Full opinion text
ORDER CARNES, District Judge. The two above-captioned actions involve the reapportionment of electoral districts for the voters of Cobb County, Georgia. In each of these cases, the plaintiffs have asserted a claim based on an alleged violation of the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution, arising out of the failure of the Georgia General Assembly (hereinafter “the Legislature”) to pass legislation re-drawing the electoral posts for the Cobb County Board of Education (hereinafter, “the Board”) and the electoral districts for the Cobb County Commission (hereinafter, “the Commission”), respectively. The plaintiffs, who are individual Cobb County voters and members of the Board and the Commission, have filed these two related actions against the Cobb County Board of Elections and Registration to enjoin all future elections of the Board and Commission under the current electoral districts, except for the election of the Chairman of the Commission, which is an “at-large” position elected by all citizens of Cobb County. In an Order issued May 31, 2002, the Court declared the current districts for both the Board and the Commission unconstitutional, enjoined defendants from conducting future elections under that plan, and presented its own interim remedial plan for the upcoming election. Because of time constraints, the Court did not issue a full order explaining its legal conclusions with respect to the remedial plan. Accordingly, this Order sets out the Court’s legal conclusions concerning the issuance of the remedial plan previously provided to the parties. BACKGROUND Cobb County, Georgia (the “County”), is one of 159 counties in Georgia and comprises a suburban area northwest of the city of Atlanta, including the municipalities of Smyrna, Marietta, Austell, Powder Springs, Kennesaw, and Acworth. For the purpose of electing five commissioners to serve on the County Commission, the County is divided geographically into four single-member electoral districts, with the fifth member of the Commission, the Chairman, elected on an at-large basis by all voters in the County. For the purpose of electing the seven members of the County School Board, the County is divided geographically into seven posts, excluding the City of Marietta, which maintains an independent school system separate from that of the County. Following the 1990 Census, the geographical boundaries for the seven voting districts for the School Board and the four voting districts for the Commission were re-drawn, and at that time, the districts represented populations of roughly equal size, as reflected in the 1990 Census figures. The 1990 Census data revealed that the County had a total population of 447,745 and, at the time the districts were drawn in 1992, the population for the four Commission districts ranged from a low of 108,501 in District 1 to a high of 115,246 in District 2. Similarly, the population of the County had been distributed among the seven School Board posts on a roughly equal basis. The 2000 Census, however, reflected a significant increase in the population of the County to a total of 607,751, and also reflected tremendous growth in the northwest part of the County, as compared with relatively stagnant growth in the east part, which is almost fully developed. It is undisputed that the current population figures for the County, as reflected in the 2000 Census, have resulted in gross disparities among the populations of the voting districts for both the Commission and the Board. (The 1992 plan for the Commission voting districts is attached hereto as Appendix A, and the 1992 plan for the School Board voting districts is attached hereto as Appendix F.) Under the current geographic boundaries for the four Commission districts, District One has a population of 191,889; District Two has 138,530; District Three has 130,053; and District Four has 147,279. (Plaintiffs’ Hearing Brief in the Perry action [12] at 8.) (See Table 1, supra.) Under the current boundaries for the School Board posts, Post One has a population of 115,152; Post Two has 73,792; Post Three has 81,798; Post Four has 73,760; Post Five has 64,-321; Post Six has 62,699; and Post Seven has 78,408. (Smith Compl., Ex. B.) (See Table 2.) As a result of these population disparities among the districts, in early 2002, legislation was proposed in the Georgia General Assembly to create new boundaries for the voting districts for both the Board and the Commission that would better equalize the population distribution among the districts. Members of the Georgia House of Representatives from Cobb County, in consultation with members of the County Commission, introduced House Bill 1141 (HR 1141) to the House, which proposed to reapportion the population of the County among new Commission Districts. (Ehrhart Aff. at ¶ 8.) HR 1141 was signed by a majority of the members of the delegation from the County in both houses, indicating their approval of the bill. (Id. at ¶ 9.) HR 1141 was then passed by a vote of the House of Representatives. The House also passed similar legislation that would have created new boundaries for the School Board posts, which had also been approved by the local delegation from the County. The Perry plaintiffs’ proposed plan for the County Commission districts, which mirrors the plan passed by the local delegation and the State House, is attached hereto as Appendix B. The Smith plaintiffs’ proposed plan for the School Board districts, which was approved by the same bodies, is attached hereto as Appendix G. Ordinarily, when “local legislation” has received the requisite number of signatures of representatives and senators whose districts lie within the locality that is affected by the legislation, the House and Senate pass the bill as a matter of local courtesy. See DeJulio v. Georgia, 290 F.3d 1291, 1292-94 (11th Cir.2002). As the Eleventh Circuit has recognized: The underlying assumption of local courtesy is that the bill affects only a certain city or county, and, therefore, representatives and senators of other districts should defer to that local delegation’s judgment. Local courtesy is a custom, however, and is not provided for in either the House or Senate rules. Should a member of the House or Senate choose to challenge local legislation on the floor, local courtesy is not enforced. Id. at 1294. Although the proposed plans for the new voting districts were approved by the local delegation and passed by the House, the plans were never sent to the State Senate for its approval. Rather, as the Senate Reapportionment Committee refused to allow the plans out of committee to be voted on by the Senate, the State Senate was never in a position to review or approve these plans. Accordingly, the 2002 Session of the Georgia General Assembly expired with the proposed redistricting plans still languishing in a committee of the State Senate. No special session is scheduled for the Legislature to convene at any time before the next election, which is set to be held on August 20, 2002; indeed, the Legislature is not scheduled to reconvene until January, 2003. (Intervenors’ Ex. 2; Ehrhart Aff. at ¶ 11.) Thus, because the Legislature failed to approve the proposed new plans for the voting districts for the Cobb County Commission or School Board, the 1992 districts are still in effect for the voters of Cobb County. Furthermore, all the parties agree that neither the School Board nor