Full opinion text
COLEMAN, Circuit Judge. The sole issue in this case is whether House Bill 1290 and Senate Bill 2976 of the Acts of the Mississippi Legislature, Regular Session of 1975, approved by the Governor on April 7 and April 8, have reapportioned the State Legislature in conformity with the Constitution of the United States. The attack on the validity of these Acts is divided into two parts: (1) The apportionment does not comply with the one person-one vote rule; (2) The apportionment resulted in an unconstitutional dilution of the black vote for selection of the Legislature. Since the qualifying deadline for candidates for the Legislature is June 5, 1975, the Court has proceeded to hear and determine the matter as expeditiously as possible, considering the intervention of the Judicial Conference of the Fifth Circuit, April 28-May 1, 1975, which the members of this Court were required by law to attend. A hearing was held in Jackson on May 7. Briefs have been received and considered. We now decide the case. Except for the election of Representatives from Harrison County, to be hereinafter discussed, we find no constitutional infirmity. Other than as to Harrison County, the complaint will be dismissed. The History of this Litigation This three-judge District Court, composed of the same Judges, has been occupied with the reapportionment of the Mississippi Legislature since October 19, 1965, Connor v. Johnson, 256 F.Supp. 962 (S.D.Miss., 1966). On July 22, 1966, we invalidated the apportionment of the Mississippi Legislature as it then existed, Connor v. Johnson, supra. The regular quadrennial primary elections were scheduled for August, 1967. We delayed court ordered redistricting so as to give the Mississippi Legislature until December 1, 1966 in which to enact a reapportionment plan of its own. The Legislature was unable to agree on reapportionment in any form. On March 3, 1967, we found it necessary to enter a decree reapportioning the Senate and the House of Representatives of the State of Mississippi in accordance with the one person-one vote rule, 265 F.Supp. 492 (S.D.Miss., 1967). There was no appeal. These proceedings were grounded on the United States Census of 1960. There was no further action until the 1971 Legislature (elected in 1967) set about the enactment of a reapportionment based on the 1970 Census. On May 18, 1971, we held that the 1971 legislative reapportionment did not comply with the one person-one vote rule. The 1971 quadrennial elections being imminent, we formulated a court ordered plan of reapportionment, Connor v. Johnson, 330 F.Supp. 506. The population figures, norms and variances, are there set forth in detail. On June 3, 1971 (Mr. Chief Justice Burger, Mr. Justice Black, and Mr. Justice Harlan dissenting), the Supreme Court stayed our decree until June 14. We were instructed, absent insurmountable difficulties, to devise and put into effect a single-member district plan for Hinds County and to extend the filing date for legislative candidates from that county to an appropriate date. In addition to the stay, the Supreme Court held that a decree of the United States District Court is not within reach of Section 5 of the Voting Rights Act. The decision on this point was unanimous, Con-nor v. Johnson, 402 U.S. 690, 91 S.Ct. 1760, 29 L.Ed.2d 268. On June 16, D.C.Miss., 330 F.Supp. 521, we found that there were insurmountable difficulties to the division of Hinds County into single-member districts. The Supreme Court declined to interfere with this finding. The 1971 legislative elections were held on schedule in accordance with the decree of May 14, 1971. On January 24, 1972, the Supreme Court declined to invalidate that election, Connor v. Williams, 404 U.S. 549, 92 S.Ct. 656, 30 L.Ed.2d 704. However, the Court vacated our prior decree in order that a special master could be appointed to devise single-member districts for Hinds, Harrison, and Jackson Counties, saying “If we are to consider the applicability of Preisler and Wells to state legislative districts, it would be preferable to have before us a final judgment with respect to the entire State. To accomplish this result and to preserve the right to appeal from such a judgment, the judgment of the District Court is vacated . and the case is remanded to the District Court for further proceedings consistent with this opinion”. Significantly, however, the Supreme Court noted, 92 S.Ct. 658, fn. 4, the possibility “That the state legislature will adopt a plan of its own”. It further said, “This Court has frequently emphasized that ‘legislative reapportionment is primarily a matter for legislative consideration and determination, and . . . judicial relief becomes appropriate only when the Legislature fails to reapportion according to federal constitutional requisites in a timely fashion after having had an adequate opportunity to do so’ ”. The outcome of all this was that the 1973 session of the Legislature enacted Chapters 456 and 457 of the Laws of 1973, approved April 6, 1973 [House Bill 1389; Senate Bill 2452], reapportioning the Legislature in anticipation of the 1975 elections. On April 19, 1973, plaintiffs, being dissatisfied with the 1973 Acts, filed their objections in this Court. In the midst of the well known burdens imposed upon and shouldered by three-judge Courts in numerous such cases filed in Mississippi, having waited also for the completion of a judicial reapportionment of Hinds County then in progress, we reconvened on February 7, 1975, to consider the constitutionality of the 1973 legislation. The Mississippi Legislature was then in session and several of its members attended the hearing. They heard the various objections raised. Some of them testified. They heard the discussion of what the Supreme Court, two weeks previously, had decided in Chapman v. Meier, 420 U.S. 1, 95 S.Ct. 751, 42 L.Ed.2d 766 (1975). Among other things, some of which will be mentioned later in this opinion, the Supreme Court said : “We say once again what has been said on many occasions: reapportionment is primarily the duty and responsibility of the State through its Legislature or other body, rather than of a federal court (citations omitted). Hopefully, the 1975 North Dakota Legislative Assembly will perform that duty and enact a constitutionally acceptable plan. If it fails in that task, the responsibility falls on the District Court and it should proceed with dispatch to resolve this seemingly interminable problem.” Immediately after the hearing of February 7, it became public knowledge that, the Legislature had initiated another effort to reapportion its membership. Heeding the teachings of Meier, we delayed a decision on the 1973 Acts to see if they were to be replaced by a 1975 enactment. The Legislature did enact Senate Bill 2976 of the Acts of the Regular Session of 1975, reapportioning the State Senate, and House Bill 1290 of the same Session, reapportioning the House of Representatives. These bills were approved by the Governor on April 7 and 8. As we saw it, this mooted prior proceedings before this Court. On April 10, 1975, we dismissed finally all prior proceedings without prejudice. We directed the plaintiffs to file, within five days, an amended complaint, directed to the 1975 Reapportionment Acts. The defendants were required to answer within five days thereafter. We thus began with a fresh record, shorn of the papers accumulated during the previous ten years, facilitating