Full opinion text
SPOTTSWOOD W. ROBINSON, III, Circuit Judge: The City of New Orleans, Louisiana, seeks a judgment, pursuant to Section 5 of the Voting Rights Act of 1965, declaring that its plan of redistricting for councilmanic elections does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color. The plan is the City’s current response to the call of its charter for action decennially to assure councilmanic districts approximately equal in population. The City contends that the plan is a projection of legitimate criteria conceived objectively and applied without potential discriminatory consequences. The Government and the intervenors challenge this position on the ground that the plan will operate to dilute the vote of the city’s black minority. The intervenors insist additionally that the plan was designed to achieve that very end. Conformably with Section 5, this three-judge court was convened to hear and determine the controversy. As hereinafter elaborated, we find that the redistricting which the plan proposes will have the effect of abridging the vote of the black citizenry of New Orleans. So concluding, we do not reach the question whether the City’s burden of showing a racially nondiscriminatory purpose has been borne. I. THE EVOLUTION OF THE REDISTRICTING PROBLEM A. Portents of the Problem The City of New Orleans embraces all of the territory of Orleans Parish, Louisiana. Lake Pontchartrain furnishes a natural boundary on the north, as the Mississippi River partly does on the south. The Mississippi also. separates the southeasterly portion, known as Algiers, from the rest of the city. Travel between the two areas necessitates use either of the single bridge connecting Algiers and downtown New Orleans or the limited ferry service available. A controversy germinated by Algiers’ persistent demand for more adequate means of transportation across the Mississippi was to color the redistricting activities leading to this litigation. The population of New Orleans is 593,471 persons, of whom 267,308 are black. Registered voters in the City numbered 242,416 of whom 83,588 are black. White citizens thus comprise 55.-0% of the population and 65.5% of tfie voters; black citizens make up the remaining 45.0% of the population and 34.5% of the electorate. The large numerical strength of the black community as well as its much weaker proportional voting power were destined to play major roles in the gestation of the central issue in this case. Although some black families are to be found in most of the principal areas of New Orleans, there is no general geographical blending of black and white residences. The black population is heavily concentrated in a series of neighborhoods extending eastwardly and westwardly through the central part of the City; the areas lying north and south of this belt, with minor exceptions, are overwhelmingly white. This residential pattern looms large in any redistricting effort that would safeguard the black vote against dilution. Other relevant and important facets of the general situation in New Orleans derive from the scheme pursuant to which its legislative body is elected. That body is the City Council, composed of seven members, of whom five are chosen from single-member districts and the remaining two from the city at large. Four of the five districts extend from the Mississippi River to Lake Pontchartrain, and thus traverse the entire city; the other district is a wedge-shaped portion of the downtown area. Primary elections for the Council are by majority vote, and singleshot voting is prohibited. These phenomena cooperate with others inherent in the plan under consideration to pose the legal threat to the redistricting which the plan would bring about. B. Crystallization of the Problem Toward the end of 1971, the City Council of New Orleans initiated procedures to redistrict the city for council-manic elections. The catalyst for this undertaking was a provision of the city charter requiring the Council, after each national decennial census, to remake the districts into elective enclaves approximately equal in population. From the beginning, the Council recognized that a plan reorganizing the district boundaries would constitute a suffrage change within the meaning of Section 5 of the Voting Rights Act, requiring federal approval prior to operation. The saga of the Council’s quest for approval is lengthy, and for immediate purposes only the highlights of its endeavors need be.recounted. On March 2, 1972, the Council enacted Ordinance No. 4796 M.C.S., which incorporated a scheme of redistricting (Plan I). Acknowledging the coverage of Section 5, the City Attorney, on May 4, 1972, submitted Plan I to the Attorney General of the United States with a view to a determination that the plan .“[did] not have the purpose [and] will not have the effect of denying or abridging the right to vote on account of race or color.” On January 15, 1973, the Attorney General interposed an objection to Plan I on several grounds. The boundaries of the districts projected, he stated, “appear [] to dilute black voting strength by combining a number of black voters with a larger number of white voters in each of the five districts.” “ [I] t does not appear,” he added, “that the district lines are drawn as they are because of any compelling governmental need,” and the lines “do not reflect numeric population configurations or considerations of district compactness or regularity of shape.” By force of Section 5, the effect of this objection was to render Plan I inoperable unless and until this court granted approval in accordance with the standard prescribed by that section. Subsequently, and after attempts to enlarge its membership through a charter amendment were aborted, the Council, on May 3, 1973, passed Ordinance No. 5154 M.C.S., which adopted another redistricting scheme (Plan II). That scheme effected some modifications of Plan I, and on May 10, 1973, the City Attorney submitted it to the Attorney General. A second objection interposed by the Attorney General on July 9, 1973, reiterated the grounds originally advanced and cited additional reasons for his disapproval of Plan II. The Attorney General concluded “that the boundary lines prescribed by [Plan II] appear to effect a dilution of black voting strength in the same manner as did the boundary lines prescribed in [Plan I] ” He found that “[w]hile there are significant differences between [Plans I and II] especially in regard to the number of non-contiguous districts and the population by race of proposed District B,” Plan II, like Plan I, “nevertheless combines a number of black voters with a larger number of white voters in four of the five districts.” He further found that the district lines set in Plan II, like those drawn in Plan I, “do not appear to have been passed on any compelling governmental need or to reflect numeric population configurations or eonsiderations of district compactness or regularity of shape.” Continuing, the Attorney General was of the view that the objectionable dilution of black voting strength in both redistricting plans is primarily attributable to the vertical shape of the submitted districts. Because the predominantly black neighborhoods in the city are located generally in an east to west progression, the vertical districts in the submitted plans divided the black neighborhoods and combined them with