the Commission has the legislative authority to act independently of the Georgia Legislature to create new voting districts. Accordingly, the School Board and the Commission are without any authority to change the boundaries of the existing districts before the upcoming election. On April 23, 2002, Earle Smith, a resident of Cobb County and a voter in the Cobb County School District, along with Curt Johnston, Laura Searcy, Johnny Johnson, Lindsey Tippins, Teresa Plenge, Betty Gray, and Gordon O’Neill, who are all current members of the Cobb County Board of Education as well as voters in the Cobb County School District (collectively, the “Smith plaintiffs”), filed a Complaint for Declaratory and Injunctive Relief against the Cobb County Board of Elections and Registrations and its members, as well as the Director of Elections, Sharon Wingfield, in their official capacities. The Smith plaintiffs brought a claim pursuant to Article 4, Section 2 and the Fourteenth Amendment of the Constitution, and under 42 U.S.C. §§ 1983 and 1988, alleging that their rights under the Equal Protection Clause of the Fourteenth Amendment would be violated if an election were to be held under the current voting districts for the School Board. The plaintiffs also brought a claim under the Georgia Constitution, pursuant to Article 1, Section 1, Paragraph 2. The School Board plaintiffs argue that the current voting districts violate the constitutional principle of “one-person, one-vote,” and they allege that, if the School Board election were to be held under the current voting districts, their rights and the rights of 'all Cobb County voters to have equal participation in the electoral process would be violated. In particular, the plaintiffs allege that the voting strength of the voters in Post One would be severely diluted, whereas the voting strength of voters in Posts Five and Six would be disproportionate to the population in those districts. As a remedy for the allegedly unconstitutional voting districts, the Smith plaintiffs seek declaratory and injunctive relief. Specifically, they seek a declaration by the Court that the current boundaries for the School Board voting districts are unconstitutional because they violate the principle of “one-person, one-vote.” They further seek an injunction prohibiting the Board of Elections from holding any future elections under the current voting districts until either this Court or the Georgia General Assembly enacts the alternative districting plan that has been proposed by the Cobb County Board of Education, which the plaintiffs contend is consistent with the requirements of the Constitution. Finally, the Smith plaintiffs seek an award of costs and attorney’s fees. On May 6, 2002, a separate Complaint was filed in this Court by Andy Perry and Randall Bedgood, residents of Cobb County who vote in District One for the County Commission under the current district boundaries, as well as William J. Byrne, Billy L. Askea, Joe L. Thompson, Samuel S. Olens, and George Woody Thompson, who are voters in Cobb County and current members of the County Commission (collectively, the “Perry plaintiffs”). The Perry plaintiffs have also brought claims under the Fourteenth Amendment and the Georgia Constitution for a violation of their right to Equal Protection under the laws and unlawful dilution of their voting strength in the elections for the County Commission. As in the Smith case, the Perry Complaint seeks Declaratory and Injunctive Relief against the Cobb County Board of Elections and Registrations and its members, and requests that the Court declare the current Commission voting districts unconstitutional and enter an Order that creates new geographic boundaries for the districts in accordance with the plan proposed in HR 1141 and passed by the Georgia House of Representatives. (See Perry Compl., Attachment A.) The defendants timely filed Answers in both actions. Although they do not challenge the plaintiffs’ allegations that the current voting districts for either the Board or the Commission are unconstitutional under the current geographic boundaries, the defendants state that they have not violated any provision of the State or Federal Constitution or any other law, and contend that it is the sole obligation and duty of the Georgia Legislature to reapportion the County voting districts. (See Answer in Pern/ case [7] at 2.) Furthermore, defendants state that the Board of Elections is without the power to postpone, modify or stop the election because the voting districts are not apportioned correctly. (Id.) Defendants seek relief from the Court in determining whether the elections should be held under the current schedule, as required by state and federal law, and should the Court determine that the current voting districts are unconstitutional, defendants request an Order from the Court setting an alternative schedule for the upcoming elections that “minimizes the confusion, delay and expense to the voters of Cobb County.” (Id. at 9.) On May 8, 2002, the parties in both actions filed Joint Motions for an Expedited Scheduling Conference, seeking an expedited hearing before the Court to determine whether elections should proceed under the current schedule. The parties indicated in their joint motions that the qualifying period for the upcoming elections was set for June 19-21, 2002, with the primary elections scheduled for August 20, 2002. The parties jointly represented to the Court that a new districting plan that complied with constitutional requirements was required to be in place by May 17, 2002, in order to avoid any disruption to the statutory schedule for the qualifying period and election for the School Board and the Commission. On the basis of the parties’ representations, the Court held a brief conference on May 10, 2002. At that conference, the defendants indicated that the election would be able to proceed under the statutory time period if a new districting plan were in place by May 31, 2002. The defendants represented to the Court that if a new districting plan were not in place on or before that date, however, the Board of Elections would not have enough time to implement a new plan prior to the upcoming election, because of statutory time constraints. Further, if the scheduled election were delayed, a special election would be required at an estimated expense of $2 million to the taxpayers of Cobb County. The defendants also indicated to the Court that they did not oppose the districting plans proposed by the plaintiffs, which were the plans that had been approved by the Cobb County delegation and passed by the House of Representatives. In light of this “drop-dead” date of May 31, 2002 for a ruling on the proposed plans, the Court scheduled an evidentiary hearing in both actions for May 24, 2002. Just three days before the hearing was scheduled to take place, on May 21, 2002, David L. Wilkerson and Mark A. Bell filed motions to intervene as defendants in both the Smith and Pem/ actions; also the Georgia Democratic Party filed motions in both cases to appear as an amicus curiae. Although the Commission did not object to the parties’ intervention in the Perry case, the School Board did object to intervention in the Smith case. Because of the extreme time constraints, however, the Court did not have an opportunity to rule on the motions to intervene before the hearing scheduled for May 24, 2002. At that hearing, it granted the