a resolution of the issues pertinent to the 1975 enactments, and likewise facilitating Supreme Court review, which was sure to follow. The Law (1) One Person-One Vote The appropriate standards of the one person-one vote rule applicable to state legislative reapportionment are no longer open to speculation or substantial doubt. In this connection, the 1973 Spring Term of the Supreme Court began a new era for the courts and for state legislators. See, Albany Law Review, Volume 38, Page 798 (1974). On February 21, 1973, the Court handed down Mahan v. Howell, 410 U.S. 315, 93 S.Ct. 979, 35 L.Ed.2d 320. It held that a reapportionment statute maintaining the integrity of traditional county and city boundaries in Virginia while reapportioning legislative districts in a manner resulting in a percentage variation of 16.4 percent from the ideal district, with an average percentage variation of ± 3.89 percent, and providing for a combination of 52 single-member, multimember and floater delegate districts from which 100 delegates would be elected did not violate the Equal Protection Clause of the Fourteenth Amendment. It let stand multimember districts in Fairfax County, each for the election of five legislators. In Mahan, the Supreme Court taught us that the constitutional validity of the reapportionment and redistricting of state legislative bodies (when done by the Legislature) is to be determined by the application of an “as nearly as practicable” equal protection test, not by a stringent population test. It was further held that the policy of preserving political boundaries is rational, that a rational state policy may justify deviations from the population requirements otherwise required by the Equal Protection Clause, and that a 16.4 percent maximum deviation from population equality may have approached but did not exceed tolerable limits. The Court warned, of course, that the goal of substantial population equality may not be emasculated. Then, on June 18, 1973, the Supreme Court decided Gaffney v. Cummings, 412 U.S. 735, 93 S.Ct. 2321, 37 L.Ed.2d 298. The Connecticut Legislature could not agree on a plan of reapportionment; neither could an eight member bipartisan commission. No plan emerged until after the matter was submitted to another commission composed of state court judges, which approved a plan only by a majority vote. The results were challenged, one of the complaints being that the plan amounted to a political gerrymander. A three-judge district court invalidated the plan. The Supreme Court reversed. The Gaffney Court told us that only those limited population variances may be permitted for which justification is shown or which are unavoidable despite a good faith effort to achieve absolute equality. We were further told that an acceptable plan may not be invalidated simply because another plan could be conceived with lower deviations among the state’s legislative districts, 412 U.S. at 741, 93 S.Ct. 2321. The test for districts in state reapportionment is that they must be “as nearly equal as practicable”. (Emphasis added) Divergencies from a strict population standard may be based ■ on legitimate considerations incident to the effectuation of a rational state policy. Population deviations large enough to require justification may nevertheless be justifiable and legally sustainable. It was said: “Nor is the goal of fair and effective representation furthered by making the standards of reappropriationment so difficult to satisfy that the reapportionment task is reeurringly removed from legislative hands and performed by federal courts which themselves must make the political decisions necessary to formulate a plan or accept those made by reapportionment plaintiffs who may have wholly different goals from those embodied in the official plan.....We doubt that the Fourteenth Amendment requires repeated displacement of otherwise appropriate state decision-making in the name of essentially minor deviations from perfect census-population equality that no one, with confidence, can say will deprive any person of fair and effective representation in his state legislature. “That the Court was not deterred by the hazards of the political thicket when it undertook to adjudicate the reapportionment cases does not mean that it should become bogged down in a vast, intractable apportionment slough, particularly when there is little, if anything, to be accomplished by doing so. “. . . . Was the Master compelled, as a federal constitutional matter, to come up with a plan with smaller variations than were contained in appellees’ plans? And what is to happen to the Master’s plan if a resourceful mind hits upon a plan bétter than the Master’s by a fraction of a percentage point? Involvements like this must end at some point, but that point constantly recedes if those who litigate need only produce a plan that is marginally ‘better’ when measured against a rigid and unyielding population-equality standard. “The point is, that such involvements should never begin. We have repeatedly recognized that state reapportionment is the task of local legislatures or of those organs of state government selected to perform it. Their work should not be invalidated under the Equal Protection Clause when only minor population variations among districts are proved. . . .” In cases raising the issue of imper- ■ missible population deviations in state legislative reapportionment, “each case must be evaluated on its own facts, and a particular population deviation from the ideal may be permissible in some cases but not in others”, Chapman' v. Meier, 95 S.Ct. at 763 (1975). (2) Dilution of the Black Vote On'this subject we discuss first White v. Regester, 412 U.S. 755, 93 S.Ct. 2332, 37 L.Ed.2d 314 (1973). In that case, multimember districts in Bexar and Dallas Counties were invalidated because the three-judge district court had found enhanced opportunities for racial discrimination. The ruling clique in Dallas County did not need the support of the black community to win elections, had not exhibited good faith concern for the political and other needs and aspirations of the black community, racial campaign tactics had been used in white precincts to defeat candidates who had the overwhelming support of the black community, the black community had been effectively excluded from participation in the Democratic primary selection process, and was generally not permitted to enter the political process in a reliable and meaningful manner. As to Bexar County, the three-judge district court found that the Mexican-American populace of Bexar “had long suffered from, and continues to suffer from, the results and effects of invidious discrimination and treatment in the fields of education, employment, economies, health, politics and others”. Seventy eight percent of the Mexiean-American community, amounting to 29 percent of the population of the County, resided in the Barrio, suffered from cultural and language barriers that made their participation in community processes extremely difficult. Mexican-American registration was “very poor”. The Bexar County legislative delegation in the House was insufficiently responsive to Mexican-American interests. The District Court found that the Bexar County Mexican-Americans “are effectively removed from the political processes of Bexar County”. The Supreme Court was not inclined to overturn this “intensely local appraisal”. It did say, however, that the fact