Full opinion text
MEMORANDUM OPINION AND ORDER EISELE, Senior District Judge. Defendants’ motion to dismiss or alternatively for summary judgment is before the Court. This is a voting rights case in which a three-judge court has been appointed. For the reasons discussed below, the Court will grant in part and deny in part the motion for summary judgment. There are three issues. First, this Court has been asked to decide whether the State of Arkansas, its governor and legislature violated the Fourteenth and Fifteenth Amendments to the Constitution when it enacted legislation aligning and redistricting the four congressional districts in the state. Second, this Court has been asked to decide whether the same legislation violated Section 2 of the Voting Rights Act. Finally, this Court must decide whether that legislation resulted in an unconstitutional malapportionment of the population in violation of the “one person, one vote” standard. The Court will first consider the Voting Rights Act question, followed by a discussion of the Fourteenth and Fifteenth Amendment questions and, finally, the one person, one vote issue. OUTLINE Page I. Background............................................................ 556 II. Summary Judgment Standard........................................... 558 III. Overview and Context of Central Issues................................. 559 IV. A Touch of Political Reality............................................ 563 V. Voting Rights Act Claim................................................ 564 A. Section 2 and the preconditions of Thornburg v. Gingles............. 565 B. Is Section 2 an affirmative action statute? .......................... 572 C. Another barrier: The dual proof requirement of Section 2........... 574 VI. Intentional Racial Discrimination — The Constitutional Claims.............. 578 VII. Malapportionment....................................................... 583 VIII. Conclusion............................................................. 584 I. BACKGROUND The Arkansas Legislature passed Act 1220 in the 1991 legislative session. The Act provided for the redistricting of the Congressional Districts in the State of Arkansas to conform to the revised population figures of the 1990 Decennial United States Census. Governor Bill Clinton signed the bill into law on April 10, 1991. Act 1220, also referred to as Senate Bill 691, or the “Dowd-Harriman” plan (after its sponsors in the Arkansas State Senate) split the state into four separate districts: Pulaski County and the surrounding counties generally form a district as the central hub of the state, District 2. The other three districts complete the wheel around the hub: District 1 is in northeast Arkansas; District 3 is in northwest Arkansas; and District 4 is in what might appropriately be termed the southern part of the state. The apportionment plan enacted by the legislature and signed by the governor follows closely the apportionment plan designed and implemented by this Court in 1982. Doulin v. White, 535 F.Supp. 450 (E.D.Ark.1982) (malapportionment case). The legislative history to the 1991 Act and Act 1220 itself show that the Arkansas legislature gave preference to plans that departed as little as possible from the remedy implemented in Doulin. See paragraph 3 of House Concurrent Resolution 1006 (February 4, 1991), attachment 5 to defendants’ motion, which states, inter alia, that preference shall be given “to a plan which departs as little as possible from the 1981 apportionment plan as developed by the Court in Doulin v. White, so long as such plan is otherwise constitutionally acceptable.” Plaintiffs’ challenge is to the new 1991 districting plan. That plan was made necessary only because of relatively slight population shifts. The following shows the total population and the total black population figures for the 1982 Doulin created districts based on the 1980 census and also the 1990 census figures for the same (1982) congressional districts: NUMBER AND PERCENT BLACK IN CURRENT CONGRESSIONAL DISTRICTS (1982 BOUNDARIES): 1980 POPULATION AND 1990 POPULATION DISTRICT 1982 BOUNDARIES WITH 1980 POPULATION Total Black Percent First 573,551 107,604 18.8% Second 569,116 95,739 16.8% Third 572,937 11,794 2.1% Fourth 570,831 158,631 27.8% 2,286,435 373,768 16.3% DISTRICT 1982 BOUNDARIES WITH 1990 POPULATION First 555,487 101,702 18.3% Second 612,672 106,931 17.5% Third 632,411 13,391 2.1% Fourth 550:i55 151,888 27.6% 2,350,725 373,912 15.9% It will be seen that, during the decade, the overall state population increased 64,290 or 2.8%. The great bulk of that increase (59,-474) was in the Third Congressional District, which has a black population of approximately 2%. And the pleadings make it clear that the Third Congressional District does not really come into play in the lawsuit. The Complaints of the plaintiffs and of the black Intervenors refer to, and complain about, the First, Second and Fourth Districts. See paragraphs 24, 28, 32(d), 32(e), 32(g), and 33 of the Complaint and paragraphs 40, 46, 47 and 50 of the Complaint in Intervention. The total increase in the combined population of those three districts from 1980 to 1990 is 4,816 or 0.2%. However, among those three districts, the First decreased 18,064 or 3%; the Second increased 43,556 or 7.7%; and the Fourth decreased 20,676 or 3.6%. The racial mix in the three districts changed very little between 1980 and 1990: the First went from 18.8% black to 18.3%; the Second from 16.8% to 17.5%; and the Fourth from 27.8% to 27.6%. Of the total population of Arkansas in 1991 (2,350,725), 373,912 persons, or 15.9%, are black. This is down from 16.3% in 1980. The number of blacks of voting age, however, is 237,502 which is only 12.73% of the state’s total voting age population. Under Act 1220 of 1991 the black percentage of total population in the three implicated districts changed as follows: 1980 BOUNDARIES 1991 BOUNDARIES 1982 1991 1991 First 18.8% 18.3% 17.9% Second 16.8% 17.5% 17.6% Fourth 27.8% 27.6% 26.6% The voting age figures for blacks changed as follows: 1980 BOUNDARIES 1991 BOUNDARIES 1982 1991 1991 15.6% 15.3% 14.8% First 14.5% 15.1% 15.2% Sécond 24.6% 24.7% 23.74% Fourth To meet a theoretically perfect “one person one vote” test, the First District would need to gain 32,194 persons; the Second would have to lose 24,991 persons; the Third would have to lose 44,730; and the Fourth would have to gain 37,526. This, then, is the factual situation which confronted the Arkansas Legislature (the “General Assembly”) when it took up the redistricting issue in 1991. The legislature obviously used the Dou-lin Court’s plan as a starting point when it formulated Act 1220. The two plans are markedly similar. The differences between the two plans may be quickly summarized: by virtue of the 1991 Act, District 2, at the center of the state, gained Van Burén County, with a 1990 population of 14,008, from District 1 in the northeast corner; District 2 lost Lonoke County, with a 1990 population of 39,268, to District 1; District 2 therefore had a net loss of population to District 1. District 3 lost four counties and District 4 gained three counties. In the northern part of the state, District 3 lost Searcy County, with a 1990 population of 7,841, to District 1. In the southern part of the state, District 3 lost three counties to