant to yield discernible standards, there are large incentives to reach for the seeming certainty of the Equal Protection Clause’s familiar condemnation of purposeful racial discrimination and draw upon its comforting moral force, rather than confront the task of developing proper standards or concede their ephemeral political character. To our eyes, the certainty is an illusion, and its deployment to heel radical partisan line-drawing by state legislatures is a mistake. And turning to Washington v. Davis’s insistence of purpose, rather than confronting directly the questions now before the Court in Vieth v. Jubelirer, is just an old Texas two-step. B We have no hesitation in concluding that, under current law, this court cannot strike down Plan 1374C on the basis that it is an illegal partisan gerrymander. Seventeen years ago, the Supreme Court held in Davis v. Bandemer that an excessively political or partisan gerrymander presents a justiciable issue under the Equal Protection Clause. But the Court was unable to settle upon a manageable standard for addressing such claims. It is now painfully clear that Justice Powell’s concern that the decision offered a “ ‘constitutional green light’ to would-be gerrymandered” has been realized. Bandemer insisted upon proof of both discriminatory purpose and discriminatory effect, two requirements that are difficult to meet in the courtroom, particularly as they have been interpreted by the lower courts. That the response to this difficulty must be to develop a new standard does not necessarily follow. The question remains how much of a role the judiciary ought to play in policing the political give-and-take of redistricting. It may be the most difficult question, but it is certainly the most important. When the Supreme Court resolves Vi-eth, it may choose to retreat from its decision that the question is justiciable, or it may offer more guidance on the nature of the required effect. Perhaps the Court will draw on its experience in developing federal common law in the antitrust arena, which draws a fine line between competitive effect and injury to competition. We have learned firsthand what will result if the Court chooses to do neither. Throughout this case we have borne witness to the powerful, conflicting forces nurtured by Bandemer’s holding that the judiciary is to address “excessive” partisan line-drawing, while leaving the issue virtually unenforceable. Inevitably, as the political party in power uses district lines to lock in its present advantage, the party out of power attempts to stretch the protective cover of the Voting Rights Act, urging dilution of critical standards that may, if accepted, aid their party in the short-run but work to the detriment of persons now protected by the Act in the long-run. Casting the appearance both that there is a wrong and that the judiciary stands ready with a remedy, Bandemer as applied steps on legislative incentives for self-correction. There are ameliorations available short of a grand judicial pronouncement, remedies which are perhaps superior. In Texas, redistricting advantages can be overcome through the political process. The exchange of political advantage between the Democrats in 1990 and the Republicans in 2000 demonstrates this reality. If the Democratic party takes the main statewide offices, Democrats can block a state legislative redistricting plan and write their own through the Legislative Redistricting Board. The resulting State Legislature could then redraw the congressional lines. Even if the partisan gerrymander issue were not justiciable but Congress allowed the drawing of new lines only when there was no extant legal plan, and in any event no more often than once in a decade, the picture would likely be quite different. That the limitation would only reach congressional seats and not state legislatures themselves does not mean that its effects would not be larger. As the record in this case makes clear, Congress often plays a large role in state redistricting, not only of congressional districts but also of the state chambers themselves. Members of Congress work to protect their incumbency and to affect the partisan makeup of the House, with keen interest in the election of members of the State Legislature. Accordingly, a rule that the game is played only once per decade could matter a great deal in the real world of politics. It is fair to ask what if Congress had imposed a once-a-decade rule seventeen years ago, even if Bandemer had dismissed the case as presenting a non-justiciable political question. Our point is that if the judiciary must rein in partisan gerrymanders, limitations that focus upon the time and circumstance of partisan line-drawing and less upon the “some but not too much” genre of strictures offer the best of an ugly array of choices. Drawing upon the Voting Rights Act jurisprudence to give Bandemer teeth may be the worst of choices. IV For convenience, we record some of the general principles to which we will refer in addressing Plaintiffs’ challenges to specific districts. Section 2 of the Voting Rights Act of 1965 (as amended) provides: (a) No voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color, or in contravention of the guarantees set fort in section 1973b(f)(2) of this title, as provided in subsection (b) of this section. (b) A violation of subsection (a) of this section is established if, based on the totality of the circumstances, it is shown that the political processes leading to nomination or election in the State or political subdivision are not equally open to participation by members of a class of citizens protected by subsection (a) of this section in that its members have less opportunity than other members of the electorate to participate in the political process and 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. To prevail on a claim of vote dilution under § 2, a plaintiff must, as a threshold requirement, satisfy the three now-familiar preconditions set forth in Thornburg v. Gingles: (1) a minority group must be “sufficiently large and geographically compact to constitute a majority in a single-member district”; (2) the group must be “politically cohesive”; and (3) sufficient racial bloc voting must exist such that the white majority usually defeats the minority’s preferred candidate. Gingles withheld deciding whether there could ever be a showing of potential success without a showing that a clear majority could gather in the absence of the accused practice or structure. The lower courts, with the exception of a recent decision by a divided panel of the First Circuit, have strictly enforced the 50% rule, including the Fifth Circuit. There are powerful reasons to be exacting, as we will explain, but the facts of this case offer no occasion to decide if there is a tolerable deviation from the rule that a minority must demonstrate that, absent an accused practice or structure, it had the potential to elect a candidate of its choice by proof that it could constitute 50% of the district. Although satisfying the Gin-gles factors is a prerequisite, meeting the three conditions is alone not enough to prevail under § 2. If they are met, the court is to consider the totality of the circumstances, including a searching inquiry into whether the political process is equally open to minority voters. In Johnson v. De Grandy, the Court explained how to evaluate dilution under a single-member districting plan and discussed the extent of a state’s duty to create additional majority-minority districts under § 2. In De