that a racial group has not had legislative representation is not enough to establish invidious discrimination. In Gaffney v. Cummings, supra, it was pointed out that “multimember districts may be vulnerable, if racial or political groups have been fenced out of the political process and their voting strength invidiously minimized”. On the other hand, there is no duty to deliberately draw lines so as to insure the election of members of sizable racial, ethnic, economic or religious groups, Whitcomb v. Chavis, 403 U.S. 124, 91 S.Ct. 1858, 1875-1878, 29 L.Ed. 2d 363 (1971). A minority group is not constitutionally entitled to an apportionment structure designed to maximize its political advantage, Turner v. Mc-Keithen, 5 Cir., 1973, 490 F.2d 191, 197. Under that rule, a minority group is not entitled to another redistricting so that a majority of the voters in at least one district of a county would be black, Gilbert v. Sterrett, 5 Cir., 1975, 509 F.2d 1389. When is a group fenced out? What constitutes a fence ? What is dilution made of? The Fifth Circuit answered these questions in Bradas v. Rapides Parish Police Jury, 5 Cir., 1975, 508 F.2d 1109, rehearing en banc denied, 510 F.2d 1407 (1975). In Louisiana the police jury is essentially a parish legislature, 508 F.2d at 1110, fn. 4. A ward is the basic territorial subdivision of the parish. Rapides had eleven wards. No black had ever been elected to serve on either the police jury or the school board. We quote from the opinion, 508 F.2d at 1112: Consideration of the evidence below in the light of these factors emphasizes the dearth of appellees’ proof. Neither the record nor the district court’s findings indicates difficulty on behalf of blacks in registering to vote, in choosing the political party they desire to support, in meaningfully participating in.party activities, in qualifying as candidates for a desired office, in participating in the candidate selection process, or in participating meaningfully in any other portion of the political process. The record does not evidence a state policy favoring multi-member districts that is rooted in racial discrimination, nor does it indicate a lack of responsiveness on behalf of elected officials to the particular concerns of the black community. The single glaring fact that no black has ever been elected to a parish office does not by itself support judicial nullification of a reapportionment plan. It evidences no more at the most than a policy of past discrimination. But the issue here of course is not whether Rapides Parish discriminated against blacks in the past, but rather whether any debilitating effects of that discrimination still persist. See Zimmer, supra, 485 F.2d at 1306. In previous cases such debilitating effects have usually been shown by a relatively large discrepancy between the size of the black population and the number of registered black voters, Zimmer, supra, 485 F.2d at 1306, or between the number of blacks registered to vote in federal elections and the number of blacks registered to vote in state elections. Turner, supra, 490 F. 2d at 195. A finding of continuing effects of past discrimination is not supported by any evidence in this record- Likewise it does not suffice to show that the use of multi-member districts has diminished to some extent the proportion of blacks in the voting unit unless some evidence also demonstrates that such multi-member districts were “conceived or operated as purposeful devices to further racial or economic discrimination.” Whitcomb v. Chavis, 1971, 403 U.S. 124, 149, 91 S.Ct. 1858, 1872, 29 L.Ed.2d 363. To the same extent that the black proportional strength in Ward 1 is decreased by “tacking on” the substantially white Ward 8, the proportional strength of the blacks in Ward 8 has increased. While we have previously recognized that “such increases or decreases in proportional strength resulting from the change from one apportionment system to another may in some cases provide significant evidence of (discriminatory) motive or effect,” Turner, supra, 490 F.2d at 196, the 5% decrease involved before us does not assume compelling significance. “In Howard v. Adams County Board of Supervisors (5 Cir. 1972, 453 F.2d 455, 457) this court stated that to establish the existence of a constitutionally impermissible redistricting plan, plaintiffs must maintain the burden of showing either first, a racially motivated gerrymander, or a plan drawn along racial lines, or second, that ‘. . . designedly or otherwise, a(n) . . . apportionment scheme, under the circumstances of a particular case, would operate to minimize or cancel out the voting strength of racial or political elements of the voting population.’ ” Zimmer, supra, 485 F.2d at 1304. Legislative History of the Acts and Findings Thereasto Senate Floor debates in the Mississippi Legislature are not stenographically reported or mechanically recorded. As to the legislation now under consideration, however, we do have the committee reports and the recitations of the bills. Senate Bill No. 2976 recites that the Legislature recognizes its primary responsibility “as recently emphasized by the Supreme Court in Chapman v. Meier” and that it is aware of the guidelines prescribed in Mahan v. Howell. The Bill further recites that “from the attainment of statehood in 1817, Mississippi has structured the apportionment of its Legislature on county lines, there being no instances of the election of Senators from a district smaller than a county. No district has ever been established by combining parts of one (1) county with portions of others because the county is the basic, traditional governmental unit upon which the state is organized and through which such primary functions as courts, elections and taxation have been conducted”. From the Mississippi Constitutions of 1817, 1832, 1869 and 1890, this Court takes judicial notice that this legislative statement is literally true. Prior to the enactment of the Bill a Report of the Senate Committee on Elections, entitled “Legislative History and Statement of Intent” was adopted by the Senate by a vote of 51 to 1. This report listed the decisions of the United States Supreme Court and of this three-judge court dealing with legislative reapportionment. The Committee had also studied reapportionment proposals submitted by Mayor Charles Evers, well known black leader and candidate for governor in 1971. Additionally, it had studied the plan submitted by the plaintiffs to this Court. The following excerpt from the Committee Report is of significance: “The committee, in its earliest deliberations, considering the manner in which counties are structured and governed in Mississippi and the need to quite frequently pass legislation dealing only with particular counties, determined that the policy of maintaining the integrity of county lines in establishing legislative districts should be continued. “It might be pointed out that county lines have remained unchanged with only a few exceptions since 1890, and that the Legislature and courts, since the Constitution of 1890, have recognized the integrity of county lines in establishing legislative districts.” Mayor Evers appeared before the Committee and concurred that the integrity of county lines should be maintained. The Committee then proceeded to say: “The committee, desiring to respect county lines, nevertheless is aware and recognizes that it is under a constitutional duty to ‘make an honest