District 4: Howard County with a 1990 population of 13,569; Montgomery County with a 1990 population of 7,841; and Sevier County with a 1990 population of 13,673. In summary, a total of six counties with an aggregate 1990 population of 96,164 were changed and moved about among the various districts. The same values that the Court in Doulin found appropriate are preserved by Act 1220. The 1990 population of the state was 2,350,725. The theoretical population of each congressional district that will assure a mathematical “one person, one vote” result is therefore 587,681, or one-fourth of the total population of the state. The populations of the congressional districts as mandated in Act 1220 are as follows: District 1, northeast Arkansas: 588,588; Dis-triet 2, Pulaski County and central Arkansas: 587,412; District 3, northwest Arkansas: 589,523; District 4, south Arkansas: 585,202. The total variance from the ideal size is therefore .73%. II. SUMMARY JUDGMENT STANDARD Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment may be granted “if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law.” In Lujan v. National Wildlife Federation, — U.S. —, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990), the United States Supreme Court stated that “regardless of whether the moving party accompanies its summary judgment motion with affidavits, the motion may, and should, be granted so long as whatever is before the District Court demonstrates that the standard for the entry of summary judgment, as set forth in Rule 56(c), is satisfied.” Id. 110 S.Ct. at 3187 (quoting Celotex v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986)). The Lujan Court further stated that where the nonmoving party will carry the burden of proof at trial, “Rule 56 does not require the moving party to negate the elements of the nonmoving party’s case.” Id. Once a party has carried its burden under Rule 56, the “opponent must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). “[T]he nonmoving party must come forward with specific facts showing that there is a genuine issue for trial.” Fed.R.Civ.P. 56(e). Although the inferences to be drawn from the underlying facts must be viewed in the light most favorable to the party opposing the summary judgment motion, United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962), this does not mean that the nonmov-ing party may simply rest upon general allegations in the complaint or assertions that there exists a genuine issue of fact. See Lujan, 110 S.Ct. at 3188. III. OVERVIEW AND CONTEXT OF CENTRAL ISSUES What was said in Jeffers v. Clinton, 730 F.Supp. 196, 227 (E.D.Ark.1989) (Eisele, C.J., dissenting) applies equally here: It is my view that many Voting Rights cases, such as this one, are changing the political landscape of America in fundamental ways without legislative mandate and without the benefit of scholarly legal and political discourse. In so doing these cases are, in an almost inadvertent manner, redefining the nature of our democratic form of government, contrary, I believe to the Constitution. Do we really believe in the idea of one political society or should this be a nation of separate racial, ethnic, and language political enclaves? Surely such issues are worthy of serious, focussed debate and discussion. Ironically, there has been precious little of either. This case carries the effort to concentrate black voters into fewer and fewer districts a step beyond that already taken in Jeffers v. Clinton. If successful, it would leave our nation but one short step removed from a system of representative government based on race, ethnic origin and language, (is religion next?), in which system district lines would be irrelevant. We would then end up with a system of pure proportionate representation predicated upon factors that should be completely irrelevant in the political life of a democratic society. But it is not necessary to take that additional step in order to end up with a system of proportionate representation based on race. The Jeffers rationale, if permitted to stand, will bring us close to that end and plaintiffs’ success here would, for practical purposes, complete the process. Cases such as this thrust us into the political thicket. There is no reason to deny this reality. We must search for a principled context for guidance. Revitalization of Section 4 of Article IV of our Constitution, the guarantee of a Republican Form of Government, has been suggested. In any event we must recognize that traditional narrow legal principles must yield to larger legal-political considerations, for we are dealing with the essence of our democratic society. We do not, therefore, hesitate to cite those outside the legal community who have given thought to these issues. Ms. Abigail Thernstrom has written with insight in the area. In her book, Whose Votes Count?, she states: It might be said that blacks in every jurisdiction benefit from having their own in office. However, that is an argument not for federal intervention but for black political organization. “The extension of trust or ‘friendship’ beyond the family and of citizenship beyond race, ethnicity, and religion, is a significant political achievement,” Michael Walzer has written. “I think,” he adds, “we will want ... to limit the ways in which group membership counts as a qualification for office, much as we limit the ways in which blood relationship counts, and for similar reasons.” In amending section 2, [of the Voting Rights Act] Congress unequivocally and wisely rejected the notion of group entitlement to even one legislative seat. * * # * ♦ * Perhaps the most important [cost attached to maximizing minority office holding] is the danger that categorizing individuals for political purposes along lines of race and sanctioning group membership as a qualification for office may inhibit political integration. As James Blumstein argued at the 1982 Senate hearings, such categorization amounts to a racial “piece-of-the-action approach,” perhaps freezing rather than thawing the previous system of racial politics. The heightened sense of group membership works against that of common citizenship. And as Donald Horowitz pointed out at those same hearings, ethnic boundaries, by diminishing the sense of common citizenship, may “ultimately smother democratic choice and threaten democratic institutions.” This same point was made again very recently by Mr. Stuart Taylor, Jr. in “Voting By Race”, American Lawyer, June 1991, Id. at pp. 50, 51: More fundamentally, these developments raise the question whether some voting rights suits and remedies now being pursued around the country may — in the long run — do more harm than good, by spurring politicians to appeal only to members of their own race, and by putting the law’s imprimatur on the notion that it’s only natural to vote along racial lines. Are voting rights suits entrenching separate-but-equal elections as a permanent feature of the American landscape? Are they institutionalizing the kind of racially polarized politics we should be trying to get away from? Might they leave minorities and their representatives isolated? ?jc * h< # Almost every step that has been taken down this road has a certain logic. But with each new step — with almost no public debate — we seem to be perpetuating racial divisions by carving a principle