Full opinion text
PER CURIAM. Under the state Constitution, every ten years, the Kansas legislature must draw new districts for the United States Congress, the Kansas Senate, the Kansas House of Representatives and the Kansas Board of Education. Since the 2010 decennial census, the legislature has failed to approve new maps. While legislators publicly demurred that they had done the best they could, the impasse resulted from a bitter ideological feud—largely over new Senate districts. The feud primarily pitted GOP moderates against their more conservative GOP colleagues. Failing consensus, the process degenerated into blatant efforts to gerrymander various districts for ideological political advantage and to serve the political ambitions of various legislators. Consequently, for reasons explained below, this Court is left to the task of approving or creating plans to redistrict the United States Congress, the state Senate, the state House of Representatives and the state Board of Education. The Secretary of State advised us of the June 11, 2012 filing deadline that candidates for Congress, the state legislature and the Kansas Board of Education face, and we have endeavored to complete this order as expeditiously as possible to permit that deadline to remain in place. FACTUAL BACKGROUND Anticipating the legislative default which eventually occurred, plaintiff brought suit against the Kansas Secretary of State, seeking to enjoin him from conducting the 2012 elections under existing state law. Specifically, she alleged that the 2002 districts are now unconstitutional because of population shifts documented by the 2010 census, which caused existing districts to become unequal in population and thus violate the constitutional requirement of one person, one vote. At the hearing and in their pleadings, all parties have stipulated that the existing districts are unconstitutional. The Court agrees. Plaintiffs suit is authorized under 42 U.S.C. § 1973j(f), and a three-judge panel has been appointed to hear it under 28 U.S.C..§ 2284(a). All parties now call upon the federal court to do in very short order what the legislature failed to accomplish in two regular sessions. Exercising its jurisdiction under 28 U.S.C. §§ 1331 and 1343(a)(4), the Court therefore assumes the “unwelcome obligation” of performing in the legislature’s stead. Connor v. Finch, 431 U.S. 407, 415, 97 S.Ct. 1828, 52 L.Ed.2d 465 (1977). Historical Facts The Kansas legislature consists of 40 single-member senatorial districts and 125 single-member state representative districts. Congress has issued a certificate of entitlement to the Kansas Secretary of State stating that Kansas is entitled to four congressional districts in the 2012 elections. These numbers remain unchanged from ten years ago. Every ten years, subject to the governor’s approval, the Kansas legislature must redistrict the congressional, state Senate and state House districts. The Kansas Supreme Court must evaluate new legislative districts after their enactment. Kan. Const. art. 10, § 1(b). Redistricting is primarily a matter for the legislature to consider and determine, but if a legislature fails to redistrict in a timely fashion after having a chance to do so, federal courts are called upon for relief. See White v. Weiser, 412 U.S. 783, 794-95, 93 S.Ct. 2348, 37 L.Ed.2d 335 (1973). As judges, we do not tread unreservedly into this political thicket. Colegrove v. Green, 328 U.S. 549, 556, 66 S.Ct. 1198, 90 L.Ed. 1432 (1946). The Court acts only because it must—as it did in 1982. According to the 2010 census, Kansas has a population of 2,853,118. Dividing the 2012 population into four congressional districts, the average congressional district should contain 713,280 persons. For purposes of state rather than federal districting, the Kansas Constitution requires that the Secretary of State adjust the total state population by excluding nonresident military personnel stationed within Kansas and nonresident students attending colleges and universities within Kansas. Conversely, it includes military personnel within the state who are residents of Kansas and students attending colleges and universities within the state who are residents of the state. The included individuals are counted in the district of their permanent residence. Kan. Const. art. 10, § 1(a). The total adjusted population of Kansas is 2,839,445. Thus the ideal population for each Kansas Senate district is 70,986 and the ideal population for each Kansas state House district is 22,716. Article 6 of the Kansas Constitution requires the Kansas legislature to establish districts for the Kansas State Board of Education, with each district consisting of four contiguous Kansas Senate districts. Kan. Const. art. 6, § 3. Based on the total adjusted population, the ideal population for each Kansas State Board of Education district is 283,944. As noted, the Kansas legislature had advance notice that it had to draw new districts for the 2012 elections, and it began the redistricting process in 2011. Each body appointed a redistricting committee and the chairpersons of each committee (Senator Tim Owens and Representative Mike O’Neal) eo-ehaired a joint Special Committee on Redistricting. The Special Committee conducted six days of public hearings in 2011. In January of 2012, the House and Senate adopted written “Guidelines and Criteria for 2012 Kansas Congressional and Legislative Redistricting” (“the Guidelines”). The House Redistricting Committee conducted hearings from June 1, 2011, through May 17, 2012, and the Senate Reapportionment Committee conducted hearings from January 18 through May 11, 2012. For congressional redistricting, the Guidelines state that: 1. The basis for congressional redistricting is the 2010 U.S. Decennial Census as published by the U.S. Department of Commerce, Bureau of the Census. The “building blocks” to be used for drawing district boundaries shall be Kansas counties and voting districts (VTDs) as their population is reported in the 2010 U.S. Decennial Census. 2. Districts are to be as nearly equal to 713,280 population as practicable. 3. Redistricting plans will have neither the purpose nor the effect of diluting minority voting strength. 4. Districts should attempt to recognize “community of interests” when that can be done in compliance with the requirement of guidelines No. 2. a. Social, cultural, racial, ethnic and economic interests common to the population of the area, which are probable subjects of legislation (generally termed “communities of interest”), should be considered. b. If possible, preserving the core of the existing districts should be undertaken when considering the “community of interests” in establishing districts. c. Whole counties should be in the same congressional district to the extent possible while achieving population equality among districts. County lines are meaningful in Kansas and Kansas counties historically have been significant political units. Many officials are elected on a countywide basis, and political parties have been organized in county units. Election of the Kansas members of Congress is a political process requiring political organizations which in Kansas are developed in county units. To a considerable degree most counties in Kansas are economic, social and cultural units, or parts of a larger socioeconomic unit. These interests common to the population of the area, generally termed “community of interests” should be considered during the creation of congressional districts. 