Alabama Legislative Black Caucus v. Alabama (231 F. Supp. 3d 1026, 2017)

MEMORANDUM OPINION AND ORDER

WILLIAM PRYOR, Circuit Judge:

The Alabama Legislature faced a difficult task in 2012. The Fourteenth Amendment requires state legislative districts of roughly equal population and prohibits racial gerrymandering. But the Voting Rights Act required Alabama to avoid retrogressing the ability of black voters to elect candidates of their choice. In other words, the legislature had to draw districts of roughly equal population that were conscious enough of race to comply with the Voting Rights Act, but not so conscious of race that they violated the Fourteenth Amendment. In the process, the legislature had to resolve conflicts between traditional districting criteria and secure enough votes to pass both houses. And to further complicate matters, most of the existing majority-black districts were underpopulated by at least five percent.

After the legislature enacted a plan, the Alabama Legislative Black Caucus and the Alabama Democratic Conference sued Alabama for violating the Fourteenth Amendment and the Voting Rights Act. We granted judgment for Alabama after a four-day bench trial. The Supreme Court vacated that judgment and remanded to allow the plaintiffs to reargue their claims of racial gerrymandering and present new evidence.

The plaintiffs now challenge all thirty-five majority-black districts and House District 85 as racial gerrymanders. We accepted new evidence, ordered briefing, and held oral argument. At our request, the plaintiffs agreed to draw alternative plans that complied with federal and state law and to submit briefing on the plans. Alabama deposed the plaintiffs’ experts and submitted its own briefing. We imposed no page limits on any of the briefing.

We have readopted our earlier decisions resolving all claims that the Supreme Court did not address, (Doc. 242), and we now decide the claims of racial gerrymandering. To succeed on a claim of racial gerrymandering, the plaintiffs must prove that “race [was] the ‘dominant and controlling’ or ‘predominant’ consideration in deciding ‘to place a significant number of voters within or without a particular district.’ ” Ala. Legislative Black Caucus v. Alabama, — U.S. -, 135 S.Ct. 1257, 1264, 191 L.Ed.2d 314 (2015) (quoting Miller v. Johnson, 515 U.S. 900, 913, 916, 115 S.Ct. 2475, 132 L.Ed.2d 762 (1995)). Race predominated over traditional districting criteria if it “was the criterion that, in the State’s view, could not be compromised.” Shaw v. Hunt, 517 U.S. 899, 907, 116 S.Ct. 1894, 135 L.Ed.2d 207 (1996). If the plaintiffs prove that race predominated, then the defendants must prove that they had a “strong basis in evidence,” Ala. Legislative Black Caucus, 135 S.Ct. at 1274, that the use of race was “narrowly tailored to serve a compelling state interest,” Shaw, 517 U.S. at 907-08, 116 S.Ct. 1894. A strong basis in evidence consists of “good reasons to believe such use is required, even if a court does not find that the actions were necessary for statutory compliance.” Ala. Legislative Black Caucus, 135 S.Ct. at 1274.

The plaintiffs argue that race predominated when the drafters kept the black population percentage in a district the same as it was before redistricting, but more is necessary under Supreme Court caselaw. It is possible to hit a supposed target solely by considering traditional dis-tricting criteria, as the plaintiffs concede when their alternative plans match the previous black population percentage in a district. The plaintiffs instead must provide evidence of how the drafters subordinated traditional districting criteria to race. We consider all of the evidence offered by the parties on remand, and we have no mechanical formula or system of weights for considering this evidence.

We find that race did not predominate in 22 of the 36 districts, and with respect to those districts, our inquiry ends there. We also find that race predominated in 14 of the 36 districts, and we must next decide whether those districts survive strict scrutiny.

We conclude that Alabama has satisfied strict scrutiny in two of the districts where race predominated. Alabama asserts an interest in complying with the Voting Rights Act, and it relies primarily on statements by two incumbent members of the Black Caucus at public meetings of the redistricting committee. This evidence is sufficient in those members’ districts. As we explain, the Supreme Court does not require that the legislature conduct studies. It instead requires only that the legislature had a strong basis in evidence for its use of race. The statement of Senator Hank Sanders in particular is detailed and based on his experience as an influential longtime incumbent. This kind of testimony constitutes a “strong basis in evidence.” And despite the plaintiffs’ insistence to the contrary, the record does not establish that the drafters had an incorrect understanding of section 5 in these two districts.

We GRANT judgment for the plaintiffs with respect to Senate District' 20, Senate District 26, Senate District 28, House District 32, House District 53, House District 54, House District 70, House District 71, House District 77, House District 82, House District 85, and House District 99, and we ENJOIN the use of these districts in future elections. With respect to the other 24 districts, we GRANT judgment for the defendants.

TABLE OF CONTENTS

I. BACKGROUND ...1034

A. The Parties ... 1034

B. Relevant Factual Background ...1035

C. Decision of the Supreme Court ...1041

D. Subsequent Proceedings ... 1043

II. FINDINGS OF FACT AND CONCLUSIONS OF LAW .. .1044

A. Standing ... 1045

B. Majority-Black Districts ... 1045

C. The Plaintiffs’ Court-Ordered Alternative Plans ... 1046

D. Racial Predominance Generally ...1049

a. The ±1% Deviation Does Not Prove that Race Predominated. ... 1049

b. Alabama Had a Statewide Policy of Racial Targets, but the Plaintiffs Still Must Prove that the Policy Caused Race to Predominate in Individual Districts ...1050

c. The Dissent Misstates the Test for Racial Predominance. ... 1056

d. The Plaintiffs Must Prove that the Precinct Splits Cannot Be Explained by Traditional Districting Criteria. ... 1058

E. Strict Scrutiny Generally .. .1061

F. District>-By-Distriet Analysis of the Challenged Plan ... 1064

a. Senate Districts 18, 19, and 20 (Birmingham) ...1065

b. Senate District 23 (West Black Belt) ...1082

c. Senate District 24 (West Black Belt) ...1111

d. Senate District 26 (Montgomery) ...1129

e. Senate District 28 (East Black Belt) .. .1140

f. Senate District 33 (Mobile) ... 1158

g. House Districts 19 and 53 (Madison County) .. .1165

h. House District 32 ... 1185

i. House Districts 52, 54, 55, 56, 57, 58, 59, and 60 (Jefferson County) ...1192

j. House Districts 67, 68, 69, 70, 71, and 72 (West Black Belt) ... 1221

k. House Districts 76, 77, and 78 (Montgomery) ... 1279

l. House Districts 82, 83, 84, and 85 (East Black Belt) ... 1297

m. House Districts 97, 98, 99, and 103 (Mobile County) ... 1320

CONCLUSION .. .1348

APPENDIX ...1349

I. BACKGROUND

We divide our discussion of the background in four parts. First, we identify the parties. Second, we explain the history of the redistricting process as it relates to the claims of racial gerrymandering. Third, we review the decision of the Supreme Court in Alabama Legislative Black Caucus v. Alabama, — U.S. -, 135 S.Ct. 1257, 191 L.Ed.2d 314 (2015). Fourth, we discuss the proceedings that occurred after the decision of the Supreme Court.