movants’ request to intervene in the Commission case. Although the Court reserved ruling on the motions to intervene in the School Board case, it allowed the putative intervenors to participate fully in the hearing and oral argument held on that date, just as if they had been granted intervenor status. Further, the Court allowed intervenors and the putative intervenors to present proposed redistricting plans for both the Board and the Commission and to present arguments in favor of their proposed plans and against the plaintiffs’ proposed plans. (The Perry intervenors’ proposed plan for the County Commission districts is attached hereto as Appendix C; the Smith intervenors’ proposed plan for the School Board districts is attached hereto as Appendix H.) After considering the arguments and evidence presented by all the parties and intervenors during the hearing on May 24, 2002, the Court issued an Order on May 31, 2002, declaring the current districting plans for the Commission and the School Board unconstitutional, and establishing an interim remedial redistricting plan that would be in effect solely for the next election. All references to the “Court’s Plan” herein are to the districting plans previously issued by Order of this Court on May 31, 2002. (The Court’s plan for the County Commission districts is attached hereto as Appendix D, and the Court’s plan for the School Board districts is attached hereto as Appendix I.) DISCUSSION I. The 1990 Districts Violate the One-Person, One-Vote Principle and Are Unconstitutional No right is more precious in a free country than that of having a voice in the election of those who make the laws under which, as good citizens, we must live. Other rights, even the most basic, are illusory if the right to vote is undermined. Our Constitution leaves no room for classification of people in a way that unnecessarily abridges this right. Wesberry v. Sanders, 376 U.S. 1, 17-18, 84 S.Ct. 526, 11 L.Ed.2d 481 (1964). The plaintiffs in both actions have asserted a claim under the Equal Protection Clause of the Fourteenth Amendment, arguing that their constitutional right to vote will be infringed if the County elections are held pursuant to the geographic boundaries of the existing districts. It is a fundamental constitutional principle that each citizen’s vote must be given the same weight as every other citizen’s vote in state and national elections. See Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964). The right to vote freely for the candidate of one’s choice is of the essence of a democratic society, and any restrictions on that right strike at the heart of representative government. And the right of suffrage can be denied by a debasement or dilution of the weight of a citizen’s vote just as effectively as by wholly prohibiting the free exercise of the franchise. Id. at 555, 84 S.Ct. 1362. In light of this fundamental principle, the Supreme Court held in Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964), that the Fourteenth Amendment’s guarantee of equal protection under the law requires that states ensure that every citizen’s vote is given equal weight to that of every other citizen in elections for state legislators. This ruling has become known as the “one-person, one-vote” principle. Legislators represent people, not trees or acres. Legislators are elected by voters, not farms or cities or economic interests. As long as ours is a representative form of government, and our legislatures are those instruments of government elected directly by and directly representative of the people, the right to elect legislators in a free and unimpaired fashion is a bedrock of our political system. Id. at 562, 84 S.Ct. 1362. The Court later extended the principle of “one-person, one-vote” to elections for county and local government officials. Avery v. Midland County, Texas, 390 U.S. 474, 88 S.Ct. 1114, 20 L.Ed.2d 45 (1968). Under the Equal Protection Clause of the Fourteenth Amendment, states and local governments must provide each qualified voter with an equal opportunity to participate in any election in which persons are selected by popular vote to perform governmental functions. Hadley v. Junior College Dist., 397 U.S. 50, 56, 90 S.Ct. 791, 25 L.Ed.2d 45 (1970). In order to ensure that all votes are given equal weight, when members of an elected body are chosen by popular vote from separate districts, each district must be established so that equal numbers of voters can vote for proportionally equal numbers of officials. Id. Thus, because the County Commissioners and members of the School Board are elected by the people of Cobb County to perform governmental functions, the Fourteenth Amendment requires the State of Georgia to establish voting districts for both the Commission and the Board that have substantially equal numbers of voters in each district in order to comply with the “one-person, one-vote” principle. In the instant action, it is undisputed that the geographic boundaries for the existing districts are not drawn so that equal numbers of voters will be voting for a proportionally equal number of officials. Instead, the results of the 2000 Census indicate that there are significant disparities in the populations for the four Commission districts and the seven School Board posts. With respect to the four Commission districts, the population varies from a high of 191,889 in District One to a low of 130,053 in District Three. With respect to the seven School Board posts, the population varies from a high of 115,-152 in Post One to a low of 62,699 in Post Six. All the parties in this action agree that these substantial differences in the populations of the Commission and School Board districts under the 1992 plan violate the principle of “one-person, one-vote.” Specifically, the 2000 Census revealed that the total population of Cobb County in 2000 was 607,751. Apportionment plans are evaluated under the one-person, one-vote principle by determining the amount by which the population in each district deviates from the size of the ideal district, and by determining the overall deviation between the two districts with the greatest disparity in population. See Abrams v. Johnson, 521 U.S. 74, 98, 117 S.Ct. 1925, 138 L.Ed.2d 285 (1997). Accordingly, by using that number and dividing by four, an “ideal district size” for the four Commission voting districts that would result in nearly perfect equality among the populations would be 151,938. Under the current geographic boundaries for the four Commission districts, District One has a population of 191,889; District Two has 138,530; District Three has 130,053; and District Four has 147,279. Thus, District One deviates from the ideal district by 26.29%, District Two by -8.82%, District Three by -14.40%, and District Four by -3.07%, and the overall or total deviation of the Commission districts under the 1992 plan is 40.70%. Under the 1992 geographic boundaries for the School Board posts, Post One has a population of 115,152; Post Two has 73,-792; Post Three has 81,798; Post Four has 73,760; Post Five has 64,321; Post Six has 62,699; and Post Seven has 78,408. Based on an ideal district size of 78,429, Post One has a deviation of 46.58%, Post Two has a deviation of -6.07%, Post Three has a deviation of 4.12%, Post Four has a deviation of -6.11%, Post Five has a deviation of -18.13%, Post Six has a deviation of -20.19%, and Post Seven has a deviation of -0.19%. The