5. Districts should be as compact as possible and contiguous, subject to the requirement of guideline No. 2. Ex. 9 at p. 2. The guidelines state the following for legislative redistricting: 1. The basis for legislative redistricting is the 2010 U.S. Decennial Census as recalculated by the Kansas Secretary of State pursuant to Article 10, Section 1 of the Constitution of the State of Kansas and K. S.A. 11-301 et seq. 2. Districts should be numerically as equal in population as practical within the limitations of Census geography and application of guidelines set out below. Deviations should not exceed plus or minus 5 percent of the ideal population of 22,716 for each House district and 70,986 for each Senate district, except in unusual circumstances.... 3. Redistricting plans will have neither the purpose nor the effect of diluting minority voting strength. 4. Subject to the requirements of guideline No. 2: a. The “building blocks” to be used for drawing district boundaries shall be voting districts (VTDs) as described on official 2010 Redistricting U.S. Census maps. b. Districts should be as compact as possible and contiguous. c. The integrity and priority of existing political subdivisions should be preserved to the extent possible. d. There should be recognition of similarities of interest. Social, cultural, racial, ethnic and economic interests common to the population of the area, which are probable subjects of legislation (generally termed “communities of interest”), should be considered. While some communities of interest lend themselves more readily than others to being embodied in legislative districts, the Committee will attempt to accommodate interests articulated by residents. e. Contests between incumbent members of the Legislature or the State Board of Education will be avoided whenever possible. f. Districts should be easily identifiable and understandable by voters. Ex. 9 at p. 1. Throughout the redistricting process, the Kansas legislature considered a number of maps, including eleven congressional maps, nine state Senate maps, three state Board of Education maps and two state House maps. At this point, with one exception, the history of the failed plans is largely academic. It is important to note, however, that on February 9, 2012, the House passed a new House map, “Cottonwood 1,” by a vote of 109-14. In a separate piece of legislation on May 1, 2012, the Senate approved Cottonwood 1 by a vote of 21-19. The following day, the House denied a motion to concur because 72 House members objected to the Senate redistricting map which the Senate attached to Cottonwood 1. Consequently, although the House and Senate each approved Cottonwood 1, they did so in separate pieces of legislation which never became law. With regard to the Senate maps, on May 18, 2012, the Senate approved “Buffalo SO-Revised” to redistrict the Senate and “Buffalo 30-Revised-SBOE” to redistrict the Board of Education. The House took no action on either map and neither was enacted into law. On May 20, 2012, the legislature gave up on redistricting and adjourned. On May 25, Senator Jeff King asked the Kansas Legislative Research Department (“KLRD”) to run its usual set of reports for “Essex A,” a redistricting plan that originated in the governor’s office—apparently as a precursor to this lawsuit. Neither chamber had considered Essex A in the legislative process. Indeed, some parties expressed confusion, disbelief, suspicion and anger at its sudden appearance as an exhibit to plaintiffs complaint and an exhibit in this suit, after plaintiff had apparently disavowed its use. We note that the Supreme Court has discounted the significance of a map submitted to a court in a manner that prevents meaningful examination of the map at trial. Abrams v. Johnson, 521 U.S. 74, 84, 117 S.Ct. 1925, 138 L.Ed.2d 285 (1997) (discounting the significance of a map submitted by the Justice Department after the close of evidence, because the late submission prevented cross examination of the map’s developer). Procedural Background Plaintiff filed her complaint on May 3, 2012. On May 16, 2012, the Kansas Secretary of State filed his answer. The Secretary of State also filed an unopposed Motion To Expedite Pursuant To 28 U.S.C. § 1657 And Issue A Scheduling Order (Doc. # 9), in which he pointed out a series of electoral deadlines, including a filing deadline of June 11, 2012 for candidates for Congress, the state legislature and the Kansas Board of Education. See K.S.A. § 25-205. The district court sustained defendant’s motion, set a pretrial conference for May 21, 2012, and requested appointment of a three-judge panel. (Doc. # 10) entered May 17, 2012. The Court allowed numerous parties to intervene. Most of the intervenors have unabashedly political reasons for intervening, and they seek to advance their respective political agendas by arguing for and against various maps that the legislature considered, along with “Essex A.” The Court received briefs from amicus curiae Samuel D. Brownback in his official capacity as Governor of the State of Kansas (Doc. # 235) and the Board of County Commissioners of Johnson County, Kansas (Doc. # 238). On May 29 and 30, 2012, the Court heard testimony, received evidence and entertained arguments from the original parties and intervenors. Thanks to impressive focus, industry and organization by dozens of lawyers, the Court was in a position to receive a huge volume of evidence on short notice, in a highly compressed and efficient format. Most of the relevant evidence is undisputed and was received in written form. In addition, the Court heard testimony from many individuals who wished to be personally heard. Having thoughtfully considered the testimony and the evidence, the Court finds that none of the proposed plans are both constitutional and fully comport with the non-constitutional criteria that apply to redistricting plans approved or crafted in a judicial context. As a result, the Court has regretfully resorted to the painstaking task of drawing its own plans. Confronted with the unusual complexity and difficulty of computer-generated redistricting plans, and faced with the daunting prospect of redrawing four new plans on essentially ten days’ notice, the Court secured Corey Carnahan, Principal Analyst for the KLRD, to serve as a technical advisor pursuant to Reilly v. United States, 863 F.2d 149 (1st Cir.1988). GOVERNING LAW This case causes us to examine Supreme Court precedent with respect to both congressional and state legislative redistricting principles. Legal Principles Concerning the Proposed Congressional Plans Article I, Section 2 of the U.S. Constitution provides that “as nearly as practicable one man’s vote in a congressional election is to be worth as much as another’s.” Wesberry v. Sanders, 376 U.S. 1, 7-8, 84 S.Ct. 526, 11 L.Ed.2d 481 (1964). For this reason, redistricting plans for congressional districts are subject to stringent equal population requirements. In Karcher v. Daggett, the Supreme Court noted that Article 1, § 2 of the United States Constitution permits only limited population variances which are unavoidable despite a good faith effort to achieve absolute equality, or for which justification is shown. 