A. The Parties

In this opinion, we divide the parties in three groups. The first group is the Black Caucus plaintiffs: the Alabama Legislative Black Caucus, the Alabama Association of Black County Officials, Fred Armstead, George Bowman, Rhondel Rhone, Senator Bobby Singleton, Albert F. Turner, and Jiles Williams Jr. The second group is the Democratic Conference plaintiffs: the Alabama Democratic Conference, Lynn Pett-way, Stacey Stallworth, Rosa Toussaint, and Framon Weaver Sr. We refer to the third group as “Alabama” or “the defendants,” and they are Alabama, Governor Robert J. Bentley, Representative Randy Davis, Senator Gerald Dial, Representative Jim McClendon, and Secretary of State John H. Merrill.

B. Relevant Factual Background

This litigation has a deeply partisan backstory. After the 2000 Census, the Democrat-controlled legislature adopted redistricting plans that were expressly partisan. Montiel v. Davis, 215 F.Supp.2d 1279, 1283 (S.D. Ala. 2002) (“Plaintiffs have proffered no evidence to refute the abundant evidence ... that [the redistricting plans] were the product of the Democratic Legislators’ partisan political objective to design Senate and House plans that would preserve their respective Democratic majorities.”). The redistricting criteria in 2001 required that the population in a given district be within ± 5% of the ideal population of a district. Id. Within that range, the 2001 redistricting plans systematically underpopulated Democratic districts, including majority-black districts. Out of the 26 majority-black House districts, 21 were underpopulated, and 11 were underpopulated by greater than 4 percent. (Doc. BO-42 at 3-4). Six of the eight majority-black Senate districts were underpopulated, and four of those districts were underpopulated by greater than four percent. (Doc. 30-44 at 2).

The Democratic leaders boasted about their partisan strategy. They filed an ami-cus brief in the Supreme Court of the United States that described the districts as an example of a successful partisan gerrymander. See Brief for Leadership of the Alabama Senate and House of Representatives as Amici Curiae Supporting Ap-pellees, Vieth v. Jubelirer, 541 U.S. 267, 124 S.Ct. 1769, 158 L.Ed.2d 546 (2004) (No. 02-1580) (Def. Ex. 448). The brief explained that, during the redistricting process after the 2000 Census, “the Democratic leadership pursued a biracial strategy aimed at safeguarding its governing majorities in both houses of the Legislature.” Id. The brief pronounced that the partisan strategy had succeeded: “The 2002 general election returned Democratic candidates to 71% of the Senate seats and 60% of the House seats, with 52% of the statewide vote supporting Democrats in Senate races and 51% supporting Democrats in House races.” Id.

Unsurprisingly, Republicans were not enthused. They challenged the 2001 districts as racial gerrymanders in federal court, but Alabama successfully defended the population deviations as “the product of the Democratic Legislators’ partisan political objective to design Senate and House plans that would preserve their respective Democratic majorities.” Montiel, 215 F.Supp.2d at 1283. After the Republicans’ complaint of racial gerrymandering failed, they filed another complaint that challenged the population deviations as an unlawful partisan gerrymander, but that complaint failed because it was barred by res judicata, Gustafson v. Johns, 434 F.Supp.2d 1246, 1255, 1267 (S.D. Ala. 2006).

The 2010 Census revealed severe malap-portionment of population among the districts, especially in the majority-black House districts that the Democrat-controlled legislature had drawn in 2001. In the 2010 Census, all of the 26 House districts that were majority-black in 2001 were underpopulated. (Doc. 30-37). Twenty-four of those districts were underpopulated by more than 5 percent, the maximum deviation allowed under the 2001 plans, and nine were underpopulated by more than 20 percent. (Id.). All eight of the Senate districts that were majority-black in 2001 were underpopulated, seven of them by more than 5 percent and two of them by more than 20 percent. (Doc. 30-41). Many of these malapportioned districts were located in the Black Belt, a south-central region of the State named for its black soil. Many black Alabamans reside there due to the region’s history of agriculture and slavery. (Doc. 203 at 18). The following tables illustrate the severity of the underpopulation in the challenged districts:

Population Deviation in Challenged Senate Districts

(Doc. 30-41).

Population Deviation in Challenged House Districts

(Districts with a * were not majority-black in 2001).

(Doc. 30-37).

The 2001 partisan gerrymander failed to save the Democrats in 2010, when Republicans won supermajorities in both houses. Because the Alabama Constitution requires the Alabama Legislature to update its districts after each decennial census, see Ala. Const. Art. IX, §§ 199-200, the task of responding to the population ma-lapportionment in the districts fell to the newly elected Republican-controlled legislature. The Alabama Code provides for a Permanent Legislative Committee on Reapportionment to address any problems of malapportionment that arise after a new census. See Ala. Code §§ 29-2-50, 29-2-51. The Committee is charged with developing new reapportionment plans for the state. See id. § 29-2-50(2). Two Republicans, Senator Gerald Dial and Representative Jim McClendon, co-chaired the Committee, (Corr. Joint Stip. of Facts at 3), which eventually produced the legislative redistricting plans that the plaintiffs now challenge: Act No. 2012-602 (House) and Act No. 2012-603 (Senate).

The Republican-controlled legislature used the same criteria as previous legislatures, with one exception: they tightened the limit on population deviation to ±1%. Republicans in the legislature used the narrow deviation in part to avoid a judgment of liability under the Fourteenth Amendment as had occurred in Georgia in Larios v. Cox, 300 F.Supp.2d 1320 (N.D. Ga.), aff'd, 542 U.S. 947, 124 S.Ct. 2806, 159 L.Ed.2d 831 (2004). (Doc. 217 at 205-06). They also benefited politically from a tighter deviation, as it would undo the partisan gerrymander that the Democrats had previously enacted. But in all other respects, the Republicans used the same guidelines as the previous plan and attempted to avoid change when possible. (Doc. 215 at 29-30; Doc. 134-4 at 25-26).