total deviation of the School Board districts under the 1992 plan is thus 66.77%. Although the Supreme Court has not established an absolute “cut-off’ for the maximum overall deviation that an apportionment plan may have before it violates the Fourteenth Amendment, the Court has held that any deviation in state legislative apportionment plans smaller than 10% overall is considered de minimis and is thus consistent with the requirements of the constitution; any deviation greater than 10%, however, must be justified by the state on the grounds that the deviation is necessary to further rational state policies, such as preserving the integrity of political subdivision lines. See Voinovich v. Quilter, 507 U.S. 146, 161, 113 S.Ct. 1149, 122 L.Ed.2d 500 (1993); Brown v. Thomson, 462 U.S. 835, 842-843, 103 S.Ct. 2690, 77 L.Ed.2d 214 (1983); Connor v. Finch, 431 U.S. 407, 418, 97 S.Ct. 1828, 52 L.Ed.2d 465 (1977). [M]inor deviations from mathematical equality among state legislative districts are insufficient to make out a prima facie case of invidious discrimination under the Fourteenth Amendment so as to require justification by the State. Our decisions have established, as a general matter, that an apportionment plan with a maximum population deviation under 10% falls within this category of minor deviations. A plan with larger disparities in population, however, creates a prima facie case of discrimination and therefore must be justified by the State. Brown, 462 U.S. at 842-842, 103 S.Ct. 2690; see also Voinovich, 507 U.S. at 161, 113 S.Ct. 1149. Under the existing plan, the overall deviations of 40.70% for the Commission districts and 66.77% for the School Board districts far exceed a deviation of 10% and no party has advanced any argument that these significant deviations are justified by any furtherance of rational state policies. Instead, the parties agree that the deviations in the plans violate the one-person, one-vote principle under the Fourteenth Amendment. Thus, the Court declares the current districting plans for the Cobb County Commission and the School Board unconstitutional and new geographic boundaries must be drawn in order to remedy the current disparities in population among the districts. The Supreme Court has repeatedly emphasized that it is the duty and responsibility of the State to determine the apportionment of electoral districts within its borders. See Voinovich, 507 U.S. at 156, 113 S.Ct. 1149; Growe v. Emison, 507 U.S. 25, 34, 113 S.Ct. 1075, 122 L.Ed.2d 388 (1993); Upham v. Seamon, 456 U.S. 37, 41, 102 S.Ct. 1518, 71 L.Ed.2d 725 (1982); Chapman v. Meier, 420 U.S. 1, 27, 95 S.Ct. 751, 42 L.Ed.2d 766 (1975). Federal courts are not allowed to intervene in state apportionment matters in the absence of a violation of federal law. Voinovich, 507 U.S. at 156, 113 S.Ct. 1149. Because the current boundaries for the voting districts in Cobb County violate the plaintiffs’ constitutional rights, however, and because the Georgia Senate has refused to fulfill its responsibility to create new voting districts that comply with federal law, the Court must intervene to remedy the constitutional violations. [OJnce a State’s legislative apportionment scheme has been found to be unconstitutional, it would be the unusual case in which a court would be justified in not taking appropriate action to insure that no further elections are conducted under the invalid plan. However, under certain circumstances, such as where an impending election is imminent and a State’s election machinery is already in progress, equitable considerations might justify a court in withholding the granting of immediately effective relief in a legislative apportionment case, even though the existing apportionment scheme was found invalid. Reynolds v. Sims, 377 U.S. 533, 585, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964) (emphasis added). The Court concludes that neither of the two pending actions presents “the unusual case” in which the Court would be justified in failing to take appropriate action to remedy the constitutional violations of the current apportionment plan. In fashioning a remedial plan, however, the Court has been mindful of the Supreme Court’s direction that courts should “reasonably endeavor to avoid a disruption of the election process which might result from requiring precipitate changes that could make unreasonable or embarrassing demands on a State in adjusting to the requirements of the court’s decree.” Id. The Court now turns its attention to the proposed plans presented by the parties and to the plans ultimately created by the Court. II. The Perry Case (County Commission Districts) As noted above, the existing 1992 plan for the voting districts for the Cobb County Board of Commissioners is unconstitutional because it violates the fundamental principle of one-person, one-vote. The plaintiffs in the Perry case argue that the Court should adopt the plan devised by the local Cobb Legislature delegations after consultation with the County Commission, which plan was passed by the Georgia House of Representatives. They have submitted that plan to the Court. (See Appendix B.) The intervenors object to the plaintiffs’ proposed plan on the ground that the plaintiffs’ plan allegedly violates Section 5 of the Voting Rights Act of 1965, 42 U.S.C. §§ 1973 et seq. (hereinafter the “VRA”). The intervenors have submitted an alternative plan that they have asked the Court to adopt. (See Appendix C.) The Court has reviewed and considered the plans submitted by both the plaintiffs and intervenors, and has devised its own remedial plan to comply with the requirements of the Constitution and the VRA. A. Plaintiffs’ Proposed Plan In order to remedy the obvious constitutional violations inherent in the existing voting districts for the Cobb County Commission, in early 2002, the members of the Commission participated in drafting a new plan to present to the Georgia Legislature that would better equalize the population among the four districts. As noted, the plan had the approval of the majority of the members of the local delegation from Cobb County and it passed the House of Representatives as HR 1141. Because the Senate committee to which the plans were initially sent refused to allow the plans out of committee to be voted on by the entire Senate, however, the Senate was never even given an opportunity to vote on the plan. The Perry plaintiffs have asked the Court to adopt the plan proposed in HR 1141 as the Court’s plan for the voting districts of the Cobb County Commission. They argue that the plan remedies the constitutional violations of the 1992 plan and complies with the one-person, one-vote principle of the Fourteenth Amendment. They also contend that the proposed plan complies with all requirements of the VRA, including Sections 2 and 5. They further argue that the plan reflects the legislative policies of the Cobb County Commission, whose members have been elected by the voters of Cobb County, and thus, the Court should defer to those policies and adopt their plan. Under the plaintiffs’ proposed plan (Appendix B), District One has a deviation of - 0.85%, District Two 0.48%, District Three 1.33%, and District Four -0.96%, with a total overall deviation of 2.28%. Thus, the plaintiffs’ proposed plan remedies the large population deviations in the existing plan, and the Court finds that it is well within the maximum 10% population deviation ordinarily allowed