462 U.S. 725, 730, 103 S.Ct. 2653, 77 L.Ed.2d 133 (1983) (quoting Kirkpatrick v. Preisler, 394 U.S. 526, 531, 89 S.Ct. 1225, 22 L.Ed.2d 519 (1969)). Without justification, no de minimis population variations which are avoidable will satisfy Article 1, § 2. Karcher, 462 U.S. at 734, 103 S.Ct. 2653. Karcher sets forth a two-pronged inquiry for assessing any variation in districts from a standard of equality: (1) does a plan represent a good faith effort to draw districts of equal population; and (2) is any “significant” variance between districts necessary to achieve some legitimate state goal. Id. at 731, 103 S.Ct. 2653; Anne Arundel Cnty. Republican Cent. Comm. v. State Admin. Bd. of Election Laws, 781 F.Supp. 394, 396 (D.Md. 1991). Absolute population equality is the paramount objective of a congressional plan, and this Court must achieve that objective “with little more than de minim-is variation.” Abrams v. Johnson, 521 U.S. 74, 98, 117 S.Ct. 1925, 138 L.Ed.2d 285 (1997) (quoting Karcher, 462 U.S. at 732, 103 S.Ct. 2653 and Chapman v. Meier, 420 U.S. 1, 26-27, 95 S.Ct. 751, 42 L.Ed.2d 766 (1975)). The Supreme Court has not enunciated a fixed number that satisfies the de minimis standard for deviation from absolute equality. In writing about a state’s efforts to arrive at constitutionally acceptable congressional districts, however, the Supreme Court has explained its reason as follows: We reject [the] argument that there is a fixed numerical or percentage population variance small enough to be considered de minimis and to satisfy without question the as nearly as practicable standard. The whole thrust of the as nearly as practicable approach is inconsistent with adoption of fixed numerical standards which excuse population variances without regard to the circumstances of each particular case. The extent to which equality may practicably be achieved may differ from State to State and from district to district. Kirkpatrick, 394 U.S. at 531, 89 S.Ct. 1225. Although more than 40 years old, this pronouncement holds true today. While this Court can attempt to justify variances in population between districts, the Supreme Court has been loath to allow even de minimis variations in congressional redistricting plans. See Karcher, 462 U.S. at 731-32, 103 S.Ct. 2653. Karcher teaches that no level of population inequality among congressional districts is too small to be of concern if potential challengers to a plan can demonstrate that the inequality could have been avoided. Lower courts have applied Karcher to determine if congressional district plans achieve constitutional population equality. E.g., Larios v. Cox, 300 F.Supp.2d 1320 (N.D.Ga.2004) (congressional plan with total deviation of 72 people constitutional because of legitimate state interest in avoiding precinct splits along boundaries not easily recognized, even through deviation could be smaller), aff'd, 542 U.S. 947, 124 S.Ct. 2806, 159 L.Ed.2d 831 (2004) (Mem.); Graham v. Thorn- burgh, 207 F.Supp.2d 1280 (D.Kan.2002) (congressional plan with maximum deviation of 33 people constitutional despite existence of plan with lower deviations because adopted plan balanced legitimate state goals and had smallest population shift from 1992 plan); DeWitt v. Wilson, 856 F.Supp. 1409 (E.D.Cal.1994) (plan with overall range of 0.49 percent justified by legitimate state objectives). While variance may be based on legitimate state policies, we cannot assume that any such variance would pass constitutional muster. Accordingly, our goal is to achieve absolute population equality and, if circumstances necessitate departure from that goal, to articulate clearly the relationship between the variance and the state policy furthered. Chapman, 420 U.S. at 24, 95 S.Ct. 751. Legal Principles Concerning Proposed State Plans The rigorous standard of population equality demanded of congressional districts under U.S. Const. Art. 1, § 2, is not equally applicable to redistricting of state legislative districts or the State Board of Education. Karcher, 462 U.S. at 732-33, 103 S.Ct. 2653. Such districts are governed by the Equal Protection Clause of the Fourteenth Amendment, which requires that we construct maps under the one person, one vote principle. Reynolds v. Sims, 377 U.S. 533, 568, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964); Bd. of Estimate of New York v. Morris, 489 U.S. 688, 692-93, 109 S.Ct. 1433, 103 L.Ed.2d 717 (1989). It requires an honest and good faith effort to construct districts as nearly of equal population as is practicable. Reynolds, 377 U.S. at 577, 84 S.Ct. 1362. The Supreme Court has recognized that it is practically impossible to arrange legislative districts so that each one has an identical number of residents, citizens or voters, and has held that mathematical exactness or precision is not a workable constitutional requirement. Id. Thus, court-ordered reapportionment of a state legislature need not attain the mathematical preciseness required for congressional redistricting. Chapman, 420 U.S. at 27 n. 19, 95 S.Ct. 751. While the Constitution requires that legislative districts be as nearly of equal population as is “practicable,” Connor v. Finch, 431 U.S. 407, 409-10, 97 S.Ct. 1828, 52 L.Ed.2d 465 (1977), the Supreme Court has not assigned a numerical standard to “as equal as practicable” when applied to court-crafted maps. In the context of legislatively-enacted maps, the Supreme Court has held that population deviations under 10 percent are constitutionally valid on their face, id., 431 U.S. at 419, 97 S.Ct. 1828, with a high-water mark of 16.4 percent for a Virginia house map. Mahan v. Howell, 410 U.S. 315, 333, 93 S.Ct. 979, 35 L.Ed.2d 320 (1973). Where a federal court is called upon to draw a state legislative redistricting plan, as we are, the 10 percent standard does not apply. Court-enacted maps are held to a higher standard, but the Supreme Court has not explained how much higher. Connor, 431 U.S. at 414, 97 S.Ct. 1828. The decision not to adopt a fixed standard grows from the Supreme Court’s view, expressed above, that the “[w]hole thrust of the ‘as nearly as practicable’ approach to the one man-one vote rule is inconsistent with adoption of fixed numerical standards which excuse population variances without regard to circumstances of each particular case.” Kirkpatrick, 394 U.S. at 530-31, 89 S.Ct. 1225. This view leads the Supreme Court to require justification for even extremely small deviations in population for state legislative districts, even though “court-ordered reapportionment of a state legislature [need not] attain the mathematical preciseness required for congressional redistricting.” Chapman, 420 U.S. at 26 n. 19, 95 S.Ct. 751. As the Court explained in Chapman, “[w]ith a court plan, any deviation from approximate population equality must be supported by enunciation of historically significant state policy or unique features [of the state].” Id. at 26, 95 S.Ct. 751. Other courts have interpreted this language to indicate that low level deviations are constitutional. At the high end, the Fifth Circuit has held that a total deviation of 4.11 percent qualifies as “sufficiently de minimis,” Wyche v. Madison Parish Police Jury, 635 F.2d 1151, 1159 (5th Cir.1981). The Eighth Circuit approved a plan with a 1.13 percent total deviation, but did not consider whether that marked the high end of the acceptable range. Fletcher v. Golder, 959 F.2d 106, 109 (8th Cir.1992). District courts, which have seen many more of these eases, have approved maps ranging up to two percent total deviation. Baldus v. Members of the Wis. Gov’t Accountability Bd., 849 