Senator Dial and Representative McClendon worked with Randy Hinaman to draw the new districts for the legislature'. (Doc. 125-10 at 2). Hinaman is a political consultant with experience working in Alabama. (Doc. 217 at 115). He drew the congressional districts in Alabama after the 2010 Census, (id. at 116); worked with Democrat leaders after the 2000 Census to draw the congressional districts that were adopted by the legislature and pre-cleared by the United States Department of Justice, (id. at 115); and drew congressional districts that were adopted by a three-judge district court in 1992 and affirmed by the Supreme Court, see Wesch v. Hunt, 785 F.Supp. 1491, 1499 (S.D. Ala.), aff'd sub nom. Camp v. Wesch, 504 U.S. 902, 112 S.Ct. 1926, 118 L.Ed.2d 535 (1992); (Doc. 217 at 114-15).

Hinaman used a computer program called Maptitude to draw the plans. Mapti-tude allows the user to draw districts based on census data. (Doc. 134-4 at 15). It also allows the user to load additional data into the program to assist with the drawing of the districts. (Id.) Hinaman collected political data from the Republican National Committee for every election in Alabama between 2002 and 2010 and imported that data into Maptitude. (Id.). Hinaman also collected and imported information from the Reapportionment Office about the residences of incumbents. (Id. at 36). As he drew the districts, Hinaman had political data down to the precinct level and census data, including racial data, down to the census-block level. (Id. at 110-12).

The Committee gave Hinaman written guidelines for drawing the new district lines, (Corr. Joint Stip. of Facts at 3), which we attach as an appendix to this opinion. As already discussed, the Committee changed the allowable population deviation for the State Board of Education and the legislature from ± 5%, which had been used in the 2001 plans, to ± 1%. (Id. at 3; Doc. 30-4 at 2). The guidelines required the districts to be drawn in accordance with the Voting Rights Act, to be contiguous and reasonably compact, to be composed of as few counties as practicable, to avoid contests between incumbent members whenever possible, and to respect communities of interest. (Doc. 30-4 at 2-4). The guidelines defined a community of interest as “an area with recognized similarities of interest, including but not limited to racial, ethnic, geographic, governmental, regional, social, cultural, partisan, or historic interests; county, municipal, or voting precinct boundariés; and commonality of communications.” (Id. at 3-4). Finally, the guidelines acknowledged that not all of the redistricting goals could be accomplished and provided that, in cases of conflict, priority would be given to the requirements of one person, one vote and the Voting Rights Act. (Id. at 4).

Section 2 of the Act prohibits any “standard, practice, or procedure” that “results in a denial or .abridgement of the right of any citizen of the United States to vote on account of race or color.” 52 U.S.C. § 10301(a). The Supreme Court has applied section 2 to redistricting. See Thornburg v. Gingles, 478 U.S. 30, 106 S.Ct. 2752, 92 L.Ed.2d 25 (1986). To decide a claim under section 2, a court must first decide whether “(i) ‘[the racial minority] is sufficiently large and geographically compact to constitute a majority in a single-member district’; (ii) the group is ‘politically cohesive’; and (iii) ‘the white majority votes sufficiently as a bloc to enable it ... usually to defeat the minority’s preferred candidate.’ ” Reno v. Bossier Parish Sch. Bd., 520 U.S. 471, 479, 117 S.Ct. 1491, 137 L.Ed.2d 730 (1997) (alteration in original) (quoting Gingles, 478 U.S. at 50-51, 106 S.Ct. 2752). If these factors, known as the Gingles factors, are present in a district, a court then looks to whether “the totality of the circumstances supports a finding that the voting scheme is dilutive,” id. at 480, 117 S.Ct. 1491, which is to say that members of a protected minority group “have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice,” 52 U.S.C. § 10301(b).

Section 5 of the Act requires a jurisdiction covered under section 4 to obtain preclearance of a new voting “standard, practice, or procedure” by either the Attorney General of the United States or the United States District Court for the District of Columbia. M§ 10304. Such a change can have neither “the purpose nor ... the effect of denying or abridging the right to vote on account of race or color.” Id. The Supreme Court has applied section 5 to redistricting, see, e.g., Beer v. United States, 425 U.S. 130, 133, 96 S.Ct. 1357, 47 L.Ed.2d 629 (1976), and Alabama was a covered jurisdiction in 2012, see Shelby Cty. v. Holder, — U.S. -, 133 S.Ct. 2612, 2621, 186 L.Ed.2d 651 (2013). “Whether a voting procedure change should be precleared depends on whether the change ‘would lead to a retrogression in the position of racial minorities with respect to their effective exercise of the electoral franchise.’ ” Georgia v. Ashcroft, 539 U.S. 461, 466, 123 S.Ct. 2498, 156 L.Ed.2d 428 (2003) (quoting Beer, 425 U.S. at 141, 96 S.Ct. 1357). When the Attorney General evaluated whether the 2012 plan had a retrogressive effect, he compared the new districts with the old districts in the light of the updated census data. See Guidance Concerning Redistricting Under Section 5 of the Voting Rights Act, 76 Fed. Reg. 7471 (Feb. 9, 2011).

The Committee co-chairs, Senator Dial and Representative McClendon, both believed that avoiding retrogression was a priority. Representative McClendon testified that a district “is retrogressed if the minorities in that district, whether by race or language, are worse off after redistricting than they were before redistricting.” (Doc. 217 at 221). Senator Dial testified that, as each majority-black district was repopulated, “to keep from regressing the district and increasing that population, we had to increase it percentagewise on the same number of minority votes that we had.” (Doc. 215 at 36). When asked whether “that included bringing the African American populations of those districts up to approximately equal as best you could with what it had been in 2001,” Dial agreed. (Id. at 37). He was “committed not to regress” the “numbers that had been established under the last 'redistricting plan.” (Id. at 28-29). According to Dial, it was “fair” to say that he tried to “maintain” the black percentage in a given district relative to the 2010 Census population under the 2001 district lines. (Id. at 136). Dial was not concerned with creating higher percentages of black population within a district. (Id. at 56).

Hinaman was also concerned with retrogression. He “look[ed] at [the] 2010 census as applied to 2001 lines, [and] whatever that number was, [he] tried to be as close to that as possible.” (Doc. 217 at 145-46). If he “was significantly below that, [he] was concerned about that being retrogression that would be looked upon unfavorably by the Justice Department under Section 5.” (Id.). Hinaman explained that this inquiry was “somewhat of a subjective thing, but ... if you took a district that was somewhere in the 60 to 65 percent black majority district and you brought it down into the low 50s,” he thought “people would be concerned whether that population would then have the opportunity to elect a candidate of their choice.” (Doc. 134 — 4 at 101-02). When asked about a hypothetical district “in the upper 70s” that was redrawn as 70 percent black, he answered that he “would be less concerned.” (Id.). Hinaman also explained that no one instructed him that such a reduction was forbidden. (Id.).