for legislative plans under the one-person, one-vote standard. B. Intervenors’ Proposed Plan and Objections To Plaintiffs’ Plan The intervenors are two African-American voters who reside in District Four. The Amicus Democratic Party supports their position. The intervenors’ proposed plan for the County Commission districts is attached hereto as Appendix C. Under the intervenors’ proposed plan, District One has a deviation of 0.81%, District Two a deviation of -0.58%, District Three a deviation of 0.72%, and District Four a deviation of -0.95%, with a total overall deviation of 1.77%. Thus, like the plaintiffs’ proposed plan, the intervenors’ proposed plan remedies the large population deviations in the existing plan, and the Court finds that it is well within the maximum 10% population deviation ordinarily allowed for legislative plans under the one-person, one-vote standard. Although the intervenors argue that their plan better achieves population equality than does the plaintiffs’ plan, their real objection to the latter’s plan is its alleged failure to comply with Section 5 of the Voting Rights Act. Noting that § 5 has been interpreted to prohibit retrogression in existing minority strength, the interve-nors contend that, as to District Four, the plaintiffs’ plan does “retrogress,” whereas their plan does not. Specifically, interve-nors note that under the existing plan, the black voting age population (BVAP) in District Four is approximately 31%. Under the plaintiffs’ proposed plan, the BVAP in that district is 24%, whereas, under the intervenors’ plan, the BVAP is approximately 30.5%. Intervenors contend that their small diminution of BVAP does not constitute retrogression, whereas plaintiffs 7% decrease does. In addition to arguing the existence of retrogression in the plaintiffs’ plan, in-tervenors also argue that the Court is not permitted to adopt as its plan the plaintiffs’ plan. Intervenors note that § 5 requires that any plan adopted by a legislative group be precleared by the Department of Justice or the D.C. District Court. According to intervenors, while this Court may avoid these pre-clearance requirements if it creates its own remedial plan, the Court will trigger the need for preclearance — which could not be accomplished in time for the upcoming elections — if it merely rubber stamps the plaintiffs’ plan. Further, intervenors argue that, pre-clearance concerns aside, this Court should not defer to the plan promulgated by plaintiffs because, although it was approved by the local delegation and State House, it was never passed by the Senate and thus is not entitled to deference as a legislative plan. Instead, intervenors argue that this Court should give deference to the last legislative enactment concerning Cobb Commission districts, which is the 1992 Plan. As the Court obviously cannot give complete deference to that plan, because it contains unconstitutional population deviations between districts, interve-nors argue that the Court should use that plan as a starting point and make only “minimal changes” to the plan, sufficient to even out population deviations. In this same vein, intervenors contend that their own plan comports with the “minimal change” guidepost more than does that of the plaintiffs. C. Deference to Legislative Plans, Generally, and The “Minimum Change” Construct Both the plaintiffs and intervenors appear to agree that this Court is required to give deference to the State’s legislative policies when it drafts a remedial plan. They disagree, however, about which plan — the 1992 Plan or the 2002 Plan— best reflects those policies and, hence, which of these plans deserves the most deference from this Court. Leaving aside for the moment an analysis of the impact of Section 5 on this litigation, the Court turns first to the questions of what deference generally a court should pay to a legislative plan, which legislative plan should this Court be looking at, and the applicability of the “minimal change” construct in this particular case. 1. Must Deference Be Given to the Plaintiffs ’Plan? As noted, the plaintiffs have argued that their proposed plan, which was recently devised and approved by the elected members of the local Cobb legislative delegation, in consultation with members of the County Commission, reflects the current legislative policies of the State and the Commission and is entitled to deference from this Court, even though it was never formally enacted by the entire legislature during the 2002 session. Intervenors counter, among other things, that the failure of the legislature to enact the plan is fatal to plaintiffs’ argument that its proposed plan is entitled to deference. Plaintiffs’ contention arguably finds some support in Tallahassee Branch of NAACP v. Leon County, Fla., 827 F.2d 1436 (11th Cir.1987), in which the Eleventh Circuit gave deference to a proposal by a county commission that had not been enacted into law. In Leon County, black voters had challenged the at-large election system as a violation of the prohibition against dilution of minority voting rights, under § 2 of the VRA. Apparently believing that the plaintiffs had a good case, the defendant commissioners obtained a continuance of the trial in order to submit, to a referendum vote, a new plan that provided for a mixed system including some single member districts and some at large seats. Under Florida law, the commissioners could apparently propose such a plan, but they had no power to implement the plan; instead, such a change could not be effected without the approval of the electorate through a referendum. The voters rejected the change, however. Admitting liability in the case — that is, that an all at-large system violated § 2 — the commissioners proceeded again to draft a plan that consisted of some single member and some at large member districts. This time, however, the commissioners did not put the plan to a vote, but instead presented it to the court as a proposed remedial plan. Id., 827 F.2d at 1437. Even though the commission clearly-lacked authority to implement such a change on its own, the court adopted the commission’s plan as its own, determining that the plan was “legislatively enacted” and therefore “entitled to the deference normally afforded legislative judgment in apportionment matters.” 827 F.2d at 1437-38. This characterization of the plan as legislative by the court was pivotal, in that a judicial remedial plan should typically include only single member districts, whereas a legislative plan was not restricted to single member districts. Id. On appeal, the Eleventh Circuit concurred with the district court’s conclusion that the proposed plan was legislatively enacted and entitled to deference, even though the commission had no power to implement its plan without the consent of the electorate. Id. at 1440 (“a broad definition of ‘legislatively enacted’ leaves reapportionment to be performed by a legislative body of the state rather than the federal judiciary”); see also McDaniel v. Sanchez, 452 U.S. 130, 153, 101 S.Ct. 2224, 68 L.Ed.2d 724 (1981) (“the essential characteristic of a legislative plan is the exercise of legislative judgment”); Wise v. Lipscomb, 437 U.S. 535, 548, 98 S.Ct. 2493, 57 L.Ed.2d 411 (1978) (“[T]he plan proposed by the Dallas City Council in this case must be considered legislative, even if the council had no power to reapportion itself.... The essential point is that the Dallas City