white areas in the north and the south of the city resulting in districts with more white than black voters. And “[ajlthough the shape of the submitted districts may have been in part based upon the shape of the seventeen wards in New Orleans,” the Attorney General pointed out that “the wards do not of themselves define official boundaries bearing upon the election of or representation by city council members, and adherence to the traditional shape of the wards may not serve to justify the resulting prohibited dilution of black voting strength under Section 5.” So, said the Attorney General, while “[w]e do not mean by this analysis to imply that other reapportionment plans based upon vertical districts will necessarily divide the black neighborhoods in the city to the degree found objectional here,” [w]e have determined, however, that a dilutive result similar to that found in the submitted plan is difficult to avoid when such districts are utilized to the extent found in the submitted plan, and that the extent to which such districts were utilized is not necessary to achieve a successful reapportionment of the city’s population. The failure to gain the Attorney General’s approbation for either plan has left New Orleans unable to conduct councilmanic elections on a redistricted basis. That, in turn, prompted six members of the Council to file this action on July 25, 1973, seeking a judgment declaring that Plan II neither has the purpose nor will have the effect of denying or abridging the right to vote on account of race or color. We have held four days of hearings during which a great deal of evidence of various sorts was introduced by testimony, both live and deposed, stipulations and exhibits. The parties have also briefed the issues extensively, and have presented oral argument Once these voluminous materials are sifted and organized, the relevant facts appear without material contradiction, and the legal aspects of the New Orleans picture come into sharp focus. II. THE EVOLUTION OF THE REDISTRICTING PLANS The spadework for plans delineating a redistricting of New Orleans were performed by the Council’s research staff, an administrative arm. The two versions which emerged from the Council as Plans I and II were adaptations of staff proposals to the views prevailing among the couneilmen. To gain the proper perspective on Plan II, the subject of this litigation, we must examine the evolution of both of the plans. A. The Formulation of Plan I Armed with the 1970 census figures, guidelines of the Attorney General promulgated pursuant to Section 5, a recent federal court decision on legislative reapportionment in Louisiana, and other data, the research staff developed numerous redistricting concepts, some of which evolved into concrete plans for consideration by the Council. A group of several factors exerted the primary influence on the staff’s determinations leading to the district boundaries set by the submission which ultimately became Plan I. The staff gave principal attention to the city charter’s demand for five councilmanic districts of equal population. Beyond this, the staff noted instructions of the City Attorney, supplementing the Attorney General’s guidelines, to avoid lines which would divide concentrations of minority voters and thereby reduce their voting strength. The staff also undertook to observe, as far as possible, traditional political boundaries —ward and precinct lines — and natural geographic boundaries' — the Mississippi River and Lake Pontchartrain, as well as major streets and canals. Yet another effort was to steer clear of boundaries which would place two or more incumbent couneilmen in the same district. And the staff endeavored to keep the councilmanic districts compact and geographically integral. The complex question of Algiers, and the inseparable dispute over additional bridging of the Mississippi River, were also instrumental in shaping Plan I. Algiers, as we have mentioned, is disjoined by the Mississippi from downtown New Orleans, and only one bridge spans the river from Algiers to downtown New Orleans. The bridge is the principal corridor for needed access by the residents of Algiers to the remainder of the city; an infrequent ferry service is of little use to the daily commuter. Algiers is a high-growth residential area, and its citizens do not fully share with other inhabitants of the city the same political and economic concerns. Transportation across the river to and from Algiers is dear to the people living there, and is a much debated issue in New Orleans. The mix of the above elements produced a proposal to adopt the redistricting scheme which was to become Plan I. The proposal, O.C. No. 5194, was presented for community views at three public hearings-. The plan envisioned the division and distribution of the territory of Algiers among three different councilmanic districts, and to this the residents of Algiers voiced strong objection. Several black groups vigorously opposed the plan because, by their estimate, it diluted the black vote; in an effort to increase the potential for black representation on the Council, they sought to restructure the plan to provide for as many as eleven single-member districts. Nonetheless, with slight modifications, the proposal passed the Council as Plan I, becoming Ordinance No. 4796 M.C.S., only to be disapproved by the Attorney General. B. Impediments to Black Suffrage At the hearings on Plan I, black citizens’ groups advocated both an increase in the size of the City Council and the. elimination of at-large elections of councilmen. The goal of this approach was greater opportunity for black voters to take part meaningfully in the selection of those who are to sit on the Council. Witnesses claimed that the existing scheme — five councilmen from districts and two at large — perpetuated limitations on the ability of the black voting population to engage effectively in the choice of councilmanic membership. In recounting from hard personal experience the barriers to full political participation by minorities, black opponents of Plan I cited a variety of restraints which we find quite revealing. As the prime example of past discriminatory practice, the expansionists stressed the long history of racial segregation in education, housing, public facilities and virtually all facets of everyday life in New Orleans. With special reference to suffrage, witnesses attested to past voting practices which worked to exclude blacks from the registration rolls and to stifle minority participation in elections. Even until recent times, they reminded listeners, strict proof of residency of specified duration, and confinement of registration to one location —the city hall — had persisted as obstacles to black would-be voters. Testimony at the hearings further indicated that the candidate-selection process preceding councilmanic campaigns created additional problems for New Orleans’ black citizens. To maximize citywide exposure, aspirants for councilmanic office are often invited to join mayoral tickets and .to campaign with mayoral candidates as a team, and invitees are the personal choices of those candidates. Endorsements from local organizations — the white political power structure — are another component in the selection. Black citizens running for office are hampered both by their generally more individualistic political philosophies