and good faith effort to construct legislative districts in both Houses of its Legislature as nearly equal in population as is practicable’, Mahan v. Howell, supra. This we have done our very best to do. We have also sought to reduce multimember districts as much as possible, still giving effect to the one-person, one-vote requirement of the United States Constitution, and attempted to continue the policy of this state to maintain the integrity of political subdivision lines in the reapportionment of legislative seats. We have sought to produce a minimum deviation above and below the norm, keeping political boundaries intact. “Since the county is such a basic unit of government in Mississippi, and since so much legislation is passed by the Legislature which directly affects the individual county as a whole and so much legislation is passed which directly affects each and every county in the state as a whole, and since very seldom is legislation passed affecting only parts of a county, and since 10 of the 12 Representatives from Hinds County are to be elected by beats and only 2 Representatives from Hinds County are to be elected at large, the committee has determined that the 5 Senators from Hinds County should be elected at large. To require that the Senators from Hinds County be elected by and from beats of the county would mean that not a single Senator from Hinds County would be elected to represent Hinds County as a whole. The United States Supreme Court in Mar han v. Howell, supra, approved two five-member senatorial districts established by the Legislature in Virginia. It is the sense of this committee that, in the event Hinds County should ever elect more than 5 Senators, a different policy should prevail.” The Committee Report then discusses, at length, proposals advanced by Mayor Charles Evers for the enhancement of black voting strength. It was found that the maximum population deviation in the Evers plan was 47.2 percent and the Committee felt that the Courts would disapprove such a plan. The Committee then further reported, as follows: “The committee also considered a proposal for reapportionment which was presented to the United States District Court by the plaintiffs in the action currently pending before that court styled Connor v. Waller. “This proposal admittedly achieves a greater mathematical exactness than does the proposal reported by the committee in Senate Bill 2976, but the committee feels that the final product of the plaintiff’s proposal is impracticable and unworkable. In the plaintiffs proposal, the maximum deviation above the norm is 1.66% found in District 18 composed of Clay County and part of Oktibbeha County. The maximum deviation below the norm is 1.73% found in District 52 composed of a part of Jackson County. The total variance therefore is only 3.39% from the maximum negative deviation of 1.73% to the maximum positive deviation of 1.66% a figure which the committee would be pleased to approve if the apportionment structure which yields that low variance were otherwise practicable. “The plaintiffs proposal initiates a new reapportionment procedure for Mississippi — the division of counties and even of beats within counties for the purpose of establishing legislative districts. A review of the plaintiff’s proposal indicates that 40 of the 52 districts or 77% of the districts created by the plaintiffs cross county lines and that 46, or 89%, of the new districts cross supervisor’s beat lines within the county in creating the districts. Only 4 proposed districts, Districts 1, 12, 21 and 22 are composed of counties which are not divided or are composed of a subdivision of a county. “The plaintiff’s proposal was not approved by the committee because the committee did not want to abrogate the historical state policy of creating Senate districts coinciding with county lines, because the committee did not want to abridge the traditional power of local government to establish voting precincts and because the committee did not want to create unnecessary confusion and impose an unwarranted hardship upon voters and election officials by structuring voting precincts on enumeration districts which are subject to frequent change.” The Committee then described its reapportionment plan, concluding that it had an average precentage variance of 6.12 percent, the average deviation above the norm being 6.45 percent and the average deviation below the norm being 5.63 percent. No district varies from the norm by as much as 10 percent, and sixteen of the thirty three districts vary by less than 5 percent. Findings on the Senate Plan The plaintiffs having offered no credible evidence to the contrary, we find as a fact that the Senate, as advised by its Committee, was aware of the one person-one vote reapportionment standards mandated by the Constitution of the United States, that it made an honest effort in good faith to comply with those standards and that, in fact, it complied with those standards. The matter of racial dilution is reserved for discussion in a later portion of this opinion. House of Representatives The report of the House Committee on apportionment and elections on House Bill No. 1290 is ten typewritten pages in length, legal size. It is too lengthy for inclusion in this opinion in toto. This Court has closely studied the Committee Report. As to all pertinent factors, there is no substantial distinction between it and the Senate Committee Report, except that Mayor Evers is not reported to have appeared before the House Committee, although he may have done so. Interestingly enough, after its study, the House Committee recommended, with three exceptions, exactly the same alignment of districts, numbered the same, composed of the same counties, as directed by this Court in its decrees of May 18 and May 21,1971, D.C.Miss., 330 F.Supp. beginning at Page 509. Recognizing the particular circumstances in Hinds, Harrison, and Jackson Counties, the Legislature made different provisions for the election of Representatives from those Counties. HINDS COUNTY As to Hinds County (District 31, composed of 12 Representatives), it is directed that 2 Representatives shall be elected from the County-at-Large and 2 Representatives shall be residents of and be elected from each of the five Supervisors Districts of that County. It was further directed that the election by beats should be from the beats as established by the judgment of the United States District Court for the Southern District of Mississippi reapportioning the Supervisors Districts of said County in the case of Kirksey v. The Board of Supervisors of Hinds County, Civil Action No. 4939. We take judicial notice that on April 24, 1975, the said United States District Court did reapportion the Supervisors Districts in said County so that the population of the five beats will be, respectively, as follows: District 1, 42,948 District 2, 43,061 District 3, 43,199 District 4, 43,010 District 5, 42,755 The maximum population deviation in this plan is 1.04 percent. Two of the Districts, electing four Representatives, are black majority Districts. We entertain not the slightest doubt that the procedure devised for Hinds County substantially complies with one person-one vote standards. HARRISON COUNTY Prior to 1962, under the outmoded legislative reapportionment formula cemented into the Constitution of 1890, Harrison County had only one Representative and participated in the election of a Floater