F.Supp.2d 840 (E.D.Wis.2012) (holding that total deviation of 0.76 percent was de minimis); Sten ger v. Kellett, No. 4:11CV2230, 2012 WL 601017 (E.D.Mo. Feb. 23, 2012) (approving court-ordered reapportionment plan with total deviation of less than one-tenth of one percent); Larios v. Cox., 314 F.Supp.2d 1357 (N.D.Ga.2004) (holding 2 percent total deviation de minimis); Smith v. Cobb County Bd. of Elections & Registrations, 314 F.Supp.2d 1274 (N.D.Ga.2002) (adopting plan with total deviation of 1.51 percent); Colleton County Council v. McConnell, 201 F.Supp.2d 618 (D.S.C.2002) (adopting map with 2 percent total deviation after rejecting maps at 4.86 percent and 3.13 percent as too high); Farnum v. Burns, 561 F.Supp. 83 (D.R.I.1983) (holding total deviation of 1.58 percent de minimis); Wis. State AFL-CIO v. Elections Bd., 543 F.Supp. 630 (E.D.Wis.1982) (noting that “a constitutionally acceptable plan ... should, if possible, be kept below 2%” and adopting a map with 1.74 percent total deviation). Lacking more precise guidance from the Supreme Court, this Court can only deduce that 5.95 percent is probably too high in terms of population deviation, and that lower is better. We agree with Burton v. Sheheen, 793 F.Supp. 1329, 1344-45 (D.S.C.1992), judgment vacated on other grounds by Statewide Reapportionment Advisory Comm. v. Theodore, 508 U.S. 968, 113 S.Ct. 2954, 125 L.Ed.2d 656 (1993), and we repeat that opinion’s conclusion: We conclude, without quantifying the de minimis standard, that the standard lies somewhere between the 10 percent presumption of Brown [v. Thomson, 462 U.S. 835, 103 S.Ct. 2690, 77 L.Ed.2d 214 (1983) ] and the mathematical preciseness required for congressional redistricting under Wesberry v. Sanders, 376 U.S. 1, 84 S.Ct. 526, 11 L.Ed.2d 481 (1964), and in the opinion of this court, it lies closer to [the equal population standard for congressional districts.] 793 F.Supp. at 1345. Thus, we seek to make the population deviations as low as possible, and we will explain the factors necessitating our most significant deviations from that standard. Further, to the extent we vary from the population ideals in order to accommodate historically significant state policies, we note those deviations. Chapman, 420 U.S. at 26, 95 S.Ct. 751. The only uneontroverted set of significant state policies articulated by the legislature is contained in the 2012 Guidelines adopted by the legislature. We might be reluctant to rely on a set of guidelines approved only by the two committees as a statement of Kansas redistricting policies, but these same guidelines were approved nearly verbatim in 2002, and we relied on these guidelines as statements of Kansas redistricting policy when assessing the 2002 Kansas redistricting plan. Graham v. Thornburgh, 207 F.Supp.2d 1280, 1292-93 (D.Kan.2002). Further, we relied on substantially similar policies when creating a congressional plan in 1982. O’Sullivan v. Brier, 540 F.Supp. 1200, 1203 (D.Kan.1982) (listing these factors and adding factor of preserving municipal boundaries). These guidelines, then, are the legislative policies underlying the existing plan, and we will rely on them as a statement of Kansas redistricting policies. Legal Principles Concerning the Proposed Remedy The legislative failure to devise a remedy for the currently unconstitutional plans leaves this Court with three options for each set of districts in question: we may (1) adopt a proposed plan in its entirety, (2) adopt a proposed plan and modify it or (3) devise a new plan. See O’Sullivan, 540 F.Supp. at 1202-03. Regardless which option our constitutional analysis prompts us to choose, we owe no deference to any proposed plan, as none has successfully navigated the legislative process to the point of enactment. See Connor, 431 U.S. at 415, 97 S.Ct. 1828; O’Sullivan, 540 F.Supp. at 1202. Rather, we must carefully follow Supreme Court guidance for federal courts who find themselves in the “unusual position” of drafting reapportionment plans. See Connor, 431 U.S. at 414, 97 S.Ct. 1828. The Supreme Court has repeatedly emphasized that “legislative reapportionment is primarily a matter for legislative consideration and determination,” for a state legislature is the institution that is by far the best situated to identify and then reconcile traditional state policies within the constitutionally mandated framework of substantial population equality. The federal courts by contrast possess no distinctive mandate to compromise sometimes conflicting state apportionment policies in the people’s name. In the wake of a legislature’s failure constitutionally to reconcile these conflicting state and federal goals, however, a federal court is left with the unwelcome obligation of performing in the legislature’s stead, while lacking the political authoritativeness that the legislature can bring to the task. Id. at 414-15, 97 S.Ct. 1828 (quoting Reynolds, 377 U.S. at 586, 84 S.Ct. 1362). All parties concede that the Kansas congressional, legislative and Board of Education districts as currently drawn are constitutionally infirm because a shift in population documented by the 2010 decennial census reveals that the existing districts are substantially unequal in population. The Court need not further address the constitutionality of the current districts, but will focus solely on the remedy. As we have noted in the past, when the legislature fails to pass a new redistricting plan, and the old plan is no longer constitutional, “our powers are broad.” O’Sullivan, 540 F.Supp. at 1202-03 (internal citations omitted). But, although “[t]he remedial powers of an equity court must be adequate to the task, ... they are not unlimited.” Upham v. Seamon, 456 U.S. 37, 43, 102 S.Ct. 1518, 71 L.Ed.2d 725 (1982) (citing Whitcomb v. Chavis, 403 U.S. 124, 161, 91 S.Ct. 1858, 29 L.Ed.2d 363 (1971)). We recognize that we are limited “to remedies required by the nature and scope of the violation.” White v. Weiser, 412 U.S. 783, 793, 93 S.Ct. 2348, 37 L.Ed.2d 335 (1973). CONGRESSIONAL REDISTRICTING As noted, according to the 2010 census, the population of the State of Kansas is 2,853,118, which equates to four ideal congressional districts with 713,279.5 persons in each. As also noted, the legislature failed to enact a congressional redistricting plan. The Senate passed Sunflower 9C by a vote of 23 to 17, but that plan failed in the House of Representatives by a vote of 48 to 76. 