At the beginning of the reapportionment process, the Committee conducted public hearings at 21 locations throughout Alabama. (Corr. Joint Stip. of Facts at 3). Senator Dial and Representative McClen-don attended all of the hearings. (Id. at 4). At the public hearing in Dallas County, Senator Hank Sanders — a black Democrat who represents majority-black Senate District 23 — asked Dial to use 62 percent as a minimum for the majority-black districts because often the population statistics for a district do not reflect the actual voters in that district. (Doc. 30-28 at 6). At the public hearing in Clarke County, Representative Thomas Jackson — a black Democrat who represents majority-black District 68 — explained that a majority-black district should be 62 percent to 65 percent black. (Doc. 30-23 at 8).

When Hinaman began working on the plans, he drew the majority-black districts first. (Doc. 217 at 146^47). Because every majority-black district was underpopulated, he needed to add precincts to each district until it satisfied the ±1% deviation. (Id. at 142-43). Hinaman explained how he drew those districts:

[I]n toto, whatever I added to a various district, I would look to see what change that made to the overall black percentage in that district. And so in some districts I could add in anything I wanted, and it didn’t matter because they were — you know, either they didn’t need that much population, or the changes I added didn’t matter.

(Id. at 143). Hinaman “tried to look at the additions en masse, not just a precinct.” (Id. at 144). He might “add a white precinct, a majority white precinct and a majority African American precinct; but if you look at the end number, if it did not retrogress the overall end number for that precinct, then they were added in.” (Id.) Hinaman would consider splitting precincts to increase black population percentage only when he was concerned that he had significantly reduced the black population percentage in a given district. (Id. at 144-46).

Hinaman also tried to avoid putting incumbents in conflict with one another, (id. at 119), to accommodate the wishes of incumbents about them districts, (id. at 139), to maintain each district along similar lines, (id. at 162), and to comply with the guidelines set forth by the Committee, (id. at 139). According to Hinaman, “It was also a goal to change each district to some extent the least amount possible.” (Doc. 134^4 at 25-26). Some of these goals had higher priority than others. For example, counties were split in some instances to comply with requests from incumbent legislators, (Doc. 217 at 135-36), or because they were split similarly in previous plans, (Doc. 134 — 4 at 34). Although maintaining each district along similar lines to the previous plan was “a goal,” it was “down on the list” from complying with the Constitution and “[separating incumbents.” (Doc. 217 at 162).

Significant portions of the plan were based on suggestions from incumbent legislators. Hinaman traveled to Alabama to meet in person with many of the Republican legislators. (IcL at 120-21). Although he did not meet with Democratic legislators before the plans were introduced in the legislature, he incorporated suggestions that Senator Dial and Representative McClendon received from Democratic legislators. (Doc. 217 at 121). Dial gave Hina-man a proposed map for the three majority-black Senate districts in Jefferson County that Senator Rodger Smitherman, a black Democrat from Jefferson County, had given him. (Doc. 134-4 at 43). Dial instructed Hinaman to incorporate those maps into the Senate plan to the extent possible because they represented the wishes of the three senators from those districts. (Id.) Hinaman drew the majority-black districts in Jefferson County to be substantially the same as the maps provided to him by Senator Dial. (Id.) McClen-don gave Hinaman proposed maps for Montgomery County from Representative Thad McClammy, a black Democrat who represented that county. (Id. at 44-45). McClendon told Hinaman to adopt as many of McClammy’s ideas as possible, and Hinaman followed that instruction. (Id. at 45-47).

There were also alternative plans proposed in the legislature, including the McClammy Plan for the House, (Common Ex. 45), the Sanders Plan for the Senate, (Common Ex. 47), the Reed-Buskey Plans for the House and Senate, (Common Exs. 42, 48), and the Knight Plan for the House, (Common Ex. 46). None of them complied with the ± 1% deviation, and at least some of the plans put numerous incumbents in conflict. For example, the Reed-Buskey Plan for the House put four Republicans and two Democrats in conflict, and the Knight Plan put 26 Republicans and six Democrats in conflict. (Def. Supp. Ex. 16). By contrast, the plans adopted by the legislature created only two incumbent conflicts. Two black incumbent Democrats, Representatives Juandalynn Givan and Demetrius Newton, lived in the new House District 60. But Hinaman had been told that Representative Newton planned to retire, (Doc. 134-4 at 132), and he has since died, (Doc. 203 at 52). Another black incumbent Democrat, Representative John Knight, and a white incumbent Democrat, Representative Joe Hubbard, were both placed in the new House District 77. (Def. Supp. Ex. 16).

Some of the alternative plans also drastically reduced the black population percentage in certain districts. Senator Dial testified that he rejected two alternative plans for the Senate because they did not keep certain majority-black districts at or above 62 percent, as Senator Sanders had requested. Dial explained that he rejected Sanders’s own Senate plan because “[i]t didn’t even meet the requirements [he] had said would keep them 62 percent at least.” (Doc. 215 at 77). Dial likewise rejected the Reed-Buskey Senate Plan because it retrogressed some districts and fell short of 62 percent black population. (Id. at 126).

The legislative plans that the plaintiffs now challenge, Act 2012-602 and Act 2012-603, were introduced, considered, and approved during a special session of the legislature. All of the proposed substitutes were defeated, and Governor Bentley signed the Acts into law on May 31, 2012. The votes to approve the plans fell largely along party lines. (NPX 314-15; Def. Supp. Exs. 21, 25).

C. Decision of the Supreme Court

In 2015, the Supreme Court vacated our previous final judgment upholding the districts and remanded the case. Ala. Legislative Black Caucus, 135 S.Ct. at 1262-63. The Supreme Court “focus[ed] upon four critical District Court determinations”: whether the plaintiffs could bring a statewide claim of racial gerrymandering, whether the Democratic Conference plaintiffs had standing, whether race predominated, and whether the districts survived strict scrutiny. Id. at 1264. We explain each issue in turn.