and their more limited financial resources. No black person has ever won election to the Council. To overcome the barriers of endorsements and campaign assistance, most black candidates have run independent —albeit losing — campaigns, focusing their appeal on the black community. In recent years, the only four successful black candidates for city-wide office in New Orleans were recipients of support from white organizations or white candidates. As suggested at the hearings, the achievements of these candidates cannot be equated with open access to the voting booth and equal weight of the vote in the count. According to the expansionists, the need for increased representation on the City Council was exacerbated by the unresponsiveness of city officeholders to the wishes and wants of the black minority. Indicia of the failure of the all-white City Council to react favorably to the concerns of the black community were legion. Advocates of improved municipal services received a deaf ear from the Council more often than not. Efforts to pave streets, maintain parks and improve recreational areas in black neighborhoods have more lately been bolstered, not by improved attitudes on the part of counsel members, but by pressure to utilize funds provided by federal programs. Good faith efforts of some public officials have brought assistance to black constituents, but examples are relatively scarce. The white and black communities of New Orleans are polarized in political matters, and that is perhaps best manifested by the incidence of bloc voting in New Orleans. The record documents a history of bloc voting substantially along racial lines in both white- and black-occupied areas. The results of modern elections which black candidates entered, or in which issues of special concern to black voters are aired, demonstrate a strong trend toward overwhelming support for black candidates and “black” issues in black neighborhoods with minimal support in white neighborhoods, and vice versa Speakers at the hearings asserted that where black voters constitute a minority of the total voting population, as is 'the case in New Orleans, the negative impact of bloc voting would further impair their ability to participate effectively in political activities. To this array of factors delimiting black access to the political process, the expansionists added certain structural elements as further proof that the black vote would continue to suffer if the City Council remained small in membership and the at-large seats were preserved. In New Orleans two such .elements, both of statutory origin, are of particular significance. The expansionists attacked the majority-vote requirement and the anti-singleshot provision as primary-election mechanisms which depreciate the ballot of the black voter in councilmanic elections. The majority-vote rule obscures a black candidate’s chances of winning even if he were to receive all of the black vote. Without the possibility of a plurality victory by his candidate, the minority voter’s influence on the election results is sharply reduced. The anti-singleshot law provides that if two or more offices are to be filled — as, for example, the two at-large seats on the City Council — a voter must vote for candidates equal in number to the number of offices at stake, or else have his ballot invalidated with respect to all of those offices. So, although a voter wishes to support but one aspirant for an at-large seat on the Council, he must cast a vote against his candidate in .order to have his vote for that candidate counted. The expansionists’ arguments won a limited victory temporarily. Subsequent to the public hearings, the City Council approved ordinances offering the voters of New Orleans alternatives to a seven-member legislative body and two of them were successively submitted to separate citywide referenda. The first, Ordinance No. 4923 M.C.S., called for an expansion to eleven members, nine from districts and two at large; the second, Ordinance No. 5026 M.C.S., specified an expansion to nine members, seven from districts and two at large. Although neither ordinance embodied the central proposal advanced by black spokespersons — elimination of at-large voting, and election of all councilmen from single-member districts, as an essential feature of any expansion — both ordinances were supported by the black vote ostensibly on the theory that enlargement of council membership in any form was superi- or to the existing scheme, and raised some hope for fairer minority representation. Neither proposal received any support from white political organizations, however, and both were eventually defeated by the preponderant white vote, vote. C. The Formulation of Plan II Following the rejection by the electorate of plans for expansion of the City Council, and principally in response to vociferous outrage over the tripartite split of Algiers' in Plan I, a member of the Council directed the research staff to redraw that plan to incorporate all of Algiers into one district and to readjust the boundaries of other districts accordingly. This the staff did and one of the products of its efforts ultimately became Plan II. The staff considered the same criteria it had utilized in promulgating Plan I, but the Algiers question appears to have been the overriding concern in the restructuring of districts. Very importantly, the factors which persuaded the Attorney General to disapprove Plan 1 did not undergo reconsideration by the staff in the formulation of the concepts leading to. Plan II. The staff commenced and completed its work on Plan II while Plan I was under review by the Attorney General and before he interposed his objection to it. In toto, four new schemes revising Plan I were submitted by the staff and considered by the Council. In the meantime, the Attorney General rejected Plan I, but it does not appear that the Council addressed specifically the flaws which the Attorney General identified in that version. The eventual Plan II — relatively little more than a modification of Plan I placing Algiers in a single district — -was aired at two additional public hearings and passed by the Council with only a minor amendment — the shifting of a precinct from one district to another. Again the Attorney General registered an objection in the view that the second plan, as had the first, failed to meet the test of Section 5, and that left the fate of Plan II to the courts. III. THE HISTORICAL EVOLUTION OF SECTION 5 A. The Constitutional Background Section 1 of the Fifteenth Amendment pledges that “[t]he right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.” And so, “without further legislative specification,” Section 1 “invalidate [s] state voting qualifications or procedures which are discriminatory on their face or in practice.” The Fifteenth Amendment, however, does not rest protection of the right to vote entirely on the majestic pronouncement made by Section 1, but in Section 2 provides that “[t]he Congress shall have the power to enforce this article by appropriate legislation.” “This power, like all others vested in Congress, is complete in itself, may be exercised to the utmost extent, and acknowledges no limitations, other than are prescribed in the constitution.” The wisdom of coupling with the guaranty of Section 1 the broad enforcement authority conferred by Section 2 was fully demonstrated by the