Council exercised a legislative judgment, reflecting the policy choices of the elected representatives of the people, rather than the remedial directive of a federal court.”) (Powell, J., concurring). As Judge Evans points out in her recent order in the Fulton County redistricting case, Bodker v. Taylor C.A. No. 1:02-CV-0999-ODE, N.D.Ga. (Order dated June 5, 2002) (hereinafter “Bodker”), the Leon County case can be distinguished on its facts because, under Florida law, the county commission had the authority to create' its own reapportionment scheme, subject to approval by a referendum submitted to the voters, whereas in Georgia, only the legislature has the authority to approve reapportionment plans for counties. See Leon County, 827 F.2d at 1437-1438. Thus, Judge Evans held that the plan proposed by the Fulton County Commission was not entitled to deference as a legislatively enacted plan because it was not created or approved by the Georgia General Assembly: the only body with the authority to do so. Bodker, at 6-11. Moreover, as will be explained infra in the section of this Order discussing pre-clearance requirements under § 5 of the VRA, a determination that the plaintiffs’ plan was legislatively enacted only serves to bolster intervenors’ argument that the plan must be precleared by the Department of Justice. Thus, to the extent that plaintiffs advance their argument as a result of Leon County, they are forced to retreat back in the face of § 5’s preclearance requirements. Because, as discussed infra, this Court cannot promulgate as its own the plaintiffs’ plan, without first preclearing that plan, the Court does not have to decide here whether it could defer to that plan if preclearance were not an obstacle. If the legislature fails again to reapportion the Cobb County Commission, the Court will convene a trial next summer to determine a final plan. In that event, there will be ample time to have the Court’s plan precleared by DOJ. At that juncture, the question whether the Court can properly defer to the plan proposed by the Commission and/or the local delegation will be ripe. Even if the Court cannot defer — that is, adopt in toto — a proposed, but unenacted, plan by the commission, this fact does not mean that the Court cannot consider the plan. Indeed, in the face of arguments that she could not defer to the Commission plan because it was not a legislative enactment and had not been precleared, Judge Evans explained the similarity of her plan to the Commission’s proposal by noting that even though the proposed plan may not have been entitled to deference as a legislatively enacted plan, it was still entitled to some consideration as an expression of county policy. See Bodker at 12; see also White v. Weiser, 412 U.S. at 796-797, 93 S.Ct. 2348. Likewise, in this case, the plaintiffs’ proposed plan represents the only current expression of governmental policy as to the appropriate redistricting of Cobb County. Accordingly, the Court concludes that it may properly consider the plaintiffs’ proposed plan, even though the Court cannot defer to that plan because of § 5 considerations. See infra. 2. The 1992 Plan and the Minimal Change Construct Intervenors argue that the 1992 plan represents the only expression of legislative policy regarding the districting of Cobb County and that, in fashioning a remedial plan, the Court must take that 1992 plan and make only minimal changes to it to arrive at its own plan. In support of its “minimal change” argument, interve-nors cite Upham v. Seamon, 456 U.S. 37, 102 S.Ct. 1518, 71 L.Ed.2d 725 (1982). In Upham, the Supreme Court stated: Whenever a district court is faced with entering an interim reapportionment order that will allow elections to go forward it is faced with the problem of “reconciling the requirements of the Constitution with the goals of state political policy.” An appropriate reconciliation of these two goals can only be reached if the district court’s modifications of a state plan are limited to those necessary to cure any constitutional or statutory defect. Upham v. Seamon, 456 U.S. 37, 43, 102 S.Ct. 1518, 71 L.Ed.2d 725 (1982). Inter-venors’ argument on this point is not merely an objection to the plaintiffs’ proposed plan, but is also an argument regarding the limits of the Court’s discretion to fashion its own plan. In sum, the inter-venors argue that the 1992 plan is the only plan before the Court that reflects legitimate state policies, because it is the last plan approved by the Georgia Legislature and precleared by the Attorney General. Further, intervenors have repeatedly argued that, pursuant to Upham v. Seamon, this Court can make only minimal changes to the existing 1992 plan to even out the population deviations. Because of the severe time constraints facing it, the Court has, in fact, created a plan that largely comports with interve-nors’ notion of minimal change; indeed, the Court’s plan arguably achieves minimal change better than does that of the intervenors. Yet, because the Court may again see this case in a posture in which the Court is not as pressed for time, the Court wishes to make clear that its current interim plan should not be construed as an indication that the Court necessarily feels bound to make only minimal changes to the 1992 plan. In fact, intervenors are much more enthusiastic about the applicability of Upham to this case, than is the Court. To the contrary, Upham is distinguishable on its facts from this case. In Upham, the district court was faced with a reapportionment plan for the Texas congressional delegation that had been recently approved by the Texas legislature prior to being submitted to the Attorney General for preclearance under Section 5 of the VRA. Upham, 456 U.S. at 38, 102 S.Ct. 1518. Although the Attorney General approved the boundaries drawn for 25 of the 27 congressional districts, he objected to the boundaries drawn for two districts and thus refused to preclear the plan. Id. Litigation ensued in federal court and the district court was forced to devise its own plan. Not content to remedy the specific objections to the two districts before it, the court decided to redraw the lines in other districts that had already been approved by the Attorney General. Id. Upon appeal, the Supreme Court held that, in the absence of an objection from the Attorney General and in the absence of a specific constitutional or statutory violation, the district court was required to defer to the legislative judgments inherent in the plan proposed by the legislature. Id. at 41, 102 S.Ct. 1518. Thus, the Court held, the district court erred in substituting its judgment for that of the Texas legislature. Id. at 41-42, 102 S.Ct. 1518. In reiterating its earlier holding in White v. Weiser, 412 U.S. 783, 93 S.Ct. 2348, 37 L.Ed.2d 335 (1973), the Court stated: We held there that the District Court erred when, in choosing between two possible court-ordered plans, it failed to choose that plan which most closely approximated the state-proposed plan. The only limits on judicial deference to state apportionment policy, we held, were the substantive constitutional and statutory standards to which such state plans are subject. Id. at 42, 102 S.Ct. 1518 (citing White v. Weiser, 412 U.S. 783, 797, 93 S.Ct. 2348, 37 L.Ed.2d 335 (1973)). A close reading of the holding in Upham reveals why it does not necessarily control on the facts of this case. Specifically, the Upham