First, the Supreme Court held that the plaintiffs’ “undifferentiated statewide” claims of racial gerrymandering were “insufficient.” Id. at 1266. It remanded so that the plaintiffs could challenge individual districts as racial gerrymanders. Id. We were instructed to review each challenged district individually, but we were also instructed to consider “statewide evidence to prove that race predominated in the drawing of individual district lines.” Id. at 1267. The Supreme Court further stated that Alabama “expressly adopted and applied a policy of prioritizing mechanical racial targets above all other districting criteria (save one-person, one-vote)” and remanded for a determination of how that policy affected individual districts. Id. at 1267-68.

Second, the Supreme Court remanded with instructions to “reconsider the [Democratic] Conference’s standing by permitting the [Democratic] Conference to file its list of members and permitting the State to respond, as appropriate.” Id. at 1270.

Third, the Supreme Court held that Alabama’s “requirement that districts have approximately equal populations is a background rule against which redistricting takes place.” Id. at 1271. As a result, it “is not one factor among others to be weighed against the use of race to determine whether race ‘predominates.’ ” Id. at 1270. Instead, “it is part of the redistricting background, taken as a given, when determining whether race, or other factors, predominate in a legislator’s determination as to how equal population objectives will be met.” Id. The Supreme Court suggested that had we “not taken a contrary view of the law, [our] ‘predominance’ conclusions, including those concerning the four districts that the Democratic Conference specifically challenged, might well have been different.” Id. at 1271.

Fourth, the Supreme Court clarified the test for strict scrutiny when a state asserts that it had a compelling interest in complying with the Voting Rights Act. The Supreme Court explained that a “mechanical interpretation of § 5 can raise serious constitutional concerns.” Id. at 1273. Instead of asking, “How can we maintain present minority percentages in majority-minority districts?” Alabama must ask, “To what extent must we preserve existing minority percentages in order to maintain the minority’s present ability to elect the candidate of its choice?” Id. at 1274. Alabama must prove that it had “a ‘strong basis in evidence’ in support of the (race-based) choice that it has made.” Id. (quoting Brief for the United States as Amicus Curiae Supporting Neither Party 29, Ala. Legislative Black Caucus, 135 S.Ct. 1257 (Nos. 13-895, 13-1138)). “[Legislators ‘may have a strong basis in evidence to use racial classifications in order to comply with a statute when they have good reasons to believe such use is required, even if a court does not find that the actions were necessary for statutory compliance.’ ” Id (quoting Brief for the United States as Amicus Curiae Supporting Neither Party 29).

The Supreme Court also discussed Senate District 26 in detail. The Court found “strong, perhaps overwhelming, evidence that race did predominate as a factor when the legislature drew the boundaries of Senate District 26.” Id. at 1271. It observed that “[t]he legislators in charge of creating the redistricting plan believed, and told their technical adviser, that a primary redistricting goal was to maintain existing racial percentages in each majority-minority district, insofar as feasible.” Id. And it found “considerable evidence that this goal had a direct and significant impact on the drawing of at least some of District 26⅛ boundaries.” Id. But it made no finding that race predominated in District 26 and instead remanded that issue to this Court, Id. at 1272.

D. Subsequent Proceedings

After we received the mandate from the Supreme Court, we directed the parties to provide us with several pieces of information. First, we directed the plaintiffs to identify the districts that they intended to challenge as racial gerrymanders. (Doc. 225 at 2). They challenged every district with a majority-black total population— House Districts 19, 32, 52-60, 67-72, 76-78, 82-85, 97-99, and 103, and Senate Districts 18-20, 23, 24, 26, 28, and 33. (Doc. 229 at 2). The Black Caucus plaintiffs later abandoned their challenge to House District 84. (Doc. 300-1 at 107).

Second, we directed the Democratic Conference plaintiffs to file a list of members residing in the challenged districts. (Doc. 225 at 2). They did so, (Doc. 238), and Alabama did not file a response to that list.

Third, we asked the parties to identify any new evidence that they hoped to introduce and to consider whether an evidentia-ry hearing would be beneficial. (Doc. 225 at 2). They submitted hundreds of supplemental exhibits based on evidence already introduced at trial. (Doc. 229 at 2-3). The plaintiffs also asked us to take judicial notice of census data, several legislative acts, and the preclearance submissions that Alabama sent to the Department of Justice regarding its 2001 redistricting plans. (Id.). All parties declined the opportunity for an evidentiary hearing. (Id.).

We have readopted our earlier findings of fact and conclusions of law to the extent that the Supreme Court did not address them. We readopted our orders on one person, one vote; partisan gerrymandering; and the claim that the redistricting acts violated the Equal Protection Clause based on the interaction between the Acts and the local legislative system in Alabama. (Doc. 242 at 2 (readopting Docs. 53 and 174)). We also readopted those portions of our previous final judgment that decided the claim of vote dilution brought under section 2 and the claim of intentional discrimination brought under section 2, the Fourteenth Amendment, and the Fifteenth Amendment. (Id. (readopting parts of Doc. 203)). And we readopted our previous findings of fact on all claims other than racial gerrymandering, as well as our previous findings about historical fact and witness credibility. (Doc. 242 at 3). The Black Caucus plaintiffs moved for reconsideration of our previous orders in the light of Arizona State Legislature v. Arizona Independent Redistricting Commission, — U.S. -, 135 S.Ct. 2652, 192 L.Ed.2d 704 (2015), and we denied that motion. (Docs. 261, 265).

Finally, we received briefs in support of final judgment on liability. (Docs. 256, 258, 263, 271-72). Before oral argument, we requested additional information from-the parties, (Doc. 275), which they provided, (Docs. 276-80). At oral argument, we asked the plaintiffs whether they would be willing to submit an alternative statewide plan that complies with federal law and the redistricting criteria adopted by Alabama. They agreed, and we ordered them to do so, (Doc. 283), over the objection of Alabama. The Black Caucus and Democratic Conference plaintiffs each filed a .plan, along with explanatory briefs and several hundred more exhibits. (Docs. 285-87, 294). Alabama deposed both mapmakers and filed their depositions, and it submitted a response brief and eighteen exhibits. (Docs. 295-97). The plaintiffs then submitted reply briefs with more exhibits. (Docs. 298-301). We imposed no page limits on any briefs on remand.

II. FINDINGS OF FACT AND CONCLUSIONS OF LAW

The Democratic Conference plaintiffs allege that all of the districts that are majority-black by total population are the product of a racial gerrymander; the Black Caucus plaintiffs challenge the same districts, with the exception of House District 84. In the plaintiffs’ view, the drafters maintained a policy of meeting racial targets or floors in each of the districts. According to the plaintiffs, the drafters attempted to replicate the percentage of black population that lived in each challenged district before redistricting. They argue that the use of these targets caused each of these districts to be a racial gerrymander.