Representative. Subsequent to Baker v. Carr, the County has been entitled to seven Representatives. Under the reapportionment plan ordered by the Court in 1971, the seven Representatives from Harrison County were elected by county wide vote. House Bill No. 1290 of the Acts of 1975 recognizes that the United States District Court has acquired jurisdiction over the reapportionment of Harrison County for the election of Supervisors, that is, for the division of the County into five districts of substantially equal population. The Legislature directed that should said districts be determined by decision of the United States District Court prior to June 6, 1975, then one Representative should be elected from each of the five districts and two Representatives should be elected by the county at large. This Court takes judicial notice of the fact that on May 16, 1975, in the case, Civil No. 3146, Southern Division of the United States District Court for the Southern District of Mississippi, styled William D. G. Skellie and Eugene J. Niolet v. Ernest C. Melvin, the defendant Board of Supervisors of Harrison County was given until May 21,1975, in which to file with said Court a plan dividing Harrison County into five districts in compliance with the one person-one vote rule. According to the 1970 Census, the population of the five supervisors districts of Harrison County was as follows: District 1, 23,151 District 2, 31,480 District 3, 17,276 District 4, 21,082 District 5, 41,593 This Census, however, was taken at the height of the population displacement caused by Hurricane Camille in August, 1969. If the population today were distributed as reflected by the Census of 1970, said districts would be seriously malapportioned. Presumably, the redistricting plan which must be filed on or before May 21, will reflect population distribution as it now exists. No doubt the Legislature was impressed by the fact that in 1971 the Supreme Court had looked with a skeptical eye upon electing seven Representatives from Harrison County at large. The Legislature certainly knew that prior to the enactment of the 1973 Act, now repealed, this Court had expected to appoint a special master to divide the County into seven single member districts. By a prior order in the Harrison County redistricting case, the District Court had deferred action because of the disruption caused by Hurricane Camille. There is no reason, as of the present, to assume or presume that the District Court will falter in its intention to speedily redistrict the County as indicated by its order of May 16. If there should be a failure, we direct the Attorney General of Mississippi, who is a party defendant, to move forthwith to intervene in the Harrison County reapportionment case on behalf of the people of Mississippi, who are entitled to a fairly apportioned Legislature, and to pursue with diligence the efforts to have the County properly reapportioned. We further direct that when such reapportionment shall have been accomplished, as a finality, the Attorney General shall forthwith apply to this Court for its judgment as to whether or not a special election shall then be called to elect Representatives from the properly apportioned Supervisors Districts. If the reapportionment is completed by the filing deadline of June 5, 1975, then the necessity for special elections will have been mooted. The District Judge to whom the Harrison County case is assigned will, we believe, move with celerity, for he has only recently completed the most difficult task of reapportioning Hinds County, the most populous and one of the largest in land area in the State. JACKSON COUNTY Jackson County, population 87,975, is, of necessity, combined in District 46 with George County, population 12,459. Jackson is bounded on the South by Mississippi Sound and on the East by Alabama. George County is bounded on the East by Alabama. It has only one third of the people required for the election of a Representative. The Legislature sought to avoid having George totally disenfranchised by requiring that one of the Representatives elected from the District should be a resident of that County. The Act further provided that the remaining five Representatives from District 46 should reside, respectively, in one of each of the five Supervisors Districts of Jackson County but should be elected by the district at large, that is by both George and Jackson Counties. This plan is, we think, subject to criticism. It provides for at large elections of six Representatives, which is one more than the number approved by the Supreme Court in Fairfax County, Virginia. If, however, the five Representatives residing in Jackson County are elected one from each Supervisors District, then Jackson County would be denied all county wide representation in the Mississippi Legislature, a result hardly to be desired since the County is the most heavily industrialized of any in the State, has a highly mobile population, and conflicting interests represented, for example, by industry on one hand and fishing and recreational interests on the other. The arrangement here may be a Solomonic one, but it appears to be the best that can be done under the circumstances. We know of no better remedy. It must be noted that on February 18, 1970, in the case of E. B. Sígalas v. Lum. R. Cumbest, Et Al., C.A. 3239, not appealed, the United States District Court for the Southern Division of the Southern District of Mississippi reapportioned Jackson County into five districts of substantially equal voting population, as follows: District 1, 5890 District 2, 5625 District 3, 5906 District 4, 5925 District 5, 5683 With one Representative residing in each of these districts it hardly appears that the interests of the people in any beat would be ignored and county wide participation in their election will eliminate prejudice to any part of the County. Since the reapportionment process for the State as a whole ran out of cloth at this point, we decline to hold that this arrangement violates the one person-one vote rule. Each case must be decided on its own facts, Chapman v. Meier, supra. Population Ratios for the House of Representatives from the State as a Whole The apportionment plan for the House of Representatives has an average percentage variance of 9.99 percent, with the average deviation above the norm being 4.45 percent, the average below the norm 5.54 percent, and no district varies above or below by as much as 10 percent. Twenty one of the districts vary by less than 5 percent. We have taken a look at the maximum variations which are in excess of the deviation approved in Mahan v. Howell. District 3, DeSoto and Marshall Counties, is 9.9 percent above the norm and District 18, Grenada and Montgomery, near the center of the State, is below the norm by 9.8 percent, for a maximum deviation of 19.7 percent. We take note of the fact that Marshall County, bordering Tennessee, is 30 percent above the population norm for one Representative and must be combined somewhere if 5856 of its citizens are not to be left out of the equation. On the other hand, DeSoto County, the northern border of which is twelve miles from downtown Memphis, is the fastest growing County in the State. The 1970 figures are already much out of date, the exact extent of which we know not, but the situation here will present a massive change when the 1980 Census figures are known. This Court takes judicial notice of its independent