of racial separation into our electoral system. The net long-term effect of creating as many black- and Hispanic-majority voting districts as possible could be to reduce black and Hispanic voters’ influence over policy makers generally, by leaving many white officeholders with little incentive to court them. And in August, 1991, Mr. Charles Lane, a general editor of Newsweek, wrote about the districting process used in developing New York City’s plan for 51 new city-council districts: Above all, the New York districting battle is a case study in how the Voting Rights Act, once one of the most potent weapons in the battle to overthrow segregation in the South, has come to be a tool to institutionalize racial separatism in American politics. * * * * * * This superficially progressive policy places a different value on the races for purposes of representation. It subtly sanctions the notion that minorities need only aspire to a second-class level of political awareness and activity. Rather than strengthening minority political power, the system arguably undermines it by confining minority influence to a single, concentrated area. And safe race-based districts, in which candidates need only take account of the interests of their own group, are a potential breeding ground for extremists of all races. Mr. Lane next described the overt political in-fighting involved in developing the New York City redistricting plan. He then observed: Those deliberations took place in an atmosphere of jarringly frank racial politics. Members referred to one another by group, as in “the African-American commissioner” or “the Asian-American commissioner.” Blacks who lived outside planned black districts were referred to as “wasted.” The “wasted” blacks in a housing project in upper Manhattan were “exported” from a “Dominican district” and “imported” to a black district nearby. The switch left the black district looking like a giant crab claw, pinching each side of the Latino zone. Greeks in Queens briefly pressed a claim before the commission. A disabled man presented a map purportedly showing concentrations of disabled voters. At one hearing, a “Latino of African-American descent” demanded the whole commission resign. These pleas were ignored. But the commission did create a Manhattan district designed to elect an openly gay or lesbian candidate. The New Republic, p. 15. And then on September 10, 1991, Mr. Lane revisited the issue, this time writing in New York News-day: The districting deliberations were not only a battleground for racial and ethnic turf wars, but an illustration of a national. trend that has accelerated as states redraw political lines to account for the 1990 Census: The Voting Rights Act, once instrumental in overthrowing political apartheid in the South, is becoming a tool in the racial balkanization of American politics. ****** In effect, the federal legal system is imposing proportional representation, enshrining the notion that each racial group in America has a right to a quota of seats in government. ****** Concentrating voters by race also increases the likelihood that candidates of all races will appeal only to members of their own group, thus fostering extremism — and reducing the possibilities for multiracial coalitions. Instead of “empowering” minorities, the emerging system may weaken them, by confining their influence to a single area rather than permitting them to function as a “swing” vote in several districts. ****** At least one key civil rights leader, John Jacob, executive director of the National Urban League, believes it is time to reassess federal voting rights policies. “We have to ask if this isn’t a new form of political apartheid — assuring some safe congressional seats for blacks at the cost of losing influence with legislators from adjoining districts,” he told the group’s annual conference in Atlanta last July. “Strategies that made sense when we just got the vote may not be the best strategies for leveraging our influence on issues that require broad legislative coalitions.” New York Newsday, pp. 40, 78. Ms. Thernstrom, writing about legislative redistricting in the Washington Post on September 23, 1991, states: Does fair representation demand such a system of reserved seats for separate castes? Only if America is a caste society composed (in effect) of separate nations defined by race and ethnicity. ****** It is a vision of America deeply at odds with that upon which the civil rights revolution was built. Justice Department policy ... represents a sad betrayal of what the civil rights movement should stand for — a commitment to an integrated society, a society in which the horizons of trust extend beyond our racial and ethnic groups, a society in which the ties that bind us reach across racial lines. Dunne [the Assistant Attorney General for civil rights in the Justice Department] argues that in insisting on legislative quotas — race-based gerrymandering to protect black candidates from white competition — he is only enforcing the law. But Congress never envisioned the 1965 Voting Rights Act as an instrument for apartheid. Neither the original act nor its subsequent amendments were supposed to force jurisdictions to create a Jim Crow system of elections — districts of whites and districts for blacks. Dunne [the Assistant Attorney General for Civil Rights in the Justice Department] is rewriting the law to conform to black separatist notions that can only work to harden the racial and ethnic lines that already divide us. Race may still have much to do with the way people vote. Often too much. But we build the expectation of racial separation into our basic political structure at our peril. Reality is not perfect, but our principles should remain so. We need electoral arrangements that deliver the right messages. And the right messages are: that we are all Americans, that we’re in this together, that the government thinks of us and treats us as individual citizens with individual (not group) rights, that whites can represent blacks and blacks can represent whites, that we have no need for legislative quotas since distinct racial and ethnic groups are not nations in our society and that race does not and should not define the content of our character, political or otherwise. The message that we deliver in our public policies are [sic] important. They help to shape the society. And the messages I urge square with the intent and language of the law. Washington Post, p. A.ll. It is unfortunately true that there is a dearth of legal scholarship in this area. But at least some social and political scientists and astute journalist-reporters have been observant enough, and sensitive enough, to note what we are about here. We do not hesitate to cite their observations in what, after all, is an area — political life — where all, and none, are experts. The idea that race or ethnicity, or language, or religion might become the basis for distributing voters during the periodic redistricting processes runs counter to our professed belief in the “oneness” of American political life and to the belief in Democracy itself with its emphasis on the individual citizen. There is no one coherent political philosophy, political principle or political program subsumed under such group labels as “black citizens,” “white citizens,” “Asian citizens,” or “Hispanic