34th Great State failed in the Senate by a vote of 17 to 22. The Senate Committee on Reapportionment passed Sunflower 13, but the entire Senate did not vote on it. The House passed a bill containing Bob Dole 1 for congressional redistricting by a vote of 81 to 43, but that plan failed to pass the Senate by a vote of 14 to 24. The House also passed Kansas Six by a vote of 64 to 51, but the Senate did not vote on it. In this action, three of the plans proposed to the legislature—Sunflower 9C, Sunflower 13 and Kansas Six—are supported and proposed for court approval. Each plan (1) has essentially no deviation from the ideal population distribution among the four districts; (2) maintains all of Wyandotte County and Johnson County in the Third District, along with a small section of either Miami County or Leavenworth County; (3) keeps Sedgwick County and surrounding counties in the Fourth District; (4) places much of the eastern part of the State (other than Johnson and Wyandotte Counties) in the Second District; (5) maintains a large First District—the so-called “Big First”—that includes the western half of the State; and (6) splits only three counties between districts. Plaintiff advocates Kansas Six, which places Riley County (containing the city of Manhattan) and several counties south of Riley County in the Second District, and fashions a First District that spans the northernmost state line from Colorado to Missouri, and then dips south to include Atchison County, Jefferson County, Leavenworth County and the northeast portion of Douglas County. Plaintiff attaches significance to the fact that Kansas Six would keep the University of Kansas (“KU”), Kansas State University (“K-State”), Emporia State University, Washburn University and the City of Topeka together in the Second District. Intervenor O’Neal, Speaker of the Kansas House of Representatives, does not advocate a particular map, but he testified that during the redistricting process, the Senate and House committees learned that Riley County and K-State preferred to remain in the Second District, in part because of the National Bio- and Agro-Defense Facility (“NBAF”) that connects Riley County to eastern counties along the I-70 Corridor and Fort Leavenworth. Speaker O’Neal also testified that the House rejected Sunflower 9C because it does not maintain Riley County in the Second District. Finally, Speaker O’Neal testified that having the First District adjoin the Third District (as in Kansas Six) would better accommodate anticipated population shifts in future redistricting. Intervenors Davis and Roy prefer Sunflower 13 or, alternatively, Sunflower 9C. Under Sunflower 13, the Second District would keep Riley County and most of Leavenworth County together, and include most of Wabaunsee County. These intervenors advocate keeping KU and K-State in one district, and also keeping Fort Riley and Fort Leavenworth in one district. They presented evidence that the Sunflower plans relocate less population from existing districts and divide fewer voting districts than Kansas Six. They also argue that Kansas Six unnecessarily splits the City of Lawrence, inappropriately adds Leavenworth and part of Douglas County to the First District in western Kansas, and removes the Flint Hills counties to the Second District from their previous home in the First District. Finally, in their post-hearing brief (leave for which was granted only with respect to issues of constitutionality), intervenors Davis and Roy argue that the Third District should include with Johnson and Wyandotte Counties a portion of Leavenworth County (instead of a portion of Miami County) because the portion of Leavenworth County adjacent to new development in Wyandotte County has more in common with the metropolitan area than does northern Miami County. Intervenors Senator Owens et al. prefer Sunflower 9C, but do not object to Sunflower 13. These intervenors argue that Sunflower 9C is free of the gerrymandering in Kansas Six, particularly with respect to the inclusion of Leavenworth in the First District. Senator Owens testified that during the redistricting process, his Senate Committee heard that the nine counties in southeast Kansas wish to be in the same district. He noted that Sunflower 9C would accomplish that goal by moving Montgomery County into the Second District from the Fourth District. Intervenor Keller, a retired Army Lieutenant General, does not advocate a particular plan, but he testified that Riley and Leavenworth Counties should be in the same district, as they have been for many years, because of the ties between the two army posts in those counties. Intervenor Beer also seeks to keep Riley County in the Second District because of various initiatives that connect the City of Manhattan and Riley County to Eastern Kansas. Mr. Beer also presented evidence that both Riley County and the City of Manhattan passed resolutions preferring placement in the Second District. Finally, intervenors Denning and Yoder (incumbent Third District Congressman) ask the Court to fill out the Third District with a portion of Miami County to the south, and not with a portion of Leavenworth County to the north. In support of their position, these intervenors argue that Miami County has been in the Third District as recently as 2002, while Leavenworth County has never been in the district; that the City of Spring Hill in northern Miami County straddles the Johnson-Miami County boundary, and should be contained in a single district; and that the City of Louisburg in northern Miami County is closely related to Johnson County, to which it is connected by a newly-improved US-69 Highway. Among the various plans that place part of Miami County in the Third District, these intervenors recommend either Capitol 1 or Black and White, which do not split the City of Hillsdale in Miami County. The Court concludes that the best plan for the creation of new congressional districts is Sunflower 9C, modified to include a portion of Miami County instead of Leavenworth County in the Third District, specifically the portion of Miami County included in the Third District in Black and White. In support of that plan, the Court reasons as follows. The Court agrees with all of the recommended plans that the entirety of Johnson and Wyandotte Counties should be included in the Third District. Those counties have formed the core of the Third District for decades, and as the Court concluded in O’Sullivan, they should be placed in the same district because they “represent the Kansas portion of greater Kansas City, a major socio-economic unit,” and the counties’ economic, political and cultural ties are significantly greater than their differences. O’Sullivan, 540 F.Supp. at 1204. The Court also agrees with O’Sullivan that Wyandotte County should be placed in a single district so that the voting power of its large minority population may not be diluted. See id. The combined population of Johnson County and Wyandotte County is 701,684, or 11,595.5 less than the ideal for a congressional district in Kansas. The recommended plans, and other plans proposed to the legislature, make up that amount by including a portion of either Miami County or Leavenworth County in the Third District. The Court concludes that a portion of northern Miami County is more appropriately included in the Third District. Although intervenors Davis and Roy have belatedly argued that a portion of Leavenworth County should be included instead of Miami County, the Court also received evidence that Leavenworth County residents wish for their entire county to be placed in the same district. Moreover, intervenors Denning and Yoder introduced persuasive evidence that any additional population for the Third District should come from Miami County. The Court agrees that the history of the district and the benefit of avoiding splitting the City of Spring Hill favor inclusion of northern Miami County. The Court also agrees that placing the City of Louisburg in a district with Johnson County is appropriate. Finally, the Court agrees that the Miami County division found in Black and White appropriately avoids splitting the City of Hillsdale. The Court further concludes that the Fourth District should continue to comprise Sedgwick County' and surrounding counties. The only evidence offered specifically relevant to the composition of this district was that Wichita and south-central Kansas make up a community of interest. The Court believes that Sunflower 9C