efforts, by computer and otherwise, to create the 1971 plan, D.C. Miss., 330 F.Supp. 506. Looking at the picture statewide, the Court is aware of no better solution for the situation prevailing in Marshall and DeSoto. The Legislature has done what this Court did. After 1980 this area will most likely be entitled to four Representatives. District 36, Simpson County is 9.7 percent above the norm, while District 34, Amite, Franklin, and Wilkinson, a thinly populated area, squeezed in between the Mississippi River and the Louisiana boundary, is 9.5 percent below the norm, for a maximum deviation of 19.2 per cent. The Legislature placed these Counties exactly as this Court, for lack of a better alternative, placed them in 1971. District 19, Attala County, in the geographical center of the State, is 7.7 percent above the norm, while District 14, Bolivar County, on the Mississippi River bordering Arkansas, is 9.3 percent below the norm, for a maximum of 17 percent. All other Districts are within the Virginia ceiling which approached, but did not reach, impermissibility. It is fortunate, we think, that out of forty six House Districts only six are above the maximum deviation permitted in Mahan v. Howell, one pair of Districts by 3.3 percent, another by 2.8 percent, and the last by .6 of one percent. Mississippi has a total population of 2,216,912 people, residing in eighty two counties. On a computerized basis, the norm for each county would be 27,035. Twenty two counties have less than half of that population. Issaquena, on the River, has 2,737. Ten counties have less than 10,000 people. Thirty counties have an area of less than 500 square miles. The State has three highly diverse geographical regions, the Yazoo-Mississippi Delta, the Northeast hills, and the Piney Woods, which merge with the Gulf Coast. The disparities in these regions account in a large measure for abrupt deviations in population, even in adjoining counties. Senator J. Z. George and his associates in the Constitutional Convention of 1890 tried to compensate for these divergencies by erecting three “grand divisions”, the counties designated for each, for the purpose of legislative reapportionment. No division could have less than one third of the total representation in the House. Section 254 of the Constitution of 1890. Under the impact of one person-one vote, the “grand divisions” are long gone. They had to go because, in the present day, many of the counties had three times more, or three times less, representation than their population entitled them to have. In accomplishing a valid reapportionment of the Mississippi Legislature, the mind boggling problem is to begin at the Tennessee border and move southward between Alabama and the Father of Waters to the Gulf of Mexico, winding up with legislative districts as close to the population norm as “may be practicable”. From our own experience in formulating the 1971 plan, we know that the difficulties would be hard to exaggerate. We conclude this discussion of the one person-one vote reapportionment of the Mississippi Legislature by quoting from our 1971 opinion in this case, 330 F.Supp. at 518: In Mississippi each County is divided into five beats, which are the units of county government. Supervisors, school board members, local election commissioners, justices of the peace, and. constables, (local county officials) are elected from the beats. The plaintiffs have suggested that a more nearly equal apportionment might be attained in some instances by separating a beat from the county to which it belongs and adding it to another county in order to attain a population figure more closely approaching the norm and in order to create districts for the election of a single legislator. It is the opinion of the Court, however, that such action is not necessery in order to attain satisfactory reapportionment, as the hereinabove tables of population clearly demonstrate. There are two added objections. First, the County has always been the only unit of state government. The boundaries have been, fixed by statute for generations. Every citizen, regardless of his lack of education or other opportunities, knows the county of his residence and where he is expected to vote. There are 410 beats in Mississippi, the boundaries of which may be, and often are, changed by order of the Board of Supervisors. Beat lines generally follow governmental land lines as laid down by section, township, and range — in other words invisible to all, and unknown to most. It is a rare individual who knows where a beat line is at any given point, although most are able to keep up with the general location of the beat for the purpose, of electing local officials with whom the voter is personally acquainted. Even worse, in our opinion, is the thought that a beat taken from one county and arbitrarily annexed to another for the sole purpose of attaining a desired, arbitrary population ratio, would, in practical effect, destroy the weight of the vote of the annexed (minority) beat. The voter would appear to be voting on an equality, and mathematically this would be so, but his chance of influencing the outcome desired by the great majority living in the adjoining county would be ephemeral. We, therefore, adhere to county lines as the best, fairest and most effective method, of delineating districts for the election of state legislators in Mississippi. We must not overlook the fact that as in Virginia, Section 89 of the Mississippi Constitution of 1890 provides for local and private legislation. The litigants in this case have not provided the Court with any statistics on the volume of local and private legislation annually enacted by the Mississippi Legislature but we take judicial notice of the fact that it is considerable. As to any particular county, it is often of crucial importance. From the foregoing, adopting all statements of fact made on the responsibility of the Court as findings of, fact, we summarize, as findings of fact. 1. The preservation of the integrity of county lines from the very beginning has been, and is, uniform state governmental policy and tradition in Mississippi. At the May 7 hearing counsel for plaintiffs conceded [Transcript, Page 8] that no instance could be found from 1817 to date in which county lines had been breached in setting up legislative districts. As the Supreme Court recognized in Mahan, supra, it is a rational policy. 2. In the 1975 legislative reapportionment now under consideration, the Legislature acted awarely of its constitutional responsibilities. It made an honest effort in good faith to comply with those responsibilities, 3, it did comply with those responsibilities. 4. The Acts reapportioning the House and the Senate, with the exception of Harrison County, represent as nearly as practicable, a compliance with the standards of the one person-one vote rule as enunciated by the Supreme Court of the United States. Any deviations from the population norm, with the noted exception, were reasonably unavoidable and, as hereinabove set forth, were constitutionally justified. 