To make out a claim of racial gerrymandering, the burden is initially on the plaintiffs to prove that “race was the predominant factor motivating the legislature’s decision to place a significant number of voters within or without a particular district.” Miller v. Johnson, 515 U.S. 900, 916, 115 S.Ct. 2475, 132 L.Ed.2d 762 (1995). The Supreme Court has explained that the plaintiffs “must prove that the legislature subordinated traditional race-neutral districting principles ... to racial considerations.” Ala. Legislative Black Caucus, 135 S.Ct. at 1270. Traditional considerations include factors such as protecting incumbents, respecting communities of interest, maintaining contiguity and compactness, conforming to political subdivisions, and sorting based on political affiliation. Id. Race predominates over these factors if “[r]ace was the criterion that, in the State’s view, could not be compromised.” Shaw v. Hunt, 517 U.S. 899, 907, 116 S.Ct. 1894, 135 L.Ed.2d 207 (1996). When the plaintiffs proceed with only indirect evidence that race predominated and the design of a district can be explained by traditional districting criteria, the plaintiffs have not satisfied their burden of proof.

If the plaintiffs meet their burden, then the defendants must prove that the district satisfies strict scrutiny. “Strict scrutiny does not apply merely because redistricting is performed with consciousness of race. Nor does it apply to all cases of intentional creation of majority-minority districts.” Bush v. Vera, 517 U.S. 952, 958, 116 S.Ct. 1941, 135 L.Ed.2d 248 (1996) (citation omitted). The elusive distinction between “being aware of racial considerations and being motivated by them ..., together with the sensitive nature of redistricting and the presumption of good faith that must be accorded legislative enactment, requires [us] to exercise extraordinary caution.” Miller, 515 U.S. at 916, 115 S.Ct. 2475. We “must be sensitive to the complex interplay of forces that enter a legislature’s redistricting calculus.” Id. at 915-16, 115 S.Ct. 2475. “[T]he Constitution does not place an affirmative obligation upon the legislature to avoid creating districts that turn out to be heavily, even majority, minority. It simply imposes an obligation not to create such districts for predominantly racial, as opposed to political or traditional, districting motivations.” Easley v. Cromartie, 532 U.S. 234, 249, 121 S.Ct. 1452, 149 L.Ed.2d 430 (2001).

We have already ruled, (Doc. 203 at 160), and the parties do not dispute, that compliance with federal election law, including sections 2 and 5 of the Voting Rights Act, was a compelling governmental interest at the time of redistricting. The Supreme Court has explained that a legislature must have a “strong basis in evidence” that its district is narrowly tailored to comply with the Act:

This standard ... ‘does not demand that a State’s actions actually be necessary to achieve a compelling state interest in order to be constitutionally valid.’ And legislators ‘may have a strong basis in evidence to use racial classifications in order to comply with a statute when they have good reasons to believe such use is required, even if a court does not find that the actions were necessary for statutory compliance.”

Ala. Legislative Black Caucus, 135 S.Ct. at 1274 (citation omitted) (quoting Brief for United States as Amicus Curiae in Support of Neither Party 29). Put succinctly, this inquiry should not devolve into “a fight over the ‘best’ racial quota.” Id. at 1281 (Thomas, J., dissenting).

The plaintiffs have proved that race predominated in 14 of the 36 districts that they challenge: Senate District 20, Senate District 23, Senate District 26, Senate District 28, House District 32, House District 53, House District 54, House District 68, House District 70, House District 71, House District 77, House District 82, House District 85, and House District 99. Of those 14 districts, only Senate District 23 and House District 68 survive strict scrutiny. We explain our reasoning in the rest of this section, which we divide in six parts. First, we conclude that the Democratic Conference plaintiffs have standing. Second, we make findings about the number of majority-black districts in the challenged plan and the benchmark — the 2010 Census population in the 2001 districts. Third, we discuss the court-ordered alternative plans and the parties’ arguments about them. Fourth, we address the general arguments and evidence about racial predominance. Fifth, we address the general arguments and evidence about strict scrutiny. Sixth, we examine each challenged district individually.

A.Standing

The Supreme Court remanded with instructions to “reconsider the Conference’s standing by permitting the Conference to file its list of members and permitting the State to respond, as appropriate.” Id. at 1270 (majority opinion). In accordance with that mandate, we ordered the Democratic Conference to file its list of members, (Doc. 225 at 2), and the Democratic Conference complied, (Doc. 238). Alabama elected not to file a response to that list, although we gave it the opportunity to do so. (Doc. 237 at 2.) We find that this list establishes that the Democratic Conference has members who reside in all of the challenged districts, and we conclude that this list “is sufficient to meet the Conference’s burden of establishing standing.” Ala. Legislative Black Caucus, 135 S.Ct. at 1269.

B.Majority-Black Districts

Throughout this litigation, the parties often have relied on total population statistics. We have used those statistics because the plaintiffs argued that they prove that race predominated. We will continue using those numbers in this opinion when the parties argue about racial predominance using total population statistics.

But for purposes of the Voting Rights Act, the relevant statistic is voting-age population. See, e.g., 52 U.S.C. §§ 10301, 10304 (referring to the right to vote); Bartlett v. Strickland, 556 U.S. 1, 18, 129 S.Ct. 1231, 173 L.Ed.2d 173 (2009) (opinion of Kennedy, J., joined by Roberts, C.J., and Alito, J.) (applying section 2); Georgia v. Ashcroft, 539 U.S. 461, 485-90, 123 S.Ct. 2498, 156 L.Ed.2d 428 (2003) (applying section 5), abrogated on other grounds by 52 U.S.C. § 10304. To avoid confusion, we use “majority-black district” to refer to a district with a majority-black voting-age population, not a majority-black total population. When we refer to a district with a majority-black total population, we will add the words “total population.”

To the extent we earlier readopted any findings about the number of majority-black districts, we now substitute the following findings. The legislature increased the number of majority-black House districts from 26 in 2010 to 27 in Act 602. In 2010, House Districts 19, 32, 52-60, 67-72, 76-78, 82, 83,. 97-99, and 103 were majority-black. (Doc. 35-2). All of these districts are majority-black in Act 602, as is House District 84. (Id.). On the Senate side, the legislature increased the number of majority-black districts from 7 in 2010 to 8 in Act 603. In 2010, Senate Districts 18, 19, 20, 23, 24, 26, and 33 were majority-black. (Doc. 35-3). All of those districts are majority-black in Act 603, as is Senate, District 28. (Id.).