experience accumulated over the 95 years following ratification of the Fifteenth Amendment in 1870. For notwithstanding the self-executing nature of Section 1 and its enforceability in the courts, the promise it made far out ran actual realization. The grandfather clause, the white primary, the discriminatory challenge and the black gerrymander, though ultimately declared illegal, attested the multiform opposition to racial equality in voting persistent in some sections of the country. Among the subtler, but certainly not the feebler, devices suppressing black suffrage were literacy tests discriminatorily conceived and administered. In the wake of these techniques was widespread disenfranchisement of black citizens in areas where the black population was large. That was the sad reality in 1965, despite the best efforts of those who had advocated voting equality in the courts and others who had pushed for stronger voting rights laws in Congress. Another reality, equally stark, was that each of those approaches had suffered from its own difficulties. Post-Civil War statutes on the subject had proven ineffective, and modern federal legislation had aimed at facilitating case-by-case litigation of suffrage discrimination. Attempts to enforce the constitutional mandate entailed numerous lawsuits, which all too frequently became individually onerous and protracted. Beyond that, adjudications removing one obstacle to equality ofttimes went for naught in the face of substitution of another obstacle, or even of defiance or evasion of court orders. The net of it all was relatively little gain in black voting. As the House Judiciary Committee was to observe in 1965, “[t]he historic struggle for the realization of this constitutional guarantee indicates clearly that our national achievements in this area have fallen far short of our aspirations.” B. The Voting Rights Act The Voting Rights Act of 1965 mounted the Nation’s most formidable legislative assault upon the massive problem of voting discrimination. As the history of the Act discloses, “Congress felt itself confronted by an insidious and pervasive evil which had been perpetuated in certain parts of our country through unremitting and ingenious defiance of the Constitution.” And as the Act itself reveals, “Congress concluded that the unsuccessful remedies which it prescribed in the past would have to be replaced by sterner and more elaborate measures in order to satisfy the clear commands of the Fifteenth Amendment.” The 1965 congressional approach to this task was marked by renewed determination and a changed philosophy. The Voting Rights Act “implemented Congress’ firm intention to rid the country of racial discrimination in voting.” It “was designed by Congress to banish the blight of racial discrimination in voting, which [had] infected the electoral process in parts of our country for nearly a century.” It was “drafted to make the guarantees of the Fifteenth Amendment finally a reality for all citizens; it “was aimed at the subtle, as well as the obvious, state regulations which have the effect of denying citizens their right to vote because of their race.” For “Congress realized that existing remedies were inadequate to accomplish this purpose and drafted an unusual, and in some aspects a severe, procedure for insuring that States would not discriminate on the basis of race in the enforcement of their voting laws.” C. Sections U and 5 A reading of the Act in its entirety tells how extensively Congress pursued these objectives. We need not canvass all provisions of the Act, for our immediate concern is Section 5. We must, however, examine that section in light of Section 4, with which Section 5 and other remedial provisions of the Act are closely related. Section 4 automatically suspends compliance with any “test or device” as a precondition to voting in any state or political subdivision “which (1) the Attorney General determines maintained on November 1, 1964, any test or device, and with respect to which (2) the Director of the Census determines that less than 50 per centum of the persons of voting age residing therein were registered on November 1, 1964, or that less than 50 per centum of such persons voted in the presidential election of November, 1964.” The coverage of Section 4 has been extended to any other state or political subdivision with respect to which similar determinations are made as to the year 1968. The words “test or device” are defined as “any requirement that a person as a prerequisite for voting or registration for voting (1) demonstrate the ability to read, write, understand, or interpret any matter, (2) demonstrate any educational achievement or his knowledge of any particular subject, (3) possess good moral character, or (4) prove his qualifications by the voucher of registered voters or members of any other class.” A state or local unit thus covered may reinstate the test or device only by bringing an action in this court for a declaratory judgment and obtaining a determination “that [no] such test or device has been used during the ten years preceding the filing of the action for the purpose or with the effect of denying or abridging the right to vote on account of race or color.” It is to the states and political subdivisions which are covered by Section 4 that the prohibition of Section 5 applies. Section 5 provides that no person shall be denied the vote for failure to comply with “any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting different from that in force or effect” in the covered state or subdivision on November 1, 1964, or November 1, 1968, as the case may be, unless and until (a) the change is submitted to the Attorney General and he interposes no objection, or (b) in an action instituted in this court, a judgment is obtained declaring “that such qualification, prerequisite, standard, practice, or procedure does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color. ” The reason for including the proscription of Section 5 in the Act is simple. As the Supreme Court has explained, “Congress knew that some of the States covered by § 4(b) of the Act had resorted to the extraordinary strategem of contriving new rules of various kind for the sole purpose of perpetuatinig voting discrimination in the face of adverse federal decrees.” Moreover, as the Court continued, “Congress had reason to suppose that these States might try similar maneuvers in the future in order to evade the remedies for voting discrimination contained in the Act itself.” So, said the Court, “[u]nder the compulsion of these unique circumstances, Congress responded,” through the enactment of Section 5, “in a permissibly decisive manner.” The decisiveness of that response is apparent both from the wide coverage that Section 5 was given and from the caliber of the showing prerequisite to removal of its bar. IV. THE SCOPE OF SECTION 5 A. Coverage Since August 7, 1965, the State of Louisiana, in consequence of appropriate administrative determinations, has fallen within the ambit of Section 4 of the Voting Rights Act. Since the State has not exempted itself from the coverage of Section 4, the City of New Orleans remains subject to the commands of Section 5. The latter section requires clearance either by the Attorney General or by this court of “any voting qualification or prerequisite to voting, or standard, practice, or procedure with respect