and Kansas Six are superior to Sunflower 18 because they would allow the nine counties in the southeastern corner of the State to remain together in the Second District. Moreover, Sunflower 9C creates a district which is more centered in south-central Kansas, and more compact, by adding counties to the west. Kansas Six, on the other hand, adds a county and thus creates a geographical protuberance to the north of the existing Fourth District. The greatest dispute with respect to congressional redistricting involves the composition of the First and Second Districts. As an initial matter, members of the legislative committees testified that the counties in southeast Kansas wish to reside in the same district. The Court agrees that the southeast Kansas community of interest is real and should be respected. Sunflower 9C and Kansas Six satisfy that goal by moving Montgomery County into the Second District. The Court next concludes that Leavenworth County should not be moved to the First District, as in Kansas Six, but should instead abide in its historical place in the Second District, as proposed by Sunflower 9C. Leavenworth County residents wish to remain in the Second District, and no party has suggested any way in which Leavenworth County shares more in common with the western Kansas core of the First District than it does with the Second District counties. With its proximity to the Kansas City metropolitan area, and its unique communities of interest—including a military base and federal and state penitentiaries—Leavenworth County is more appropriately placed in the Second District, which is centered in eastern Kansas. The Court also notes the Guidelines’ preference not to split populous cities or counties. Thus, the Court concludes that Douglas County and the City of Lawrence should not be split between the First and Second Districts, as in Kansas Six, but they are more appropriately placed entirely within the Second District. The Court now addresses whether Riley County and the City of Manhattan should be placed in the Second District, as requested by intervenors Keller and Beer and as proposed by Kansas Six and Sunflower 13. The Court agrees that Riley County has some ties to eastern Kansas, as argued by those intervenors. Messrs. Keller and Beer also note that Riley County has long resided in the Second District. The Court appreciates the general desirability of maintaining counties in their past districts, but circumstances that affect the placement of this county have changed over the last few decades. For example, including Riley County in the Second District made more sense before 1992, when the State of Kansas was allotted five congressional seats. Continued population shifts away from western Kansas and toward northeastern Kansas have made it increasingly difficult to keep Riley County in an eastern Kansas district, as evidenced by the fact that the layout of the existing Second District contains a significant protuberance for the sole purpose of reaching Riley and Pottawatomie Counties. The plans that try to keep Riley County in the Second District thus cause adverse effects elsewhere in the State. Kansas Six, for example, accomplishes its goal of keeping Riley County in the Second District by creating an extremely contrived First District that quite inappropriately circles around the Second District to grab Leavenworth County, two other counties on the eastern border of the State and the northeastern portion of Douglas County (thereby dividing the City of Lawrence). Sunflower 13 succeeds in keeping Riley County in the Second District only by creating a protuberant Second District and a First District that extends a narrow finger nearly to Missouri in the north while doing the same in the center of the State. Sunflower 13 also eats into the Second District’s column of southeastern Kansas counties, which share a community of interest, and would divide Riley County from nearby Junction City in Geary County- The Court concludes that the superior plan places Riley County, together with its neighboring Pottawatomie and Geary Counties, in the First District, as Sunflower 9C does. Placement of Riley County in a primarily agricultural district is not inappropriate, particularly given K-State’s position as the State’s preeminent agricultural university. Counsel for intervenor Beer conceded at the Court hearing that Riley County and Manhattan do share a community of interest with the counties in the First District. Certainly Riley County’s ties to western Kansas are far stronger than those of Leavenworth County or Douglas County, which Kansas Six proposes to move to the First District. In short, Riley County’s ties to western Kansas, and the difficulty in creating a satisfactory map that keeps Riley County in the Second District, outweigh the county’s ties to eastern Kansas. Moving Riley County to the First District, as accomplished in Sunflower 9C, creates very compact districts without splitting major cities or counties, a result which the Court favors. Finally, the Court also notes that although Riley County has previously been in the Second District, Sunflower 9C places only 8.8 percent of Kansas residents in a new district, while Kansas Six would relocate 14.5 percent of residents. Sunflower 9C also splits fewer voting districts than does Kansas Six. Thus, Sunflower 9C better satisfies the state’s policy, as embodied in the Guidelines, of attempting to respect existing political boundaries. The Court’s plan results in two districts with populations of 713,278 and two with populations of 713,281. Such a distribution provides equality among Kansas voters as nearly as practicable, and therefore satisfies Article I, Section 2 of the U.S. Constitution. The Court’s plan maintains the voting strength of the minority population in Wyandotte County. The parties have not identified other possible issues concerning race or ethnicity. The Court’s plan most effectively furthers state goals of creating compact and contiguous districts, preserving existing districts, maintaining county and municipal boundaries and grouping together communities of interest. See O’Sullivan, 540 F.Supp. at 1203. Accordingly, the Court orders that the State of Kansas adopt the congressional redistricting plan which is attached hereto as Appendix B. REDISTRICTING OF THE KANSAS SENATE AND THE KANSAS STATE BOARD OF EDUCATION The parties advocate four potential maps for the Senate. Several parties propose Buffalo 30-Revised, which passed the Senate as HB 2087 by a vote of 21 to 7; the House took no action on it. Buffalo 30 Revised has a total population deviation of 6.14 percent (relative mean deviation of 1.97 percent) and a Roeck score of 0.44 (standard deviation of 0.09). The other principal maps proposed by the parties were the For the People series of maps (For the People 12, For the People 13b and Essex A, which was derived as a low-population deviation map from the For the People series) and Wheat State 5. For the People 13b was introduced as part of SB 102 and passed the house by a vote of 67 to 50, but the Senate took no action on it. For the People 12 and Wheat State 5 failed to pass either house of the Kansas legislature. Essex A was prepared for the present litigation and was not before the state legislature or publicly vetted in any way. Defendant Secretary of State advocates the adoption of For the People 12 as a base map, and asks the Court to work from it to bring the total population