C. The Plaintiffs’ Court-Ordered Alternative Plans

After an initial round of briefs and supplemental exhibits, the plaintiffs had produced several alternative plans, but none complied with the ±1% population deviation set by the Committee. At oral argument, the plaintiffs agreed to draw plans that complied with the state redistricting criteria and federal law. We ordered them to do so over Alabama’s objection. The Black Caucus plaintiffs submitted their 1% Plan, and the Democratic Conference plaintiffs submitted their Plan A. The parties agree that both plans adhere to the ± 1% deviation and have no more precinct splits or incumbent conflicts than the enacted plan. The plaintiffs assert that race did not predominate in their plans and that their districts comply with federal law and the Committee guidelines, but the plaintiffs failed to prove that their plans comply with all of the requirements of federal law. For this reason, we cannot treat the plaintiffs’ districts as conclusive evidence that race predominated in a district or that a district was not narrowly tailored.

The plaintiffs’ mapmakers came dangerously close to admitting that race predominated in at least some of the districts in their plans. The Black Caucus plaintiffs’ expert, William Cooper, testified in his deposition that he intentionally increased the black population in Senate District 9 to create an influence district “because there was an interest that was expressed during that time period in 2012 when I was doing HB — or SB-5 to create a district in — a Senate District in north Alabama, specifically in Madison County, that would have at least some influence.” (Doc. 297-1 at 93-94). He reiterated later in his testimony that he “created an influence district consciously” in Senate District 9. (Id. at 126).

Cooper’s use of race in this manner was not limited to Senate District 9. The black population percentage in District 26 would be over 17 points lower in the 1% Plan than it was in 2010. (Doc. 30-41 at 1; Doc. 296-1 at 4). He explained that he “did consciously lower the black population percentage [in Senate District 26] by extending it out into Lowndes [County] and Au-tauga [County],” (Doc. 297-1 at 129). And in District 32, he testified that he “chose to create” a majority-black district with a black voting-age population of 50 percent and split precincts to do so:

A: Well, according to the court order, I needed to create 27 majority-black districts, and [House District 32] is where I chose to create one of the ones. That, logically, is a little more difficult—

Q: And how did you know when you created a black district?

A: When I had more than 50 percent black voting age. Generally, I would stop at that point because I was working at the precinct level.

Q: Okay.

A: In this case though, precincts had to be split.

(Id. at 124).

The Democratic Conference plaintiffs’ mapmaker, Anthony Fairfax, testified that he also drew some district lines on the basis of race:

A: ... There were certain circumstances where I felt that the districts had an exceedingly high [black population] percentage.... There were some that were 70 percent and higher, and so in that particular case, it bordered packing.

Q: Okay. And so if you came to a district that was 70 percent, would you look at the racial composition of the district as you were drawing it?

A: It was done probably on and off. Yeah, I would say at some times you would have to look at the racial composition. There’s no other way to actually stop from packing if you don’t look at the racial composition.

Q: Would you tend to look at it as you go, as you were adding precincts, or would you draw a district and then look back to see what the composition was?

A: Usually there [were] no racial indicators, but if I saw that we’re getting to 75, 78, 80 percent or something thereabouts, then you have to look at the racial indicators for the voting districts.

Q: Okay. And as you looked at it, you know, what would you do if you get a district that was getting into the high 70s?

A: You would have to move into areas, neighborhoods, that were less black, less African-American, let’s say.

Q: Okay. So let’s say hypothetically you were drawing a district, and you noticed that it was getting to 75 percent or above. You would then start looking for precincts that had a lower percentage of African-American voters?

A: Areas, yes. You move into those areas, not necessarily specific precincts that you grab, but those areas that would actually offset that percentage. There really isn’t any other way to do that.

Q: ... Can you tell me now any Senate districts where you got to a high percentage and so you started looking for areas with a lower percentage of African-American voters?

A: There were. I can’t tell you specifically which numbers because it’s a process that you’re working on. It’s not necessarily just one.

(Id. at 78-76).

He later testified that race may have dictated his redistricting choices in House District 68 as well:

Q: So you weren’t looking for population on the borders to try to make sure [House District] 68 stayed above 50 percent [black]?

A: There could have been consideration to make sure that stayed majority minority. Yeah, there could have been consideration to do that.

Q: Are you saying you just don’t remember one way or the other?

A: Right, right. And the reason why is, again, the process of collecting ... the voting districts, there may have been some time where if I did and it dropped below 50, then I want to get it back up. If it dropped into the 40s, then I want to get back up.

Q: What would you do to get back up?

A: Well, I’d have to go into areas that would increase the African-American population.

(Doc. 296-7 at 191-92). But neither of the mapmakers admitted that race predominated over traditional districting criteria in any district.

Moreover, neither of the plaintiffs proved that their alternative plans satisfied the Voting Rights Act. A cursory look at the black voting-age population percentages illustrates why we cannot assume that the alternative districts avoided retrogression and satisfied section 2. For example, the Black Caucus plaintiffs dropped Senate District 23 from 61.79 percent black in the benchmark to 51.06 percent black in the 1% Plan, and they dropped House District 32 from 56.62 percent black to 50.82 percent black. (Doc. 203 at 47-48; Doc. 295 at 18-19). The Democratic Conference plaintiffs took Senate District 26 from 70.87 percent black in the benchmark to 57.70 percent black in Plan A, and they took House District 19 from 67.70 percent black to 50.13 percent black. (Doc. 203 at 47-48; Doc. 295 at 18-19). These districts may in fact satisfy section 2 and section 5 of the Voting Rights Act, but the plaintiffs have failed to prove that they do. Although plaintiffs are not required to produce alternative plans, those plans cannot conclusively prove the unconstitutionality of the challenged plans when we are uncertain whether they violate federal law.

The Black Caucus plaintiffs offer no arguments about how their 1% Plan complies with the Voting Rights Act. The Democratic Conference plaintiffs make several arguments, but they fail to persuade us. First, they cite Dr. Alan Lichtman’s testimony at trial that a bare majority of black voters provides the ability to elect, as well as his testimony about Montgomery County and Madison County. (Doc. 287 at 22-23). We discredited his statewide testimony because “Lichtman did not conduct any statistical analysis to determine whether factors other than race were responsible for the voting pattern,” such as “affluence, strength of a political campaign, or party loyalty.” (Doc. 203 at 79). He “also did not conduct any analysis of Democratic primaries between black and white candidates, which might have offered further evidence about whether white voters are more likely to support white Democrats and black voters are more likely to support black Democrats.” (Id.). The Democratic Conference plaintiffs’ reliance on election returns in uncontested general elections does not remedy that problem. Although we credited the testimony about specific alternative districts in Madison and Montgomery Counties, Lichtman’s testimony does not prove that this new plan — especially the districts in other parts of the state — satisfies the Voting Rights Act. The plaintiffs argue that the districts comply by dint of a coalition with Hispanics, but they fail to prove that Hispanics and blacks form a cohesive coalition.