5. The reapportionment plan adopted by the Legislature, except as to Harrison County, grants substantially equal weight to every vote of every citizen in the selection of the Mississippi Legislature. We have no doubt that the 1975 reapportionment of the Mississippi Legislature will not deprive any person of fair and effectual representation in that lawmaking body, Gaffney v. Cummings, supra. This intensely local appraisal is born of ten years’ experience with this case, White v. Begester, supra. We turn now to the issue concerning the alleged dilution of black voting strength, the applicable law having already been stated. Facts Concerning Dilution of the Black Vote The irony of the one person-one vote rule is that .it caused a drastic dilution of black legislative voting strength. Many of the majority black voting counties fell far short of having the population required to retain the seats theretofore assigned to them. The evidence of this is found in the following table which reflects the population in the black majority counties in 1960, their representation in the House in 1960, and the applicable norm today. COUNTY BLACK WHITE HOUSE HOUSE MEMBERS Pop. Pop. Members (By Norm) 1960_1960_1960_1970 Census Amite 8,440 7,130 0.75 Bolivar 36,663 17,521 3.00 Carroll 6,492 4,677 0.57 Claiborne 8,239 2,600 1/2 0.55 Clay 9,717 9.214 1.00 Coahoma 31,440 14,630 2.23 Copiah 14,058 12,992 1.35 DeSoto 14,625 9,248 1.90 Holmes 19,488 7,595 1.27 Humphreys 13,300 5,758 0.79 Issaquena 2,399 1,176 0.25 Jasper 8,437 8,402 1/2 0.82 Jefferson 7,652 2,489 1/2 0.52 Jeff Davis 7,408 6,126 0.71 Kemper 7,212 4,828 0.43 Leflore 30,307 16,699 2.30 Madison 23,630 9,267 1.60 Marshall 17,239 7,264 1.30 Noxubee 12,064 4,724 0.78 Panola 16,216 12,565 1.48 Quitman 13,254 7,715 1 0.87 Sharkey 7,469 3,247 1 0.49 Sunflower 30,855 14,730 1 2.00 Tallahatchie 15>400 8,580 1 1.00 Tate 10,439 7,696 2 1.00 Tunica 13,315 3,505 1 0.65 Washington 43,097 35,239 3 3.50 Wilkinson 9,428 3,807 2 0.62 Yazoo 18,759 12,862 3 1/2 1.50 TOTAL 58 35 (.23) It will be seen from the foregoing that pursuant to the 1970 Census the 29 black majority counties of 1960 lost 23 seats in the House of Representatives. If one took a look at the statistics in isolation (as appears often to be done) he would say that the application of the one person-one vote rule caused the dilution of the black voting strength of these Counties by 40 percent. The facts are that under the apportionment built into the Constitution of 1890 these Counties had been over represented by 22 seats in the Mississippi House of Representatives. Such glaring inequalities made the one person-one vote rule mandatory. While we do not prolong this opinion to demonstrate it in detail, there were dramatic shake-ups in the white majority Counties as well. One example: Prior to one person-one vote, Choctaw County, the home of the author of this opinion, had elected from one to three Representatives and shared a Senator with another county. Now Choctaw has no Representative alloted to it; it shares a Representative with another county. It shares a Senator with three other counties, not just one. Indeed there are only eleven of the fifty three white counties which are entitled to elect at least one Representative in their own right from single county districts. From 1817 to 1962 each county was guaranteed at least one Representative, elected without the intervention of any other county. The plaintiffs desire to compound this situation by adding numerous appendices across county lines [beats and census enumeration districts] in which the appendix would be allowed to go to the polls but whose vote would have no meaningful impact on true equality of representation in a practical sense. As we understand Mahan v. Howell, a state is not required to do this if it has a well defined policy of not fracturing its county lines and wishes to maintain that policy. Origin of Multimember and Multicounty Districts The use of multiple member and multiple county legislative districts in Mississippi does not have its origin in a desire to cancel out or minimize black voting strength. Before the Civil War, the State had twenty two multiple member House Districts, electing from two to four members each. It also had eighteen Senatorial Districts, composed of from two to four counties each. Hutchinson’s Mississippi Code of 1848, Pages 377, 378. It is a historical fact that under the impact of the Civil War and Reconstruction the Mississippi Constitutional Convention of 1868 was under the joint control of those who, regrettably, had formerly been slaves and recent arrivals, sometimes uncharitably referred to as Carpetbaggers. This 1869 Constitution, which provided for universal manhood suffrage, also provided that twenty nine counties should each elect anywhere from two to five Representatives at large. Twenty three of the twenty nine Senatorial districts contained anywhere from two to six counties. Article XI, Mississippi Constitution of 1869, Page 665 Revised Code of 1871. The policy of more than one legislator from a district and multiple county senatorial districts was in vogue before the Civil War, was reaffirmed by the Reconstruction Constitution, and continued by the Constitution of 1890. It is not only a state policy of ancient origin but it definitely did not arise from racially discriminatory motives. We find this to be an indisputable fact. Multimember Senatorial and House Districts Of the thirty three Senatorial Districts, nineteen districts elect one Senator, eleven districts elect two Senators, two districts elect three Senators, and one district, Hinds County, elects five Senators. In the House of Representatives, there are forty six districts for the election of 122 Representatives. With the exception of Jackson and George Counties, the circumstances of which have been hereinabove discussed, no electoral entity will choose more than four Representatives and there are very few which fall into the three or four Representative category. Where more than one Senator or Representative is to be elected from the same electoral jurisdiction, the candidate are required to run by numbered posts, that is post one, post two, post three, etc. To avoid to confusion involved in casting multiple votes for multiple candidates, Mississippi began adopting the practice in 1954 (Chapter 317, Laws of 1954) of requiring that there be as many posts as there are places to be filled. The candidate qualifies for whatever post he chooses, and by this method the voter is required to vote for only one place for any office at a time. This greatly simplifies the electoral process. It prevents one or two candidates in a group from sweeping the field, particularly candidates who otherwise would have been unopposed. It tends to keep the voter from voting for more candidates than there are offices to be filled, as well as voting for less than the number of places to be filled. Ballots of the former type are thrown out because the will of the voter cannot be ascertained. Those of the latter type would allow the voter to add undue weight to his vote. For example, if three candidates are to be elected and a voter casts his ballot for only one he has, in effect, voted three times for one candidate. For this reason this practice was long ago prohibited in this State. It is the view of this Court that the post system gives every candidate a better chance at the office he seeks. Instead of running against a host of candidates for a number of places, he runs only against those seeking the particular place to which he aspires. The post system largely, if not altogether, dispels the weaknesses in electing a number of members from multimember districts, as discussed by the Supreme Court in Chapman v. Meier, 95 S.Ct. at 760. To be specific, the voter expresses his or her choice for only one office