citizens.” Historically we Americans have opted to pursue the ideal of equal political opportunity for each individual citizen. The standard is “one person, one vote.” When we speak in terms of “group political rights” for such categories of voters we are immediately in deep water, for so much of real political significance may be hidden under such group labels. Do we not denigrate the importance of the individual, and that individual’s independent, complex, political views, when we, on the basis of skin color alone, casually lump him or her into some “cohesive” group during the redistricting process? As Ms. Thernstrom observed in the article on redistricting in the Washington Post on September 9, 1991, supra, the policy of the civil rights division of the Department of Justice requiring districting plans to provide the maximum number of safe black legislative seats, ... violates basic democratic premises about the fluidity of the categories into which voters put themselves — the different emphases they place on their racial, ethnic, religious, class, gender and other identities. Individual citizens in our society are supposed to choose how they think of themselves, and those choices will often vary from election to election. Depending on the issues, in one election I may think of myself primarily as a female voter and in another as a surbur-banite. In pasting racial and ethnic labels on voters and assuming that only racial identity counts for purposes of dis-tricting and other electoral arrangements, the Department of Justice substitutes a rigid system of group rights for that of individual representation. Washington Post, p. A.11. The only political unit in our democracy that has any consistent coherency or integrity is the individual citizen voter. In redistricting cases we seek to determine if there has been any denial or abridgement of the “right to vote” of “any citizen of the United States.” Groups, whether racial, ethnic, language or religious, do not have the right to vote. But, although sad, it is nevertheless true that individuals, solely because of their identification with some racial, ethnic or religious group, are still discriminated against in this country. But how does one deal with this problem in the political arena? Is it by segregating and isolating such groups as was ordered in Jeffers and as is being sought here? The majority in Jeffers stated: White voters, in short, can elect white candidates against black opposition, but black voters cannot elect black candidates against white opposition, with insignificant exceptions. We hope the day will come when this is no longer true, when voters of both races will vote for the person and not for the color of his or her skin. 730 F.Supp. at 209. We share this hope, but we believe the ruling and the remedy of the Court in Jeffers will substantially delay, and perhaps even prevent, the realization of that hope. The only justification for using race, or ethnicity or language as a basis of political segregation is that the law requires it. And when does the law require it? This opinion will attempt to answer that question. IV. A TOUCH OF POLITICAL REALITY Under current realities the “black influence district” which plaintiffs seek here will not be a “safe black district” but, it will be a “safe Democratic Party district.” And yet no one has intervened in this case to oppose this result on behalf of the Republicans (black and white) in the proposed Fourth District. Indeed, the Republican Party is here identifying itself with the black plaintiffs’ interest. The unspoken assumption is that the Republicans in the proposed Fourth District will sacrifice their own political interest (wresting this seat from Democratic control) in favor of the larger objective of the Republican Party, i.e., to gain strength in the other two implicated congressional districts. But we do not really know what the Republicans (black or white) in the proposed Fourth District think about plaintiffs’ plan any more than we know what the blacks in the First and Second District think about it. Why? Perhaps because neither group is really aware of, or understands, this proposal. And they may not reach such an understanding unless and until that plan is placed into effect by this Court. Such is one of the dynamics of these redistricting cases. The adversarial system does not work too well in this type of litigation because of the absence of adequate notice to affected parties and also because of the mixed motives and interests of the actual parties and the sponsors of such litigation. As stated by Ms. Thernstrom: Republicans have an additional reason for overlooking racial gerrymandering that benefits black candidates: what is good for black candidates is often good for Republicans. As blacks are drained from white districts, the latter become fertile ground for conservative candidates. In Jefferson County, Alabama, an out-of-court settlement in 1985 replaced an at-large system — under which only whites had been elected — with five single-member districts. Two safe black districts were created, leaving three that were almost completely white, and the Republicans benefited from the change. Unless unopposed, Democrats could not win in districts that contained few blacks, and in 1986 two Democratic incumbents lost. The Jefferson County story was not unique. As a consequence of a compromise reached by South Carolina and the Department of Justice (joined by the NAACP), the state increased the proportion of black voters in two senatorial districts. In the 1984 election, in four districts from which blacks had been drained, conservative Republicans replaced incumbent liberal Democrats. In Gingles, the North Carolina case, state Republican leaders openly acknowledged the “happy coincidence” between the interests of blacks and Republicans. Indeed, they had much to celebrate. Following the district court decision, the North Carolina general assembly created thirty-one single-member districts out of eight that had been multimember. In 1984 the new districting helped Republicans double their share of state legislative seats. Ironically, it was the Democrats — usually quick to charge the Republicans with lax civil rights administration — who were unhappy. Safe black districts, they said, isolate black voters and deprive liberal white Democrats of crucial black support. Thernstrom at 234. All of which would be irrelevant if the plaintiffs and intervenors would be enti-tied, upon proof of the facts alleged in their Complaints, to the relief sought. In other words, if, under the Voting Rights Act or the Constitution, the plaintiffs and inter-venors in this case were entitled to the relief they are seeking, the negative consequences that would follow from that result would not constitute a basis for the denial of such relief. But this overview is important because plaintiffs and the black inter-venors contend this result is what the Congress mandated and intended when it amended Section 2. They also contend that the Fourteenth and Fifteenth Amendments to the Constitution require the creation of such an “influence” district upon proof of the facts alleged in their Complaints. Certainly the consequences of such interpretations must be weighed in assessing the merit and reasonableness thereof. V. VOTING RIGHTS ACT CLAIM Plaintiffs claim that the reapportionment