Second, the Democratic Conference plaintiffs argue for the first time in the brief that explains their plan that the correct statistical category is any-part black, not single-race black. (Doc. 287 at 24). They fail to explain why we should change our metric at this late date, after they provided us with single-race black statistics when attacking the enacted plan. More importantly, they fail to explain how the any-part black statistics would prove that Plan A avoids retrogression; if we use any-part black statistics for Plan A, then we would have to do so for the benchmark as well.

Third, the Democratic Conference plaintiffs argue that, “[e]ven if small increases in black population were proven to be necessary, it would be a simple matter to increase those numbers slightly, consistent with traditional districting criteria.” (Id. at 19). They do not explain why we can be sure that they could raise the black population percentage without subordinating traditional districting principles to race, and their own expert warned of a potential “domino effect” across the state when the shape of one district changes. (Doc. 296-7 at 164, 202). We reject this argument as well.

We also disagree with the argument made by Alabama that “where Plaintiffs’ plans present districts with very similar lines or features to those in the Legislature’s plans, these districts should be affirmed for that reason alone.” (Doc. 295 at 38). If an alternative district has identical lines, we take the plaintiffs’ offering of that plan as a concession that race did not predominate in the enacted district. But where there are significant differences, we must review the record for evidence of racial gerrymandering in the enacted district.

A district is constitutional even if the drafters were concerned about race, so long as race was not “the predominant factor motivating the legislature’s decision to place a significant number of voters within or without a particular district.” Ala. Legislative Black Caucus, 135 S.Ct. at 1270 (quoting Miller, 515 U.S. at 916, 115 S.Ct. 2475). That is, we must determine whether “the legislature subordinated traditional race-neutral districting principles ... to racial considerations.” /¿(alteration in original) (quoting Miller, 515 U.S. at 916, 115 S.Ct. 2475). The plaintiffs tell us that they did not subordinate traditional districting criteria to race, so if they made the same choices as the legislature in a district, it is strong evidence that the legislature did not subordinate traditional dis-tricting criteria to race. Alternative plans also can establish that a certain black population percentage was unavoidable based on demographics and traditional districting criteria.

D. Racial Predominance Generally

The parties and the dissent make four general arguments about racial predominance, and we address each one in turn. First, the plaintiffs yet again attack the ± 1% population deviation by arguing that it caused the drafters to subordinate traditional districting principles to racial considerations, but they ignore our opinions and those of the Supreme Court. Second, the plaintiffs argue that the drafters explicitly prioritized the use of racial targets above other considerations in the challenged districts, but this argument does not prove that race predominated in every district. Third, the dissent offers its own version of the standard for racial predominance, but its method is too inflexible. Fourth, Alabama argues that the plaintiffs have failed to establish that any county split or precinct split was the result of racial predominance, but once again this argument does not prove that race predominated in every district,

a. The ±1% Deviation Does Not Prove that Race Predominated.

The Black Caucus plaintiffs once again challenge the population deviation. They contend that splitting counties is evidence of racial gerrymandering because the provision of the Alabama Constitution that requires counties to be kept whole, Ala. Const. Art. IX, § 200, is the “most important” districting principle in Alabama, (Doc. 256 at 12, 15-16), and Alabama split more counties than it would have with a looser population deviation. The Black Caucus plaintiffs argue that “[wjhether a strict ± 1% rule is an ‘appropriate[ ]’ apportionment ... depends on how it interacts with race and traditional districting principles.” (Id. at 17). Because a ±5% deviation is the bare minimum to satisfy federal law, the Black Caucus plaintiffs believe that the decision to better realize one person, one vote is evidence of racial gerrymandering.

This argument is frivolous. Five percent is the constitutional floor, not a ceiling. The Constitution does not protect a right to less equal districts, and more equal districts are not proof of racial gerrymandering. Our opinion on this issue, (Doc. 53 at 4-10), and the decision of the Supreme Court in this case, 135 S.Ct. at 1263, have repeatedly explained that under federal law, Alabama is entitled to use a ±1% population deviation. One person, one vote is merely “part of the redistricting background, taken as a given, when determining whether race, or other factors, predominate in a legislator’s determination as to how equal population objectives will be met.” Id. at 1270.

b. Alabama Had a Statewide Policy of Racial Targets, but the Plaintiffs Still Must Prove that the Policy Caused Race to Predominate in Individual Districts.

The Supreme Court found that Alabama pursued a policy of keeping the black population in each majority-black district at or above the percentage in that district in 2010, but it remanded for this Court to determine whether the legislature subordinated traditional districting criteria to race in individual districts. See id. at 1267. The plaintiffs argue that the targets were applied statewide in such a way that race predominated in every challenged district. The Democratic Conference plaintiffs also argue that Hinaman and Senator Dial explicitly subordinated the goals of maintaining communities of interest, preserving county boundaries and precinct lines, and avoiding changes in the districts.

Without further district-specific inquiry, these arguments fail to prove that race necessarily predominated in the design of any challenged district. As the plaintiffs’ own mapmakers explained on remand, there are “places where you just literally cannot avoid” a certain black population percentage. (Doe. 297-1 at 30). That is, the legislature might have matched certain percentages of black population because they followed traditional districting criteria.

The testimony of McClendon, Dial, and Hinaman establishes that the drafters did not necessarily prioritize racial targets over all other traditional districting criteria in every single district. None of the three gave any indication that “[r]ace was [a] criterion that ... could not be compromised.” Shaw, 517 U.S. at 907, 116 S.Ct. 1894. Representative McClendon testified that a “district is retrogressed if the minorities in that district, whether by race or language, are worse off after redistricting than they were before redistricting.” (Doc. 217 at 221). This statement does not mean that he prioritized maintaining the black population percentage over all other criteria. Senator Dial testified that “to keep from regressing [a] district and increasing [its] population, we had to increase it per-centagewise on the same number of minority votes that we had.” (Doc. 215 at 36). But his goal was “bringing the African American populations of those districts up to approximately equal as best [we] could with what it had been in 2001.” (Id. at 37). Senator Dial did not testify that he subordinated other district