Grandy, the plaintiffs attempted to establish liability by pointing to a number of places where minority voters had been “cracked” and placed in majority-white districts where their votes would be “submerged” and ineffective. The Court rejected the dilution claim of the Hispanic and African-American voters because the challenged districting plan provided both sets of voters “rough proportionality,” the opportunity to exercise electoral control in a number of districts that roughly corresponded to their share of the relevant population. The Court emphasized that proportionality does not provide a complete or mechanical defense to a § 2 suit. The Court also made it clear that proportionality is significant in evaluating dilution claims and has become a preeminent measure of fairness in redistricting. Now known as “De Grandy proportionality,” dilution may be found to be absent under the totality of the circumstances when the protected minority groups “constitute effective voting majorities in a number of districts ... substantially proportional to their share in the population.” In Shaw v. Reno (“Shaw I”), the Court addressed the constitutionality of a district drawn with race as the predominant motivation, as evidenced by a bizarrely-shaped district drawn to augment minority voting strength. The Court held that such a district could be challenged, depending on how it was drawn, under the Equal Protection Clause. In Shaw v. Hunt (“Shaw II”), the Court concluded that a racially gerrymandered district would be subject to strict scrutiny, and that compliance with § 2 could justify a racially gerrymandered district only if the remedial district was narrowly tailored toward that end. In so holding, the Court held that a remedy for vote dilution in one part of the state, where it was possible to draw an additional, compact majority-minority district, is not narrowly tailored to comply with § 2 if the remedial district is drawn in a different part of the state where polarized voting also exists, but where a compact district cannot be crafted. In so holding, the Court stated: Arguing, as appellees do and the District Court did, that the State may draw the district anywhere derives from a misconception of the vote-dilution claim. To accept that the district may be placed anywhere implies that the claim, and hence the coordinate right to an undiluted vote (to cast a ballot equal among voters), belongs to the minority as a group and not to its individual members. It does not. Similarly, in De Grandy, the Court stated that one reason for rejecting the inflexible safe harbor rule the state advocated in that case, under which no dilution can occur as a matter of law if the percentage of single member districts in which minority voters form an effective majority mirrors the minority voters’ percentage of the relevant population, was that it rested on an unexplored premise of highly suspect validity: that in any given voting jurisdiction (or portion of that jurisdiction under consideration), the rights of some minority voters under § 2 may be traded off against the rights of other members of the same minority class. Under the State’s view, the most blatant racial gerrymandering in half of a county’s single-member districts would be irrelevant under § 2 if offset by political gerrymandering in the other half, so long as proportionality was the bottom line. With these basic principles in mind, we now turn to Plaintiffs’ specific claims. V We first examine the § 2 challenges to the districts in Central and East Texas, most notably District 24 in the Dallas-Fort Worth area. As a preliminary matter, it bears emphasis that the majority requirement of the first Gingles precondition cannot be met in these districts by summing Black and Hispanic voter populations. Plaintiffs cite Brewer v. Ham for the proposition that minority groups may be combined to satisfy Gingles’s majority requirement. Brewer, however, allowed for minority combination when the groups vote cohesively. Here, there is no serious dispute but that Blacks and Hispanics do not vote cohesively in primary elections, where their allegiance is free of party affiliation. Minority voters must have the potential to elect in the absence of the accused practice or structure if their claim of injury by that practice or structure is to be sustained. A 1 Georgia v. Ashcroft is the most recent discussion of the factual and legal distinctions between majority-minority, coalition, and influence districts. Majority-minority or “safe” districts are voting districts with a majority of minority voters, making it “highly likely that minority voters will be able to elect the candidate of their choice.” Coalition districts are voting districts where minority voters “ ‘are able to form coalitions with voters from other racial and ethnic groups, having no need to be a majority within a single district in order to elect candidates of their choice.’ ” Influence districts are voting districts “where minority voters may not be able to elect a candidate of choice but can play a substantial, if not decisive, role in the electoral process.” The elected representatives in influence districts, as a result of the influence of minority voting, take minority interests into account. Georgia tested the limits of these types of districts when it redrew its state senate’s voting districts following the 2000 census. The previous map, which was finally precleared after much litigation, included various safe districts. Shifting its strategy, the Democratic-controlled Legislature “unpacked” three of the safe districts and spread the minority voters to create influence and coalition districts. The goal was to increase the overall influence of minorities in Georgia politics. The Justice Department challenged the plan as retrogressive because of the reduction of minorities in the previously safe districts. The district court found the plan retrogressive because the change in the three safe districts created less opportunity for minorities to elect the representatives of their choice. Georgia appealed the decision to the Supreme Court, arguing that preclearance was appropriate because the new map did not harm the minorities’ “effective exercise of the electoral franchise.” Georgia asked the Court to examine the voting plan as a whole so that the increase in voting strength in other influence and coalition districts could offset the decrease in the three previously safe districts. The Justice Department argued that the district court correctly found retrogression based solely on the decrease in minority population in the three previously safe districts. Georgia’s argument prevailed. The Court held that states are free to choose the best way to avoid retrogression and ensure equal opportunity to minority voters. To determine whether a new map is retrogressive, the Court examined the state as a whole and considered all the relevant circumstances, “such as the ability of minority voters to elect their candidate of choice, the extent of the minority group’s opportunity to participate in the political process, and the feasibility of creating a nonretrogressive plan.” The Court accepted that minority interests may be better served by coalition and influence districts rather than safe districts. The Court noted that although safe districts ensure descriptive representation, they also “isolat[e] minority voters from the rest of the state, and risk[ ] narrowing political influence to only a fraction of political districts” — that “various studies have suggested that the most effective way t