to voting different from that in force or effect” on November 1, 1964. The redistricting plan which is the subject of this litigation will change a number of boundaries of the five council-manic districts in New Orleans from what they were on that date. The Attorney General has interposed an objection to the plan, and the question is whether, on the evidence tested by the standard enunciated in Section 5, the plan merits our approval. Indubitably, the enactment of the ordinance adopting Plan II triggered Section 5 into operation. As the Supreme Court has admonished, “Congress intended that the Act be given ‘the broadest possible scope’ to reach ‘any state enactment which altered the election law of a covered State in even a minor way’ ”; “all changes no matter how small [are to] be, subjected to § 5 scrutiny.” The reconstitution of councilmanic districts which the plan envisions is clearly a change of a “standard, practice, or procedure with respect to voting.” As such, it falls plainly within the purview of Section 5. But to say that Section 5 is actuated by a plan proposing such a change is not to suggest that Section 5 demands disapprobation of the plan. It is to say that the plan must be disapproved unless the evidence warrants a judgment declaring that it “does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color.” That is the question which we are summoned to decide in this case. B. Relationship to the Fifteenth Amendment In considering whether the New Orleans redistricting plan passes muster under Section 5, we must bear in mind the relationship of the Voting Rights Act to the Fifteenth Amendment. The Act, in its preamble, is. declared to be legislation “[t]o enforce the fifteenth amendment to the Constitution of the United States, and for other purposes.” In Section 2 the Act, similarly to the Amendment, specifies that “[n]o voting qualification or prerequisite to voting, or standard, or practice, or procedure shall be imposed or applied by any State or political subdivision to deny or abridge the right of any citizen of the United States to .vote on account of race or color.” The legislative history of the Act establishes the full and firm allegiance of its own objectives with the goals of the Amendment. The Supreme Court summed it up when it observed that “[t]he Act was drafted to make the guarantees of the Fifteenth Amendment finally a reality for all citizens.” This close relationship, so true of the Act as an entirety, is also true of Section 5. That section “essentially freezes the election laws of the covered States unless a declaratory judgment is obtained in [this court] holding that a proposed change is without discriminatory purpose or effect.” Like other provisions of the Act, Section 5 was passed, and its validity has been sustained, as an appropriate exercise of congressional power to enforce the mandate of the Fifteenth Amendment. Section 5 proceeds to accomplish that mission through a substantially similar mandate of its own. The Amendment, in Section 1, provides in part that “[t]he right ... to vote shall not be denied or abridged by . any State on account of race [or] color”; in parallel language, Section 5 permits judicial approval of a changed voting procedure only if it “does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race, or color.” Judicial clearance of a new voting rule under Section 5 thus exacts “a judicial determination that continued suspension of the new rule is unnecessary to vindicate rights guaranteed by the Fifteenth Amendment.” C. Dilution of the Right to Vote The clearest case of violation of the Fifteenth Amendment right arises, of course, when a would-be voter is barred from exercising it; and there is no indication that the redistricting plan proposed for New Orleans will have that effect upon any voter. But both the Fifteenth Amendment and the Voting Rights Act forbid abridgment of the right to vote as well as its outright denial, and any doubt as to what abridgment of the right encompasses may readily be dispelled. The Supreme Court held in Reynolds v. Sims, a reapportionment case, and has later consistently repeated in cases arising under the Act, that “the right of suffrage can be denied by a debasement or dilution of the weight of a citizen’s vote just as effectively as by wholly prohibiting the free exercise of the franchise.” As the Court has stated it another way with specific reference to the Act, “[t]he right to vote can be affected by a dilution of voting power as well as by an absolute prohibition on casting a ballot.” And the Court has declared that by passage of the Act “Congress intended to adopt the concept of voting articulated in Reynolds v. Sims, . . . [to] protect Negroes against a dilution of their voting power.” Our investigation as to whether the redistricting plan before us has a dilutive effect on the black vote in New Orleans is greatly assisted by a pause to briefly examine theory and practice prevalent in legislative reapportionment cases, wherein essentially the same problem has arisen. It is now settled that “[t]he Equal Protection Clause [of the Fourteenth Amendment] demands no less than substantially equal state representation for all citizens, of all places as well as of all races.” When the same number of representatives on the same body are elected from districts having disparate populations, the individual votes of citizens in the more heavily populated districts obviously have less weight than the votes of those in the districts more sparsely populated. For state elections conducted on the basis of districting, the general requirement is “substantial equality of population among the various districts, so that the vote of any citizen is approximately equal in weight to that of any other citizen in the State.” Our commission in this case does not extend to this kind of malapportionment, but to conditions that might detrimentally affect the franchise on the basis of race or color. Sometimes, however, in reapportionment situations devoid of any vitiating deviation from population equality, the claim is made that something in the voting scheme — in the decided cases, a multimember district or at-large voting — operates to sap the voting strength of racial or other minorities within the district. The methodology of resolving such claims is instructive. The Supreme Court has held that in such cases “the plaintiff[’s] burden is to produce evidence to support findings that the political processes leading to nomination and election were not equally open to participation by the group in question — that its members had less opportunity than did other residents of the district to participate in the political processes and to elect legislators of their choice.” Thus, as the Fifth Circuit has pointed out, “although population is the proper measure of equality in apportionment, . . . access to the political process and not population [is] the barometer of dilution of minority voting strength.” The determination demanded in such cases is to be made on “the totality of the circumstances,” and among the factors pertinent to the question whether a minority group enjoys meaningful access “are the continuing effects of past discrimination on the minority group’s ability to participate in the political process, the opportunity for the minority group to participate in the candidate selection process, the responsiveness of elected