court held that “in the absence of any finding of a constitutional or statutory violation with respeet to those districts, a court must defer to the legislative judgments the plans reflect, even under circumstances in which a court order is required to effect an interim legislative apportionment.” Id., 456 U.S. at 40-41, 102 S.Ct. 1518 (emphasis added). The 1992 Cobb plan, however, is fraught with unconstitutionality under the one-person, one-vote principle; hence, it can hardly be deemed a constitutional plan to which the Court’s remedial plan must necessarily adhere, making only minimal changes thereto. Moreover, the Court cannot look in isolation at only one district, District Four, in devising its plan. Instead, as the Commission consists of four districts, the Court must look at all four districts in remedying the constitutional violation. Finally, the state-proposed plan to which the Supreme Court in Upham said that the district court should have deferred was a recent plan that was responsive to the new census data, not a plan that had become outdated through the passage of a twelve year period of time. Thus, in the instant case, the Court is faced, on the one hand, with an existing plan that was approved over a decade ago by the legislature, but is clearly unconstitutional now, and, on the other hand, with a current plan proposed by the affected county commission/local delegation that remedies the constitutional violations in the existing plan and that was passed by one house of the legislature, but was never put to a vote in the other. Accordingly, the Court concludes that the 1992 Cobb plan is not really analogous to the plan under review in Upham, in which the district court was presented with a current plan that had been recently approved by the state legislature, but had been objected to by the Attorney General solely with respect to two districts. It was only in this narrow factual context that the Supreme Court found the district court to have unduly meddled when it tinkered with those parts of the recent plan that were clearly constitutional and that had also been precleared by the Department of Justice. In short, while the phrase “minimum change” is uttered as a mantra by whichever party in redistricting cases seeks a districting map that most closely resembles the outdated map that can no longer be used, this Court is not convinced that Upham requires it to adhere rigidly to an old, unconstitutional map whenever it devises a remedial plan. Indeed, such an inflexible rule could sometimes cause a court to act as an abettor of those, who by political maneuvering, may have thwarted the legislature from passing proposed local legislation that it clearly would have adopted, had the matter simply been allowed to come to a vote. Being used in such a manner will generally not sit well with most courts. Nevertheless, although not required to do so, as a result of the time constraints in this case, the Court’s plan does likely constitute only minimal change from the 1992 Plan. D. Compliance with Section 5 of the Voting Rights Act Both the plaintiffs and the intervenors agree that any plan devised by this Court must comply with the Voting Rights Act (VRA). Only two sections of the Act — § 5 and § 2 — are potentially implicated by a remedial plan and the parties agree that only § 5 is actually in play in this dispute. Under Section 5 of the Voting Rights Act, certain states, including Georgia, are prohibited from enforcing “any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting” unless they have either (1) obtained a declaratory judgment from the District Court for the District of Columbia that the change is not “for the purpose or with the effect of denying or abridging the right to vote on account of race or color,” or (2) submitted the proposed change to the Attorney General for “preclearance” and the change has been so precleared. 42 U.S.C. §§ 1973b-1973c. Thus, § 5 has a substantive component that has been interpreted to prevent change in voting plans that create retrogression in minority voting strength and a procedural component that requires covered jurisdictions to “preclear” any change in their districting plans with either the DOJ or the D.C. District Court. Intervenors argue that the plaintiffs’ plan violates § 5’s substantive prohibition of retrogression of minority voting strength. Further, intervenors argue that even leaving aside any potential retrogression in plaintiffs’ plan, this Court cannot adopt that plan as its own without first preclearing the plan with the Attorney General. The Court turns first to the preclearance requirement, before addressing the substantive “non-retrogression” requirement of the section. 1. Preclearance Requirement This preclearance requirement applies to changes in apportionment plans, and was intended to monitor those regions of the United States (primarily the Southern states) that, up to the time of the passage of the Act in 1965, had maintained voting “tests or devices” that resulted in the infringement of the right to vote of minority voters. See 42 U.S.C. § 1973b; see also Georgia v. United States, 411 U.S. 526, 531-535, 93 S.Ct. 1702, 36 L.Ed.2d 472 (1973); Johnson v. Miller, 929 F.Supp. 1529, 1532 n. 4 (S.D.Ga.1996). As noted, all new legislative apportionment plans must be “precleared” by either the Department of Justice or the District Court for the District of Columbia. McDaniel v. Sanchez, 452 U.S. 130, 137, 101 S.Ct. 2224, 68 L.Ed.2d 724 (1981). Section 5’s pre-clearance mechanism does not apply to courts in creating remedial apportionment plans. Connor v. Johnson, 402 U.S. 690, 691, 91 S.Ct. 1760, 29 L.Ed.2d 268 (1971). This exception to preclearance procedures does not arise, however, if a district court acts as a mere rubber stamp to an uncleared legislative plan. Specifically, in McDaniel, the district court in a covered jurisdiction concluded that the current apportionment plan for the county commission in question violated the one-person, one-vote rule. Accordingly, the court directed the commission to submit a proposed reapportionment plan to the court, after which the district court approved the plan, overruling the argument of the plaintiffs that this new legislative plan required preclearance under the VRA. McDaniel, 452 U.S. at 133-36,101 S.Ct. 2224. The Supreme Court reversed, noting that the legislative history of the statute indicates that a § 5 review of a new plan is excused only when, “because of exigent circumstances, the court actually fashions the plan itself, instead of relying on a plan presented by a litigant.” Id. at 148-49, 101 S.Ct. 2224. Moreover, the Court expressed a concern that any other interpretation might encourage a covered jurisdiction that wished to avoid the preclearance procedure to refuse to redistrict after the census, thereby triggering litigation that would allow it to have its plan implemented by the reviewing court, instead of the Department of Justice or D.C. District Court. Id. at 151, 101 S.Ct. 2224. Accordingly, the Court ruled that when a court acts as merely the conduit for a plan submitted by a legislative body of a covered jurisdiction, that plan must proceed through normal preclearance procedures under § 5 before becoming effective. Id. at 153,101 S.Ct. 2224. That a court must not act as a rubber stamp does not mean, however, that the court cannot consider the proposed legislative plan, just as it considers any other plans submitted