plan violates Section 2 of the Voting Rights Act, 42 U.S.C. Sec. 1973, as amended in 1982. The basis of plaintiffs’ claim is that the new congressional district boundaries “dilute black voting strength ... with the effect ... of giving the black citizens of this state less opportunity than other members of the electorate to elect representatives of their choice.” Complaint at 10. This case raises, inter alia, an issue similar to the one reserved by the Supreme Court in the seminal case analyzing the 1982 amendments to Section 2, Thornburg v. Gingles, 478 U.S. 30, 46 n. 12, 106 S.Ct. 2752, 2764 n. 12, 92 L.Ed.2d 25 (1986), to wit: whether a minority group that is not sufficiently large and compact to constitute a majority in a single-member district has a lawful claim under Section 2 for the creation of a “superminority” district as prayed for in the Complaint. This Court concludes that, under the undisputed facts and circumstances of this case, plaintiffs and plaintiff-intervenors have no actionable claim for such relief. A. Section 2 and the “Preconditions” of Thornburg v. Gingles Before its amendment in 1982, Section 2 of the Voting Rights Act of 1965 provided: No voting qualification or prerequisite to voting, or standard, practice, or procedure shall be imposed or applied by any State or political subdivision to deny or abridge the right to any citizen of the United States to vote on account of race or color, or in contravention of the guarantees set forth in section 1973b(f)(2) of this title. 42 U.S.C. § 1973 (1981). As a result of the 1982 amendment, Section 2 now reads as follows: (a) No voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgment of the right of any citizen of the United States to vote on account of race or color, or in contravention of the guarantees set forth in section 1973b(f)(s) of this title, as provided in subsection (b) of this section. (b) A violation of subsection (a) of this section is established if, based on the totality of the circumstances, it is shown that the political processes leading to nomination or election in the State or political subdivision are not equally open to participation by members of a class of citizens protected by subsection (a) of this section in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice. The extent to which members of a protected class have been elected to office in the State or political subdivision is one circumstance which may be considered: Provided, That nothing in this section establishes a right to have members of a protected class elected in numbers equal to their proportion in the population. 42 U.S.C. § 1973 (1991 Supp.) (Emphasis in original). The 1982 amendment rejected the position of the plurality opinion in City of Mobile v. Bolden, 446 U.S. 55, 100 S.Ct. 1490, 64 L.Ed.2d 47 (1980), which held that the 1965 Voting Rights Act required a showing that the contested electoral practice was adopted with the intent to discriminate against minority voters. The 1982 amendment replaced the “intent” test with an earlier test, from White v. Regester, 412 U.S. 755, 93 S.Ct. 2332, 37 L.Ed.2d 314 (1973), focusing on the impact, result, or effect of the contested structure or practice on minority electoral opportunities. So proof of an intent to discriminate under the current version of Section 2 is not required. Indeed, under a literal reading of the current version of Section 2, if there is present an intent to discriminate which does not result in any discrimination, or have any discriminatory effect, the statute would not appear to come into play because, simply, that intent would not “result in the denial or abridgment” of anyone’s rights. As stated by Justice Scalia in his dissent in Chisom v. Roemer, — U.S. —, 111 S.Ct. 2354, 2369-70, 115 L.Ed.2d 348 (1991): As currently written, the statute proscribes intentional discrimination only if it has a discriminatory effect, but proscribes practices with discriminatory effect whether or not intentional. Before analyzing a case under Section 2 it is important to take a “walk through that statute” as was done in Jeffers. Although we believe the meaning and interpretation of Section 2 as applied to this case is clear, we recognize the convoluted grammatical arrangement thereof requires the reader to carefully follow the succession of phrases by which the statute reinterprets itself. Subsection (b) of Section 2 makes it clear that the operative provisions of Section 2 are contained in subsection (a). In other words, the question always is whether the challenged standard, practice or procedure ... violates subsection (a). We know this because subsection (b) merely refers back to subsection (a) by use of the following introductory language: “A violation of subsection (a) is established if____” So the basic question which courts are asked to answer in applying Section 2 is whether the [standard, practice or procedure] is being imposed or applied “in a manner which results in a denial or abridgement of the right to any citizen ... to vote on account of race ...” If it is decided that the challenged [standard, practice or procedure] does not result in a denial of the right of any citizen to vote on account of race, then the court must determine whether that [standard, practice or procedure] results in an “abridgement of the right of any citizen to vote on account of race.” In this context, it is assumed that “abridge” would mean to curtail, limit, or burden. In any event, we are dealing with the right to vote, either its denial or its curtailment or limitation. As pointed out above, subsection (b) of Section 2 identifies what is necessary to establish a violation of subsection (a). Of course, it is assumed that there should be some logical nexus between the showing identified in subsection (b) and the “denial or abridgement” language of subsection (a). According to subsection (b), a denial or abridgement of the right to vote “is established if ... it is shown that the political processes leading to nomination or election ... are not equally open to participation by members of ...” a protected class. It is easy to determine whether a [standard, practice or procedure] denies any citizen the right to vote. If not, subsection (b) states that a showing that the “political processes” are not “equally open to participation,” because of the challenged [standard, practice or procedure], would nevertheless be adequate to establish that the [standard, practice or procedure] abridged the right to vote. So we look at the [standard, practice or procedure] and determine if it has resulted in the political process “not being equally open to participation” by black citizens. If it did not have that effect, then, logically, one would conclude no violation. But subsection (b) of Section 2 has another phrase that must be dealt with. It, in effect, states that a showing can be made that the challenged [standard, practice or procedure] has caused the political process “not to be equally open to participation” by black citizens if it can be shown that such black citizens “have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.” So, if the challenged [standard, practice or procedure] does not cause black citizens to “have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice,” then it cannot be found that such [standard, practice or procedure] causes the political