officials to the particular concerns of the minority group, and the strength of the state interest in multimember or at-large voting.” Our examination of New Orleans’ redistricting, then, may proceed on several fundamental premises. The tendered issues are whether the City’s Plan II will have the purpose or effect of abridging the right to vote because of race or color. The decision necessitates prior investigation to ascertain whether the plan will attenuate, in terms of power or weight, the black vote in councilmanic elections The measure of the plan’s validity is equality of opportunity, and the crucial inquiry is whether the plan leaves black citizens at liberty to participate in the electoral processes on the same plane with white citizens. That assessment, toward which we now proceed, is to be made upon careful consideration of all relevant circumstances. V. THE LEGAL PROBLEM To fulfill the mandate of Section 5, we repeat, it must be shown that the redistricting plan in question does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color. The burden of that showing rests upon New Orleans. Our task is to determine whether that burden has been discharged, and that is the only function we have with respect to the controversy at hand. A. The Prime Factors Several prominent factors, proceeding from quite different sources, converge to intensify the problem confronting us. One is the size and voting strength of the black community in New Orleans, which expectably would assure the prospect of fairly substantial black representation on the City Council. At the same time the black minority, which numerically is nearly half of the total population, commands only slightly more than one-third of the vote, a circumstance that beckons inquiry as to why that is so. Another factor of great moment is the residential pattern prevalent in the city. When the five councilmanic districts are constructed vertically — by dividing lines drawn northwardly and southwardly across the entire city — it is difficult to avoid the result that each district will combine a segment of the east-west black belt with segments of contiguous white areas. Rather, the likely result is all or nearly all districts with a preponderance of white inhabitants and voters. Other vital factors are important elements of the political machinery by which the City Council is chosen. Five of the seven members are elected from the five single-member districts and the other two from the city at large. Nomination as a candidate for election requires a majority of the vote cast at a primary, and singleshot voting in primaries is not allowed. These features of the electoral process operate conjunctively to handicap a racial minority, wherever and whenever it is also a voting minority, from securing nomination of its candidates if the voting proceeds strictly along racial lines. In New Orleans it usually does, and nomination in the Democratic primary is usually tantamount to victory in the general election. It is in this general context, further ramified by additional considerations, that the redistricting proposed by Plan II must be examined. The plan changes a number of boundaries of the five preexisting vertical councilmanic districts, but leaves the districts just as vertical as they were before. When the plan is superimposed upon the housing pattern prevalent in New Orleans, the statistical picture in the five districts emerges as follows : Thus only in one district — District B —would there be a majority of black voters, and a slim majority at that. Two seats on the Council would be filled by the at-large vote, and the majority- and multiple-vote requirements for primaries would remain. B. Purpose of the Plan On the issue of the purpose — as to black voting — that engendered the redistricting scheme projected by Plan II, New Orleans has submitted extensive testimony by six members of its City Council and three members of the Council’s research staff as to the factors they respectively considered and evaluated in the course of the formulative process. Credible evidence supports the City’s assertion that compliance with the call, of the city charter for councilmanic redistricting after decennial censuses was the prime motivation in the evolution of the plan. In sum, the City asserts that the factors instrumental in the shaping of Plan II were population, boundaries —natural, historical and political, compactness of districts and avoidance of minority-vote dilution The City insists that the planners were not prompted by any desire to discriminate against any group of residents on the basis of race or color in the promulgation of the plan. The Government concedes that the bare statistical output of Plan II, taken in a vacuum, does not necessarily establish that the plan is racially discriminatory in aim. To rebut the City’s evidence, the Government, joined by the intervenors, suggests that the planners were unpardonably insensitive to the consequences of redrawing the district lines through dense settlements of black population. The Government notes that though black families live throughout Orleans Parish, they are heavily concentrated in several areas comprising something of a chain extending eastwardly and westwardly across the city. The contention is that the vertical north-south lines staking out the district boundaries established by Plan II have the purpose of discriminating against black voters since they obviously carve up major black neighborhoods which follow a horizontal east-west progression. As additional support for its claim of improper motive, the Government points to evidence tending to show a conscious effort by the planners to preserve, as far as possible, the existing districts — represented, of course, by incumbent eouncilmen. The Government also endeavors to bolster its argument by reference to the long history of past racial discrimination in New Orleans. The Government hastens to remind us that the City has the burden of proof on the issue, and that neither the Government nor the intervenors are required to come forward with an affirmative showing thereon. Such, in brief summary, is the posture of the evidence directed toward the issue of purpose of Plan II, an issue, however, which we have no occasion to decide. New Orleans, we reiterate, bears the burden of proving that the plan is untainted by racial discrimination, not only in its objective but also in its potential effect. For reasons we elaborate in the remainder of this opinion, we find that Plan II will have the effect of abridging the right to vote on account of race or color. So concluding, we need not ponder whether the framers of the plan intended that result to follow. C. Effect of the Plan In assessing the effect of Plan II upon the black vote in council-manic elections in New Orleans, the initial step is a comparison of (a) the potential of that vote when uninhibited by artificial barriers with (b) the potential the vote will have once the plan joins the family of procedures for voting at such elections. This starting point is dictated by considerations fundamental to the technique of ascertaining whether in any situation the right to vote has been abridged. The Constitution outlaws any electoral scheme which is “used invidiously to cancel out or minimize the voting strength of racial groups,” and Section 5 bars approval of any scheme which will have that effect. Dilution — a species of abridgment — of the right to vote is necessarily gauged by the difference between the value — the weight — which the vote should have and the value which in the particular circumstances it really has. In determining the impact of a redistricting plan upon the voting capability of a racial minority, the relevant comparison is between the results which the minority is constitutionally free to command and the results which the plan leaves, the minority able to achieve. A substantial difference between the two, not justified by a compelling governmental interest, is unconstitutionally enervating. Moreover, a plan which unjustifiably curtails the voting power of one racial group more severely than the power of another similarly situated group is patently discriminatory. The value to which the New Orleans black vote is legally entitled is “a theoretical optimum designed to give fair representation to both minority and majority groups in the City”; and the test of the plan proposed for New Orleans is whether on the one hand it indulges or on the other hand forecloses the opportunity for that brand of representation. When we apply these standards to the case at bar, we can conclude only that Plan II will necessarily dilute the right of black citizens to vote in councilmanic elections held thereunder in New Orleans. We find that the inexorable consequence of the plan will be a drastic reduction in the voting strength of the black minority in such elections. We are brought to that finding irrespective of whether, for purposes of decision, we assess black voting strength in New Orleans at the level of black voter registration or on the basis of black population, or whether from either viewpoint we examine the plan simply in light of the extrinsic requirement of at-large elections for two seats. As this opinion reflects, we have approached the problem from each of these three directions, and in each instance we have reached the same result. VI. DILUTION OF PRESENT BLACK VOTING STRENGTH A. The Facts Taking the power of the black vote in New Orleans merely for what it now is, as distinguished from what if historically unsuppressed the black vote actually should be, it may nonetheless be readily discerned that the City’s redistricting plan would diminish markedly the potency of that vote in council-manic elections. Based upon voter registration, black voting strength is 34.5% of total voting strength in New Orleans. With seven members to be nominated or elected at councilmanic elections, the power of the black vote is theoretically equivalent to 2.42 seats on the Council. While the measurement of group voting strength and of its dilution is a matter of comparing potentials, the practice of bloc voting along racial lines which so frequently pervades elections in New Orleans would expectably bring the black and white voting potentials fairly close to reality. Under redistrieting Plan II, however, the strength of the black vote would be much lower than its 34.5% potential. This becomes apparent when the plan is viewed, as it must be, in the whole of the context in which it would operate. Two members of the Council would be elected from the city at large, and each of the others from one of the five councilmanie districts. Nominations of candidates for councilmanic office at primary elections would require majority vote, and singleshot voting would be taboo. With black voting power at 34.5% of total voting power, black citizens in New Orleans are a distinct minority on a citywide basis. Under Plan II, they are also the minority in four of the five councilmanic districts, wherein black registered voters are confined to a range of 22.6% to 43.2% of the district totals. Only in District B, where they would reach 52.6%, is black voting strength theoretically self-sufficient to elect a candidate and, the thinness of the margin considered, only doubtfully so. Thus analyzed, Plan II, operating conjunctively with existent features of the New Orleans scheme for the election of councilmen, would limit the capability of the black vote to but one of the seven seats on the' Council. This contrasts sharply with the black vote’s theoretical equivalent of 2.42 seats, and with the artificial gain of the white vote to 6.00 seats from its theoretical equivalent of 4.58 seats. These deviations are the consequence of fragmentation of the black vote for the five district seats and its compartmentation in districts so constructed that it attains a majority status in only one, in cooperation with the phenomena of at-large elections for the two remaining seats, and majority- and multiple-vote prerequisites to candidacy for any seat. It cannot be doubted that the reduction in the strength of the black vote from its natural potential of 2.42 seats to an actual equivalent of a dubious one seat is a dilution in every sense of the word. Nor can it be gainsaid that Plan II would lay a much heavier hand upon New Orleans’ black minority than upon its white majority We wish to make it plain that the question before us is not whether New Orleans must confer upon its black citizens every political advantage that a redistricting plan conceivably could offer. We agree that “a minority group is not constitutionally entitled to an apportionment structure designed to maximize its political advantage,” nor “to one or more ‘safe’ or majority districts simply because an apportionment scheme could be drawn to reach this result.” But just as surely, “neither may [the group] be enveloped in a structure which will necessarily minimize its potential for meaningful access to the political process.” The Government and the intervenors, as they should, press vigorously on behalf of black voters for all that is their due, but they ask for no more. B. The Justifications Proffered The City urges a variety of considerations as legitimate local interests justifying the scheme incorporated into Plan II despite the damage it will inflict on the black vote. The justifications the City proffers are subsumed in a group of guidelines within which the research staff undertook the development of the several redistricting concepts which from time to time were submitted to the City Council. For purposes of restatement, we adopt the City’s listing, which accurately summarizes the evidence on that score. The redistrieting should be accomplished without diluting the voting rights of any minority group within the city. The object of the redistricting should be achievement, as nearly as possible, of a mathematical balance of population within each of the five councilmanic districts in order to insure compliance with the “one man, one vote” edict. Whenever possible, existing ward and precinct boundaries should be left undisturbed by district boundaries, and historic and traditional district boundaries should be observed in an effort to preserve continuity within the electorate. Natural boundaries created by the Mississippi River and Lake Pontchartrain, and the economic and social effect of the river and lake on the city, should be considered, as well as man-made boundaries existing in the form of important streets and canals, a majority of which run in a north-south direction. Prospective councilmanic districts should be contiguous and compact. Since the redistricting activity in New Orleans sought a nearly equal population balance within the councilmanic districts, the