at a time, as if he were voting in a single member district. There can be no confusion, because each post for each office is so identified on the ballot. Since 1903 Mississippi has required that candidates receive a majority of the votes cast in order to win a party primary. If no candidate gets a majority in the first primary, then a run off is required three weeks later between the two high candidates in the first primary. As a general rule there are three or more candidates for the same office in the November general elections— Republican, Democrat, and sometimes several Independents. We, therefore, find that the post system allows the voter a clear cut choice for each place to be filled. Since there are, generally, na more than three legislative places to be filled at a time, we see nothing constitutionally impermissible about the post system, especially when it is recalled that two districts in Fairfax County, Virginia, were allowed to elect five members of the Virginia House of Delegates. Effects of Past Discrimination For ten years the elective franchise in the State of Mississippi, as in Virginia and other states, has been under the strict scrutiny authorized by the Voting Rights Act of 1965. Reverend Rims Barber, Associate Director of the Delta Ministry, assisting “persons and groups of people who are oppressed by poverty or by discrimination in the State of Mississippi”, a witness for the plaintiffs, estimated that from 65 to 70 percent of the voting age eligible blacks are registered to vote in Mississippi [Transcript, 225], while from 77 to 83 percent of the eligible white citizens are registered. He testified that 80 or 90 of the 410 supervisors districts in Mississippi had black population majorities. In these, ten black supervisors have been elected. He knew of only two instances in recent years when there had been what he considered to be interference with the right to actually cast a ballot in Mississippi. Certain black voters were challenged in a municipal election in the Town of Hollandale in 1973, and in a precinct in Madison County. They, however, were allowed to cast challenged ballots. He thought that the technical bars to political participation in Mississippi are “99 percent down”' [Transcript, 253]. There are approximately 1700 voting precincts in Mississippi. Mr. Henry J. Kirksey, one of the plaintiffs, a black citizen, also testified. He was a candidate for the State Senate in 1971, did not actively campaign, and spent no more than $85.00 campaign expenses. He was running as an Independent, opposing Republican and Democratic nominees. He received about 10,000 votes. Seventeen thousand black citizens were registered to vote in the City of Jackson, the predominant portion of Hinds County. He carried all of the black majority precincts, but apparently failed by several thousands of votes to receive the support of all the black voters. He has voted in nearly all elections in Hinds County since 1961. He has not had any problem since 1961 in participating in the political processes of Hinds County. This sums up the testimony offered to show that past discrimination remains a viable force in Mississippi electoral processes, the blacks have any difficulty in registering to vote, that they have any difficulty in meaningfully participating in candidate selection, [Mississippi nominates in primary elections; there is no party registration and the voter participates in the primary of his choice] or in participating meaningfully in any other portion of the political processes. The testimony did show that Representative Clark, presently the only black member of the Legislature, had only one bill enacted into law, but it concerned sickle cell anemia, a dread scourge of the black race, and thus a matter of prime importance to it. The list of bills admitted in evidence dealt mostly with such questions as making it a criminal offense not to vote, posting certain signs on the highway, and declaring state holidays in honor of the late Reverend Martin Luther King, who was not a resident of Mississippi, and of the late Medgar Evers, who was. This was the sole evidence directed toward showing that the Mississippi Legislature is not appropriately responsive to the needs of our black citizens in such important matters as free public education, health services, welfare benefits, or any other matter of importance to all citizens on a nondiscriminatory basis. Under the controlling precedents discussed earlier in this opinion, we find as a fact that plaintiffs have failed to carry the burden of proof that in the electoral processes of Mississippi black citizens are now suffering from the impact of past discrimination, that they are hindered, hampered, or in any way impeded in registering to vote or in voting for candidates of their individual choice. As a matter of fact, it is obvious that the Voting Rights Act of 1965 has effectually reduced all such racially discriminatory factors to what honestly may be termed an irreducible minimum. Certainly this is true as to official state policy. With Further Reference to Cancellation or Minimization of Black Voting Strength Racial Population Distribution in Mississippi According to the United States Census of 1970, Mississippi had a white population of 1,394,781 and the black inhabitants numbered 815,770 — 63.4 percent white and 36.9 percent black, if broken strictly along black-white racial lines. There were also 4,037 Indians and a minimal number of other non-white ethnic groups, such as Japanese and Chinese. The black population is not uniformly distributed throughout the State. Of the eighty two Counties, twenty six have a black population majority and fifty six are white majority. Eight black majority counties are in the First Congressional District, four are in the Second District, nine are in the Third, five in the Fourth, and none in the Fifth. The Fifth District is located in the Piney-Woods-Gulf Coast area which, comparably, has never had a significant black population. In the eight Counties in the Northeastern quadrant, the virtually non-slave area which opposed Secession, bounded by Tennessee and Alabama, there were 152,107 whites and 25,333 blacks. In the nineteen Counties situated wholly or partially in the Yazoo-Mississippi Delta Region, the black population is 286,313, compared to 231,121 whites. Despite such disparities in black-white population concentration the Legislative reapportionment of 1975 provides for the following: SENATORS Districts Senators Districts over 50% black 8 12 Districts 36-50% black 6 13 14 25 Statewide Average Black Population Senators to be elected from Districts having 36% black population or more REPRESENTATIVES Districts Representatives Districts over 50% black 10 26 Districts 36-50% black 16 46 26 72 Representatives to be elected from Districts having 36% black popu- lation or more The breakdown for the various House and Senatorial Districts is as follows: DISTRICTS FOR HOUSE OF REPRESENTATIVES District Seats White Black Per- Per- centage centage _White_Black 1 3 41,561 8,926 82% 18% 2 2 32,044 3,016 91% 9% 3 3 32,336 27,502 54% 46% 4 5 76,103 20,881 78% 22% 5 1 10,819 5,976 64% 36% 6 1 14,254 3,097 82% 18% 7 1 16,145 2,944 85% 15% 8 2 28,120 10,518 73% 27% 9 2 20,132 18,567 5 2% 48% 10 1 9,777 8,760 53% 47% 11 4 24,144 43,747 36% 64% 12 1 7,657 11,632 40% 60% 13 2 13,619 23,261 37% 63% 14 3 18,750 30,338 38% 62% 15 4 32,836 40,149 45% 55% 16 2 12,434 25,203 33% 67% 17 3 2