processes “not to be equally open to participation” by black citizens and, therefore, finally, there would be no violation of the operative language in subsection (a), i.e., the “abridgement of the right of any citizen ... to vote on account of race.” Absent a showing that the challenged [standard, practice or procedure] resulted in the denial of a citizen's right to vote, the first inquiry, then, will be whether that [standard, practice or procedure] caused blacks to have “less opportunity than other members of the electorate to participate in the political processes and to elect representatives of their choice.” Jeffers, 730 F.Supp. at 229-30 (Eisele, C.J., dissenting). Since it is the 1991 redistricting decision of the Arkansas Legislature which is being challenged here, the first phrase of Section 2(a), [to wit, “No voting qualification or prerequisite to voting,”] is not implicated. Such a legislative redistricting plan, and any Section 2 challenge thereto, must therefore fall under the rubric of “standard, practice or procedure.” In the context of this case, the stated purpose of Section 2 is to prohibit states and other political subdivisions from imposing any “standard, practice or procedure” which results in black citizens having less opportunity than others to participate in the political process and to elect representatives of their choice. It is the “opportunity” of blacks “to participate” and “to elect” to the same extent as other members of the electorate that may not be denied or abridged by any state created or applied barrier. In Thornburg v. Gingles, 478 U.S. 30, 106 S.Ct. 2752, 92 L.Ed.2d 25 (1986), the Supreme Court interpreted the 1982 amendments to the Voting Rights Act. It enumerated several “objective factors” which a court should consider when analyzing the “impact” of the challenged state practice. Those factors, listed in the Senate Report to the 1982 amendment, are often called the “Senate factors” or the “Zimmer factors,” since they were first mentioned in Zimmer v. McKeithen, 485 F.2d 1297 (5th Cir.1973) (enumerating factors to be used in evaluating the totality of the circumstances). See generally, Gingles, 478 U.S. at 43-45, 106 S.Ct. at 2762-2763. However, the Supreme Court went one step further and imposed its own threshold preconditions for certain claims under Section 2: While many or all of the factors listed in the Senate Report may be relevant to a claim of vote dilution through submergence in multimember districts, unless there is a conjunction of the following circumstances, the use of multimember districts generally will not impede the ability of minority voters to elect representatives of their choice. Stated succinctly, a block voting majority must usually be able to defeat candidates supported by a politically cohesive, geographically insular minority group. These circumstances are necessary preconditions for multimember districts to operate to impair minority voters’ ability to elect representatives of their choice for the following reasons. First, the minority group must be able to demonstrate that it is sufficiently large and geographically compact to constitute a majority in a single-member district. If it is not, as would be the case in a substantially integrated district, the multi-member form of the district cannot be responsible for minority voters’ inability to elect its candidates. Second, the minority group must be able to show that it is politically cohesive. If the minority group is not politically cohesive, it cannot be said that the selection of a multimember electoral structure thwarts distinctive minority group interests. Third, the minority must be able to demonstrate that the white majority votes sufficiently as a bloc to enable it — in the absence of special circumstances, such as the minority candidate running unopposed — usually to defeat the minority’s preferred candidate. Gingles, 478 U.S. at 48-51, 106 S.Ct. at 2765-2767 (citations omitted). (Emphasis in original). The Supreme Court specifically reserved, in the context of challenges to multi-mem-ber districts, a question similar to the one at issue in the instant case. The relevant footnote to Gingles states: “[W]e have no occasion to consider whether sec. 2 permits, and if it does, what standards should pertain to, a claim brought by a minority group that is not sufficiently large and compact to constitute a majority in a single-member district, alleging that the use of a multimember district impairs its ability to influence elections____” Gingles, 478 U.S. at 46 n. 12, 106 S.Ct. at 2764. Here we are not dealing with an allegation that the use of multimember districts impairs the minority’s ability to influence elections. But the same or similar arguments can be made in the context of forming single member districts. To prevail plaintiffs must convince the Court that the Gingles preconditions to a Section 2 claim should not apply where, as here, it is impossible to meet one or more of those conditions. Clearly they are contending that the black plaintiffs and inter-venors should not be required to meet the condition that they show they could constitute a majority in a redesigned district. Do they claim that they need not meet the other two preconditions? Apparently not, because they allege that they can establish these preconditions. Lower federal court cases subsequent to Gingles hold that the preconditions en-grafted onto the statute by the Supreme Court in Gingles apply to claims where the minority voters challenge the alleged gerrymandering of single-member voting districts such as those at issue here. See Jeffers v. Clinton, 730 F.Supp. 196 (E.D.Ark.1989), which was also a statewide redistricting challenge. And this part of the Jeffers decision was affirmed by the U.S. Supreme Court, 111 S.Ct. 662 (1991). The principal case relied upon by plaintiffs and the Walker intervenors to sustain their “influence district” contention is Garza v. County of Los Angeles, 918 F.2d 763 (9th Cir.1990). The plaintiffs there conceded that in 1981, when the district lines were drawn, it was not possible to create a majority Hispanic district. However, at the time the suit was filed in 1988, and when relief was granted, it was possible to create such a district. That, of course, is not the situation here. Here it was impossible to create a majority black Congressional district in 1981, and it is impossible now in 1991 to create such a district. The Garza Court handles the “majority population” precondition of Gingles as follows: In this appeal, the County’s threshold argument is that districts drawn in 1981 are lawful, regardless of any intentional or unintentional dilution of minority voting strength, because at the time they were drawn there could be no single-member district with a majority of minority voters. The County asks us to extract from the Supreme Court’s leading decision in Thornburg v. Gingles, 478 U.S. 30, 106 S.Ct. 2752, 92 L.Ed.2d 25 (1986), and subsequent cases in this and other circuits, the principle that there can be no successful challenge to a district-ing system unless the minority challenging that system can show that it could, at the time of districting, constitute a voter majority in a single-member district. In response to this position, the appellees argue that no majority requirement should be imposed where, as here, there