deviation below two percent. All of the parties advocating State Board of Education maps do so based on the particular Senate map or maps that they favor. For the People 12 has a total population deviation of 5.22 percent (relative mean deviation of 1.59 percent) and a Roeck score of 0.44 (standard deviation of 0.09). For the People 13b has a total population deviation of 5.22 percent (relative mean deviation of 1.59 percent) and a Roeck score of 0.44 (standard deviation of 0.09). Essex A has a total population deviation of 1.98 percent (relative mean deviation of 0.66 percent) and a Roeck score of 0.45 (standard deviation of 0.09). Wheat State 5 has a total population deviation of 7.37 percent (relative mean deviation of 2.08 percent); its Roeck score is not available on the Secretary of State’s website. Beyond the question of map selection, several of the parties advocate specific positions they would like reflected in the new Senate map. Intervenors Roy and Davis argue that the panel should collapse an existing Senate district and add a new district in Johnson County to accommodate growth there, but caution that the Johnson County districts should not include any surrounding rural areas. Intervenors Senator Owens, Henderson, Shaner and Wimmer argue that if the panel draws its own map, it should collapse a district in south-central Kansas to give Johnson County a new Senate district. Intervenors Berry and Nichols argue that we should prepare a court-drawn map based upon the 2002 Senate map, that we should not collapse a district in south-central Kansas, and that Butler, Cowley and Sumner counties should not be grouped with more rural counties. Intervenors Senator King, Abrams and Merrick argue that the panel should not collapse districts in south-central or southeast Kansas; that Sumner and Cowley counties should be unified in a district; that Butler County should not be split; and that if a district is added in Johnson County, it should be in the southern portion of the county. Intervenor Taylor argues that the panel should not split Olathe among multiple districts but instead should respect Olathe’s municipal boundaries. If it is necessary to augment Olathe’s population to obtain a more even population distribution, Intervenor Taylor argues that the panel should include citizens outside of Olathe city limits who are still served by Olathe school districts. Intervenor Bradford argues that Leavenworth County should have its own Senate district. Intervenors Landwehr, Smith and Mason argue that the panel should not disturb the alleged Hispanic majority in the 36th Senate District. Intervenors Person, Pilcher-Cook and Snell argue that the panel should not divide the City of Shawnee into two or more districts, but should instead keep it as intact as possible in a single district. Finally, in an amicus brief the Johnson County Commissioners argue that Johnson County is entitled to eight senate districts; that the panel should not extend Johnson County’s Senate districts outside the boundaries of Johnson County (except to include Lake Quivira or Spring Hill); that the panel should not include portions of Johnson County with other counties in a district; and that the panel should not remove any portion of Johnson County from any existing district. Ideally, we would begin our effort to redraw the districts with the 2002 map and adjust that map as necessary to achieve constitutional compliance. Where, however, the degree of changes in a state’s population requires significant changes to the state’s legislative districts, and particularly where, as here, legislative districts may need to be collapsed or relocated to areas of new growth, it may be that “no semblance of the existing plan’s district lines can be used.” Perry v. Perez, — U.S.-, 132 S.Ct. 934, 941, 181 L.Ed.2d 900 (2012). We conclude that the shifts in Kansas’s population since 2000 make the 2002 maps an impractical starting point for the construction of new legislative maps. Our effort to choose a base map for modification is further frustrated by the higher standards applied to legislative maps drawn by district courts, as compared to maps drawn by the legislature itself. Connor v. Finch, 431 U.S. 407, 414, 97 S.Ct. 1828, 52 L.Ed.2d 465 (1977) (“[A] court will be held to stricter standards in accomplishing its task than will a state legislature.”). In this case, because the standards for court-drawn maps are higher, the high population deviations of the maps considered by the legislature and proposed in this litigation preclude our selection of any of them. Moreover, the maps proposed by the parties appear to be motivated in part by political considerations that do not merit consideration by the Court. Cox v. Larios, 542 U.S. 947, 949, 124 S.Ct. 2806, 159 L.Ed.2d 831 (2004) (Mem.) (Stevens, J., concurring) (“[T]he drafters’ desire to give an electoral advantage to certain regions of the State and to certain incumbents (but not incumbents as such) did not justify the conceded deviations from the principle of one person, one vote.”), aff'g Larios v. Cox, 300 F.Supp.2d 1320, 1348-9 (N.D.Ga.2004). The alleged political motivations attributed to each map by those opposing it was made more than evident to the Court during our two days of evidentiary hearings in this matter. Thus, rather than adopt a plan proposed by the parties or begin from the 2002 maps, we have drawn new legislative maps, motivated by “the most elemental requirement of the Equal Protection Clause in this area[,] that legislative districts be as nearly of equal population as is practicable.” Connor, 431 U.S. at 409-10, 97 S.Ct. 1828 (internal quotation marks omitted). This requirement is the “preeminent, if not the sole, criterion” for evaluating the constitutionality of redistricting plans. Chapman v. Meier, 420 U.S. 1, 23, 95 S.Ct. 751, 42 L.Ed.2d 766 (1975). In undertaking the construction of new legislative maps, we have followed the Supreme Court’s instruction that, “[w]hen faced with the necessity of drawing district lines by judicial order, a court, as general rule, should be guided by legislative policies underlying the existing plan.” Abrams v. Johnson, 521 U.S. 74, 79, 117 S.Ct. 1925, 138 L.Ed.2d 285 (1997). The Guidelines and Criteria for 2012 Kansas Congressional and Legislative Redistricting are discussed in detail in the Introduction, supra. In light of this guidance, we have developed new legislative maps that distribute population as evenly as practicable between districts, while also considering to a much lesser degree the state’s legislative policies guiding redistricting. In considering these guidelines, we note that the Supreme Court has enunciated several precautions. First, the Court has stated that “we do not find legally acceptable the argument that variances are justified if they necessarily result from a State’s attempt to avoid fragmenting political subdivisions by drawing congressional district lines along existing county, municipal, or other political subdivision boundaries.” Kirkpatrick, 394 U.S. at 533-534, 89 S.Ct. 1225. See also Abrams, 521 U.S. at 99, 117 S.Ct. 1925; Connor, 431 U.S. at 419-20, 97 S.Ct. 1828. Second, while preservation of incumbents is a permitted policy, White, 412 U.S. at 796, 93 S.Ct. 2348 (holding that minimizing contests between incumbents is not inherently “invidious”) (citing Burns v. Richardson, 384 U.S. 73, 89 n. 16, 86 S.Ct. 1286, 16 L.Ed.2d 376 (1966)), the Court in Abrams, 521 