local concerns reflected by the guidelines paralleled factors which have endured exposure in state legislative apportionment cases. While population is the controlling criterion for judgment in controversies of that type, mathematical exactness in redistricting is an impractical goal and small departures from a mathematically precise “one man, one vote” standard may be indulged. “So long as the divergences from a strict population standard are based on legitimate considerations incident to the effectuation of a rational state policy,” the Supreme Court has said, “some deviations from the equal-population principle are constitutionally permissible.” But the validity of the apportionment depends upon “faithful adherence to a plan of population-based representation,” and the departures allowable are “such minor deviations only as may occur in recognizing certain factors which are free from any taint of arbitrariness or discrimination.” We do not underestimate the complexity of the difficulty of redistricting a large metropolitan area, nor do we denigrate the recognition in a reapportionment plan of legitimate local interests within the narrow range legally allowed. The evidence in this case, however, tends to weaken the group of interests which the City advances. The guidelines utilized by the staff were never deemed an absolute code, but rather a flexible mold-enabling innovation and change. Examples of variations which the guidelines indulged are the various concepts submitted by the staff, the contrasting treatments of Algiers, the occasional splitting of wards and precincts, and the free interchange of geographical phenomena. The evidence indicates that the Council’s second plan — the plan now under investigation — may have been as much the handiwork of councilmen as of the staff, with resultant uncertainty as to the extent that allegiance to the staff’s guidelines was maintained. The evidence also discloses wide differences of opinion among the councilmen as to the relative priority and weight which the factors incorporated into the guidelines should be assigned. And, quite importantly, in some respects some of the factors may legally be open to question. We need not engage in a detailed discussion along these lines, however, because in any event the City’s attempt at justification falls far short of the mark. “[A]ll legal restrictions which curtail the civil rights of á single racial group are immediately suspect,” we are reminded, and “courts must subject them to the most rigid scrutiny.” Beyond that, the right to vote is “a fundamental political right, . . . preservative of all rights,” and “before that right can be restricted, the purpose of the restriction and the assertedly overriding interests served by it must meet close constitutional scrutiny.” Dilutions of the right to vote which are to be tested by the equal protection standard — which involves a balancing of competing governmental and private interests — may withstand analysis upon a firm showing that they are rationally related to a permissible governmental interest. But, the Supreme Court admonishes, “a more exacting test is required for any [governmental action] that ‘place[s] a condition on the exercise of the right to vote.’ ” In pursuing even the most substantial of its interests, government “cannot choose means which unnecessarily burden or restrict constitutionally protected activity.” So, “if a challenged statute grants the right to vote to some citizens and denies the franchise to others, ‘the Court must determine whether the exclusions are necessary to promote a compelling state interest.’ ” “And if there are other, reasonable ways to achieve [its] goals with a lesser burden on constitutionally protected activity, a State may not choose the way of greater interference”; rather, “[i]f it acts at all, it must choose ‘less drastic means’.” We have no doubt whatever that in light of the strictures of the Fifteenth Amendment, the standard which justifications of denials of voting rights must meet applies equally to dilutions of those rights. Nor do we doubt that Section 5 of the Voting Rights Act accommodates any less than the Fifteenth Amendment demands. The question, then, is whether the City has satisfied the high standard of justification. We think it clear that the question must be answered in the negative. As the Supreme Court has recently stated, “[i]t is well established that in a declaratory judgment action under § 5, the plaintiff State has the burden of proof.” The Court explained: The very effect of § 5 was to shift the burden of proof with respect to racial discrimination in voting. Rather than requiring affected parties to bring suit to challenge every changed voting practice, States subject to § 5 were required to obtain prior clearance before proposed changes could be put into effect. The burden of proof is on “the areas seeking relief.” Even were we to assume that the justifications the City presses could ever override the right of its black citizens to cast meaningful votes — a question we in no wise undertake to now decide — the burden in the case at bar was at least to demonstrate that nothing but the redistricting proposed by Plan II was feasible. The City has not made that sort of demonstration; indeed, it was conceded at trial that neither that plan nor any of its variations was the City’s sole available alternative. Moreover, it is clear enough to us that the interests which the City asserts here cannot justify a black voting-strength dilution of the magnitude which the plan forebodes. The reduction here, we repeat, is from 2.42 of seven seats at least to a single seat, and perhaps even to no seat at all. That is a curtailment of the black vote to considerably less than half of its potential, if indeed not a complete negation of its potential. The Equal Protection Clause tolerates some limited accommodation of governmental interests at the expense of very minor dilution of the vote, but certainly nothing on the scale indicated here. Surely the Fifteenth Amendment, which flatly enjoins all governments from denying or abridging the right to vote on account of race or color, discountenances the abridgment evident in this case. VII. DILUTION OF POTENTIAL BLACK VOTING STRENGTH A. The Question We turn now to analyze New Orleans’ redistricting Plan II from a somewhat different viewpoint. The inquiry here will be whether the plan will operate “invidiously to cancel out or minimize the voting strength of [the] racial group []” which the black citizens of the city comprise. We find that the plan will indeed have that effect. In the previous section of this opinion, we saw that the proposed redistricting, in combination with other forces inhering in the processes by which councilmen are nominated and elected in New Orleans, will cut the strength of the city’s black vote down to a point far below its present 34.5% potential as reflected by black voter registration. Black population, however, is 45.0% of the city’s total population, and the theoretical entitlement of black population of that size on a seven-member elected body is 3.15 seats. We have seen, however, that if the redistricting plan before us takes its place in the electorial scheme, it will indulge the black vote a theoretical equivalent of but one councilmanic seat, and in a practical sense by only a narrow margin at that. Moreover, even if black voting power