has been intentional dilution of minority voting strength. The County thus also challenges the sufficiency of the district court’s findings with regard to intent. We hold that, to the extent that Gingles does require a majority showing, it does so only in a case where there has been no proof of intentional dilution of minority voting strength. We affirm the district court on the basis of its holding that the County engaged in intentional discrimination at the time the challenged districts were drawn. Garza, 918 F.2d at 769. But Section 2 does not speak in terms of intent and Gingles nowhere alludes to this distinction. Furthermore, the Gingles rationale would not support this dichotomy. Even the Garza majority acknowledges the need to show a discriminatory effect: Even where there has been a showing of intentional discrimination, plaintiffs must show that they have been injured as a result. Although the showing of injury in cases involving discriminatory intent need not be as rigorous as in effects cases, some showing of injury must be made to assure that the district court can impose a meaningful remedy. Id. at 771. This is a mild but important concession since Section 2, as now written, speaks only of results and makes no distinction between the intentional and unintentional causes thereof. The Court here also relies on two appellate decisions from other circuits. In Brewer v. Ham, 876 F.2d 448 (5th Cir.1989), the Fifth Circuit denied relief in a voting rights challenge to an at-large election system for Killeen Independent School District in Texas. Plaintiffs’ failure to show that a politically cohesive minority group could form a majority of the voters in a single-member district was dispositive of their voting-rights claim. Id. at 453. The Brewer court, relying on Gingles, specifically rejected the voting rights claim even though a black minority candidate might win a multi-candidate plurality election in a single-member district. Brewer, 876 F.2d at 454-55. In McNeil v. Springfield Park District, 851 F.2d 937 (7th Cir.1988), the Seventh Circuit directly addressed the question before this Court. There the members of the Springfield Park District Board and Springfield School Board, each consisting of seven members, were elected at large. Plaintiffs, black voters, challenged the multi-district system, asking the court to divide the districts into seven single-member districts. The U.S. District Court granted summary judgment for the defendants holding that the plaintiffs failed to satisfy the necessary “preconditions” established by the Supreme Court in Gingles, and, more particularly, the requirement that the plaintiffs show that black voters constituted a “sufficiently large and geographically compact [group] to constitute a majority in a single-member district.” On appeal the black appellants argued that they should be permitted to show that the multi-district plan impaired their ability to influence elections even though they could not show that the scheme impaired their ability to elect candidates of their choice. The McNeil Court addressed this argument as follows: Appellants finally argue that, although the application of Gingles may warrant summary judgment on the claim that the multi-member districts impair their ability to elect their preferred candidates, they can prevail on a claim that the system impairs their ability to influence elections. Appellants rely on a distinction made briefly by the Gingles majority. See 106 S.Ct. at 2764 n. 12. He * * He * * We cannot accept the appellants’ contention that they can avoid the Gingles criteria by arguing that the multi-member districts impair their ability to influence elections. Given the Court’s decision to draw a bright line for summary judgment purposes, it seems counterproductive to permit plaintiffs who cannot satisfy the threshold Gingles tests to make alternative claims that would obliterate the bright line. If allowed, the “ability to influence” claim would severely undermine whatever good purpose is served by the threshold factors. Courts might be flooded by the most marginal Section 2 claims if plaintiffs had to show only that an electoral practice or procedure weakened their ability to influence elections. While Congress intended to make it easier for minorities to show that their vote has been diluted, it presumably did not intend to require courts to entertain claims by a tiny segment of a multi-member district’s population that the group’s inescapably minimal influence has been impaired by the electoral arrangements. In view of the Court’s apparent objective of sharpening section 2’s [sic] focus, we cannot consider claims that multi-member districts merely impair plaintiffs’ ability to influence elections. Plaintiffs’ ability to win elections must also be impaired. McNeil, 851 F.2d at 947. The Court also rejects plaintiffs’ contention that McNeil should not apply to this case because it involved multi-member districts. On the contrary, the statements of the McNeil court apply even more aptly to the single-member districts in question here. The majority opinion in Gingles succinctly states why a showing of “ability to constitute a majority” is a prerequisite to a Section 2 claim: The reason that a minority group making such a challenge must show, as a threshold matter, that it is sufficiently large and geographically compact to constitute a majority in a single-member district is this: Unless minority voters possess the potential to elect representatives in the absence of the challenged structure or practice, they cannot claim to have been injured by that structure or practice. The single-member district is generally the appropriate standard against which to measure minority group potential to elect because it is the smallest political unit from which representatives are elected. Thus, if the minority group is spread evenly throughout a mul-timember district, or if, although geographically compact, the minority group is so small in relation to the surrounding white population that it could not constitute a majority in a single-member district, these minority voters cannot maintain that they would have been able to elect representatives of their choice in the absence of the multimember electoral structure____ Gingles, 478 U.S. at 50 n. 17, 106 S.Ct. at 2766 n. 17. (Emphasis in original). In the language of Gingles, even “in the absence of the challenged structure or practice” (here the district lines created by Act 1220 of 1991), it cannot be shown that it is possible to create a “sufficiently large and geographically compact district” in which black voters could constitute a majority. The claim for a “superminority” district must also fail because, inter alia, of the implications arising out of the third part of the 3-part test outlined in Gingles. In order to establish a Section 2 claim, plaintiffs must show that the white majority votes sufficiently as a block to enable it usually to defeat the minority’s preferred candidate. Were plaintiffs to establish this prong of the test, they would thereby effectively demonstrate that, because of this polarized voting, they would not be able to influence the outcome of an election in their proposed district. So plaintiffs are asking the Court to fashion a “remedy” which would pack black voters into a single district where, by hypothesis, they