to it. Moreover, this Court concludes that, as long as the district court makes an independent, de novo decision as to the appropriate remedial plan, such that the plan is the court’s own, its plan does not have to be precleared, even if turns out to greatly resemble the proposed legislative plan. See Bodker, supra at 11-12 (court notes that although its plan greatly resembles the proposed legislative plan, the plan is nonetheless the court’s own); Johnson v. Miller, 922 F.Supp. 1556, 1569 (S.D.Ga. 1995) (noting that fact that court’s remedial plan may have resembled proposed legislative plan did not mean that plan was not the court’s own; the court necessarily had to rely on legislative plans to determine how the latter had maintained district cores and communities of interest). Indeed, assuming that most legislative bodies, in evening out population disparities, make sensible decisions about where lines should be redrawn, it would be surprising if there were not some substantial overlap between a court’s remedial plan and the proposed plan on many occasions. Surely, a court is not required to engage in arbitrary and bizarre redrawing of lines just to show its independence. In short, a court may consider a proposed plan, but the ultimate remedial plan must be the Court’s own; otherwise, the preclearance procedures must be followed. As noted infra, the plans fashioned by the Court are the Court’s own plans and hence do not have to be precleared. 2. Prohibition Against Retrogression In fashioning a remedial plan, “a court should follow the appropriate Section 5 standards, including the body of administrative and judicial precedents developed in Section 5 cases.” McDaniel, 452 U.S. at 149, 101 S.Ct. 2224; see also Abrams, 521 U.S. at 95, 117 S.Ct. 1925 (the same). Of greatest significance in this case is the implication of the “non-retrogression” rule of § 5. As noted supra, § 5 has been interpreted to prevent retrogression in new voting plans. The intervenors, who are black voters residing in District Four, contend that the plaintiffs’ proposed plan results in the retrogression of minority voting strength in that district, thereby violating § 5 of the VRA. The purpose of Section 5 of the VRA “has always been to insure that no voting-procedure changes would be made that would lead to a retrogression in the position of racial minorities with respect to their effective exercise of the electoral franchise.” Beer v. United States, 425 U.S. 130, 141, 96 S.Ct. 1357, 47 L.Ed.2d 629 (1976); see also Upham v. Seaman, 456 U.S. 37, 39, 102 S.Ct. 1518, 71 L.Ed.2d 725 (1982). Unlike legislative plans proposed by states, apportionment plans that are prepared and adopted by a federal court in order to remedy a constitutional violation are not subject to the preclearance requirement of Section 5. McDaniel v. Sanchez, 452 U.S. 130, 138, 101 S.Ct. 2224, 68 L.Ed.2d 724 (1981); Connor v. Johnson, 402 U.S. 690, 691, 91 S.Ct. 1760, 29 L.Ed.2d 268 (1971) (per curiam). Nevertheless, in constructing and adopting a remedial plan, courts must take into consideration the “non-retrogression” rule of Section 5. Thus, the remedial plan should not significantly impair the voting rights of minorities in comparison to the existing plan. As noted, the intervenors argue that the proposed plan should not be adopted by the Court as to District Four, because it violates the “non-retrogression” rule of Beer by impairing the rights of black voters in District Four as compared to the existing plan. Beyond stating that the proposed plan violates the non-retrogression principle as to District Four, however, intervenors do not explain what the standards are for that principle. Neither do plaintiffs offer any helpful standards as to what the term means. Instead, with regard to the meaning of the term “retrogression,” both the intervenors and the plaintiffs have been able to repeat only the same broad abstract descriptions found in case law. Thus, the Court is given a circular explanation of retrogression: to wit, that retrogression under § 5 will not be deemed to occur if a proposed voting change has neither the purpose nor effect “of denying or abridging the right to vote on account of race or color.” 42 U.S.C.A. § 1973c. The Court has further been told that § 5 is intended to prevent “backsliding” by prohibiting implementation of a voting change that has been enacted for a retrogressive purpose or that has a retrogressive effect on minority voting strength. (Int’s Trial Mem. at 17), citing Reno v. Bossier Parish Sch. Bd., 528 U.S. 320, 335, 120 S.Ct. 866, 145 L.Ed.2d 845 (2000) and Beer v. United States, 425 U.S. at 141, 96 S.Ct. 1357. As a result, the Court is left only with an awareness that its plan must not retrogress, but is not very clear what that means. One thing that is clear, however, is that in order to analyze whether a proposed change in an apportionment plan violates the non-retrogression rule, the court must first identify an appropriate benchmark by which to gauge whether the newly proposed plan “retrogresses” from the previous plan. The parties disagree as to what that benchmark should be. Both agree that this Court should look to the 1992 Plan. The intervenors argue, however, that one looks to the black voting age population currently living in the district, as established by the most recent 2000 census, and as that district is presently constituted under the 1992 plan. Conversely, the plaintiffs contend that one looks to the number of voting age blacks living in the district at the time of the 1990 census, as broken down by the 1992 Plan. That is, plaintiffs argue that, in determining the retrogressive effects of a new plan, one does not consider additional population that may have entered the county in the last decade since promulgation of that plan. These differing approaches present a very different calculation for purposes of determining retrogression. Thus, if one looks at the BVAP for Commission District Four, which is the only district that the intervenors have placed at issue for purposes of a retrogression argument, the current Census data shows that the BVAP currently represents 31.07% of the district’s voting age population. Census data in existence in 1990, however, purportedly indicated that District Four had only 14.5% BVAP. The plaintiffs’ proposed plan, as set out in Table 3, infra at 57, would result in a District Four consisting of 24.1% BVAP. Clearly, that proposal does not retrogress from the 1990 figure of 14.5% BVAP, but instead increases the BVAP in the district. If one compares the proposed district to the 31.07% BVAP now present in the existing District Four, however, the plaintiffs’ proposal decreases the BVAP by about 7% (the difference between 31.07% and 24.1%). Whether or not it constitutes retrogression, plaintiffs’ proposed plan clearly decreases BVAP in District Four from where it is in the currently configured plan. Because the two benchmarks produce very different results, the Court must determine which benchmark is applicable. The plaintiffs have not cited any authority in support of their argument that the appropriate benchmark should be the BVAP in a given district as reflected in the 1990 Census data, versus the BVAP as reflected in the 2000 Census data. Although no court seems to have addressed this issue, straight on, the sense of these cases is that one would look to the present (2000 Census data) population in a given district to det