U.S. at 84, 117 S.Ct. 1925, implicitly approved the district court’s decision to subordinate protection of incumbents to other state policy factors, “because [incumbent protection] was inherently more political.” We will follow the Abrams Court’s lead in subordinating the protection of incumbents to the other legislative goals. Finally, we recognize that race should not be the predominant redistrieting factor to the exclusion of other factors, Shaw v. Reno, 509 U.S. 630, 657-58, 113 S.Ct. 2816, 125 L.Ed.2d 511 (1993), so we balance the need to avoid dilution of minority voting strength with the other redistricting principles. See Bush v. Vera 517 U.S. 952, 958-59, 116 S.Ct. 1941, 135 L.Ed.2d 248 (1996). In keeping with the Supreme Court’s guidance, we have confined ourselves to drawing maps that comply with the Constitution and the Voting Rights Act, without displacing legitimate state policy judgments with the court’s own preferences. Perry, 132 S.Ct. at 941. The Senate map and detailed description are presented in Appendix C. The new Kansas Senate map has a total population deviation of 2.03 percent, with a relative mean deviation of 0.52 percent. This map is lower in total population deviation than any map passed by either house of the state legislature, and in fact lower in total deviation than any map presented to the state legislature. Among the maps in evidence, only Essex A has a lower total population deviation, and then by only 0.05 percent, roughly 36 people. The map we have adopted has a lower relative mean deviation, absolute mean deviation and standard deviation than Essex A. These statistics indicate that although the extreme ends of the population distribution may be slightly further apart, on average the districts in the map we have adopted are closer to a perfectly even population distribution. In light of the Supreme Court’s view that “court-ordered reapportionment of a state legislature [need not] attain the mathematical preciseness required for congressional redistricting,” the population variation in the map we have adopted is de minimis and thus need not be justified by additional explanation. Chapman, 420 U.S. at 26-27 n. 19, 95 S.Ct. 751. Nevertheless, we offer some additional information on the two districts with the largest deviations from ideal. The district with the greatest deviation from perfect population equality, District 4, reflects our attempt to preserve the district’s historical core, the district’s community of interest and the district’s unique African American racial makeup. After reviewing the makeup of the adjoining precincts, we concluded that adding additional population to that district threatened the values just identified. We chose instead to preserve that district with a slightly lower population in order to accommodate the state’s policies. Similarly, District 38 largely preserves a historical majority-minority district with a significant, predominantly Hispanic, minority base; this district’s slightly lower population allows for the preservation of the core of the old district and the district’s community of interest, while avoiding dilution of minority voting strength. We elected to leave the population of these two districts with slight deviations from the ideal because we could not achieve lower population deviations in these districts while also accommodating these recognized state policies and complying with federal law. In order to accommodate the county’s population growth, we created a new Senate district in Johnson County. Because the Kansas Constitution requires exactly 40 Senate districts, we concluded the recognized shift in our state’s population from rural to urban areas called for a collapse of an existing district. Because old District 21, located in north-central to northeast Kansas, was among the 2002 districts with the most significant population loss, Kansas Legislative Research Department, 2010 Adjusted Population Data (By Kansas Senate District) 7 (July 29, 2011), available at http://redistricting.ks.gOv/_ Census/PDF/ks_adj_pop.pdf, and because the Senator from District 21 has determined not to seek reelection, we collapsed that district. We hasten to add that this does not mean that the citizens in the former District 21 are left without representation-—-it means instead that new district will encompass different and greater territory than before and will carry a different number. By collapsing this district, we could create a new district, the new District 21, in Johnson County. Creation of the new district required that we adjust boundary lines throughout the Kansas City metropolitan area, and in doing so we sought to respect Kansas redistricting policy while also considering the arguments and evidence provided by interveners to this action. Specifically, we adjusted the districts to place the core of Olathe into one district, and the core of the city of Shawnee in another. We recognize that this map removes some incumbents from their districts and also may place more than one incumbent in a district. As noted, we have subordinated protection of incumbents to other state policy factors and, of course, to the constitutional requirement of one person, one vote. When focused primarily on forming districts that comply with constitutional requirements while also respecting other Kansas redistricting policies, any efforts to protect incumbents would require our choosing among incumbents, an inherently political exercise that we are neither able nor inclined undertake. We have developed new State Board of Education districts, described in Appendix E; these districts are nearly equal in population and reflect the decisions we made in developing the new Senate map. The new State Board of Education map has a total population deviation of 0.90 percent, with a relative mean deviation of 0.16 percent. This variation is de minimis. REDISTRICTING OF THE KANSAS HOUSE OF REPRESENTATIVES The parties, including plaintiff Essex, generally advocate the adoption of Cottonwood 1, a map that passed both the Kansas House (as HB 2606, by a vote of 109 to 14) and Kansas Senate (as HB 2371, by a vote of 21 to 19). The House failed to pass HB 2371 by a vote of 43 to 72, and the Senate failed to take action on HB 2606. Thus, although the same map passed both houses, neither house passed the other house’s bill and the map was never presented to the governor for his signature. Cottonwood 1 has a total population deviation of 9.86 percent (relative mean deviation of 2.8 percent). Cottonwood 1 has a mean Roeck score of 0.44 (standard deviation of 0.11). The Secretary of State argues that the court should take Cottonwood 1 as a starting point and then adjust the map to lower the total population deviation below two percent. In the alternative, plaintiff supports the adoption of Cottonwood II, passed by the House as SB 102, by a vote of 67 to 50. The Senate took no action on SB 102. Cottonwood II was reintroduced as part of SB 176, which passed the House by a vote of 81 to 43 but failed in the Senate by a vote of 12 to 14. Cottonwood II also has a total population deviation of 9.86 percent (relative mean deviation of 2.84 percent). Cottonwood II has a mean Roeck score of 0.44 (standard deviation of 0.11). Cottonwood 1 and II differ only in a few small respects: only districts 2, 4, 13, 93 and 101 differ in population between the two maps. According to Speaker O’Neal’s affidavit, Cottonwood II differs from Cottonwood 1 only