could not elect a representative of their own choosing, while fracturing and reducing the number of blacks in adjacent districts. But plaintiffs argue here, contrary to the position of the plaintiffs in Jeffers, that if the percentage of black voters in District Four is increased from 27 percent (as it is under Act 1220 of 1991) to 38 percent (as it would be under plaintiffs’ proposal), it will be easier for black voters to “elect representatives of their choice” by forming coalitions with white voters. Their argument not only ignores the need to prove under Gingles that polarized voting prevents this from happening, but it directly undercuts their Section 2 claim by showing that even absent a majority, they could elect candidates of their choice if they sought alliances and coalitions with other voters in the traditional political manner. If this is true there is no need for, or legal basis for, a Section 2 claim. As Justice O’Connor put it in her Gingles concurrence: ... [I]f a minority group that is not large enough to constitute a voting majority in a single-member district can show that white support would probably be forthcoming in some such district to an extent that would enable the election of the candidates its members prefer, that minority group would appear to have demonstrated that, at least under this measure of its voting strength, it would be able to elect some candidates of its choice. Gingles, 478 U.S. at 89 n. 1, 106 S.Ct. at 2787 n. 1 (O’Connor, J., concurring). The requirement of a showing of “racially polarized voting” itself acts as a limit on the percentage of black citizens that may be “packed” into a district. In the case of an area where there is racially polarized voting, the more black voters that are packed into a single legislative district, short of a majority, the less the black voting power or influence in the state as a whole. So if plaintiffs were able to establish the last two enumerated Gingles preconditions, they would thereby also establish that one cannot create an “influence” district by packing less than a majority voting age population into that district. What if the legislature had enacted plaintiffs’ proposed redistricting plan and black citizens in the old First District sued alleging a violation of Section 2? The benchmark would be the 1982 Doulin redistricting plan. In that plan, the black voting populations in the three implicated districts were: Black VAP (Doulin Plan) First 15.6% Second 14.5% Fourth 24.6% Then by hypothesis the legislature enacts plaintiffs’ proposed plan and the black voting population in the four districts changes to: Plaintiffs’ 1991 Proposal First 6.2% Second 13.5% Fourth 38% So whereas Act 1220 of 1991 would change the proportion of black voters to white voters only marginally in the four Congressional districts, plaintiffs’ plan would dramatically dilute black voting power particularly in the First District. Therefore, if the legislature had enacted plaintiffs’ proposed plan and black voters objected thereto, would not those objecting have a “lay down hand” under Section 2? Strangely, the answer under Section 2 is probably not. And this is so not only because of plaintiffs’ inability to satisfy the “majority” requirement of the first Gingles precondition. It would also follow if the Jeffers majority is correct in holding that “less opportunity to elect representatives of their choice” means “less opportunity to elect black representatives of their choice,” because that holding independently implies the need for a majority black voting age population. The language of Section 2, the rationale of Gingles and Jeffers, and precedent control the disposition of defendants’ combined Motion to Dismiss/Motion for Summary Judgment with respect to the cause of action plaintiffs attempt to assert under the Voting Rights Act. B. Is Section 2 an Affirmative Action Statute? But there is another more fundamental issue confronting the Court in this case and in Armour. In Armour, as here, the redistricting act under attack did not change in any significant way the population alignments that existed immediately prior to its implementation. So the fundamental issue arises: Is Section 2 an affirmative action statute at the liability stage? How do the black plaintiffs and the black Walker intervenors contend that Act 1220 results in black voters having less opportunity to participate or to elect? “Less” assumes some benchmark. Less than what? The plaintiffs’ Complaint states that “the 1980 redistricting plan and the proposed [Act 1220] plan fractured black population between the First, Second and Fourth Congressional Districts.” Complaint, paragraph 24. They allege that Act 1220 was designed “to dilute black voting strength in the First, Second and Fourth Congressional Districts” and that it “fractured the black population ... into three different congressional districts,” Paragraph 28. More specifically plaintiffs allege: According to the 1990 census, the three most populous counties in terms of black population are Pulaski with 92,200 black residents; Jefferson with 36,877 black residents; and Crittenden with 21,401 black residents. The Defendants have placed these three counties in three different congressional districts under the Dowd/Harriman plan. Pulaski is in the Second District, Jefferson is in the Fourth District, and Crittenden is in the First District. Plaintiffs’ Complaint paragraph 32(a), p. 10. The Complaint of the Walker inter-venors likewise alleges that Act 1220 “fragmented the African American population ... into three different congressional districts.” Complaint in Intervention, paragraph 29. It further alleges that the boundaries created by Act 1220 “have the effect of diluting African American voting strength.” Paragraph 46. But the uncontested facts show that Act 1220 did not “fracture the black population into three different congressional districts.” Rather it left those populations essentially undisturbed. Indeed, in their Brief, plaintiffs lament that the motivation of Act 1220 was “the preservation of the status quo.” Plaintiffs’ Brief, p. 17. In their oral presentation during the first in-court conference in this case, plaintiffs suggested that the problem of fracturing the black vote goes back to the 1960’s and maybe earlier. This is a recognition that in recent decades there have been no major changes in the black populations occasioned by the congressional redistricting process. Critical here, there was no significant change in 1991 from the plan adopted and approved by the Court in 1982. So unless the legislature was obligated on the occasion of each redistricting to seek out ways and means to increase or enhance the influence of black voters, plaintiffs and the Walker intervenors must lose. Some will say that the United States Supreme Court’s actions in disposing of the Jeffers appeal constitute an approval sub silentio of the view that Section 2 is, indeed, an affirmative action statute requiring the states during any redistricting process to maximize the political effectiveness of black voters. But this can only be “judicial legislation,” for Section 2 only prohibits the imposition or application of any standard, practice or procedure in a manner that results in black voters having less opportunity than others to participate in the political process or to elect representati