Full opinion text
OPINION AND ORDER JOHN W. PECK, Senior Circuit Judge. This three-judge district court was convened to hear Plaintiffs’ constitutional and statutory challenges to the 1991 Apportionment Plan for the Ohio General Assembly (the Plan). Plaintiff Barney Quilter, a state representative and designee of the Speaker of the Ohio House of Representatives, and Plaintiff Thomas Ferguson, Ohio’s Auditor, were the Democratic members of the 1991 Apportionment Board (the Board). The remaining Plaintiffs are Democratic electors and state legislators, some of whom are members of a protected class under the Voting Rights Act. Plaintiffs allege that the Plan impermissibly uses race to draw districts and dilutes minority voting strength in violation of § 2 of the Voting Rights Act, 42 U.S.C. § 1973, and the fourteenth and fifteenth amendments to the United States Constitution. Additionally, Plaintiffs assert a pendant state claim that the Plan violates Article XI the Ohio Constitution which provides specific apportionment guidelines. Defendants George Voinovich, Governor of the State of Ohio, Robert Taft, II, Ohio’s Secretary of State, and Stanley Aronoff, President of the Ohio Senate, were the Republican members of the 1991 Apportionment Board. Defendant James Tilling drafted the Plan. Defendants contend that the Voting Rights Act, as amended in 1982, and federal case law required that, wherever possible, they create majority-minority districts, i.e., legislative districts in which members of a minority group comprise the majority. For reasons which more fully appear hereinafter, we conclude that the Voting Rights Act and federal precedent do not dictate such a per se requirement. While creation of such districts may be an appropriate remedy under certain circumstances, Defendants here failed to make the requisite findings which demonstrate a violation of the Voting Rights Act, thereby permitting such a remedy. APPLICABLE LAW In order to understand the rationale by which the Plan was developed, it is necessary to review § 2 of the Voting Rights Act, as amended, and Armour v. Ohio, 775 F.Supp. 1044 (N.D.Ohio 1991). In 1982, the Voting Rights Act was amended. The legislative history of the amendment stated that its purpose was “to prohibit any voting practice[ ] or procedure [that] results in discrimination” and “to make clear that proof of discriminatory intent is not required to establish a violation of Section 2.” S.Rep. No. 417, 97th Cong., 2d Sess. 2 (1982) U.S.Code Cong. & Admin.News 1982, pp. 177, 179. Section 2 of the Voting Rights Act, as amended, provides: (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 abridgement 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 4(f)(2) [42 U.S.C. § 1973b(f)(2) ], as provided in subsection (b). (b) A violation of subsection (a) 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) 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. Thus, the statute does not focus on the purpose or motivation behind the challenged practice or procedure, but the results of such practice or procedure. A violation is to be determined by a review of the totality of the circumstances. The following is a nonexhaustive list of factors relevant to a totality of the circumstances assessment that may be used to establish an unequal opportunity to participate in the political process and elect a candidate of choice: 1. the extent of any history of official discrimination in the state or political subdivision that touched the right of the members of the minority group to register, to vote, or otherwise to participate in the democratic process; 2. the extent to which voting in the elections of the state or political subdivision is racially polarized; 3. the extent to which the state or political subdivision has used unusually large election districts, majority vote requirements, anti-single shot provisions, or other voting practices or procedures that may enhance the opportunity for discrimination against the minority group; 4. if there is a candidate slating process, whether the members of the minority group have been denied access to that process; 5. the extent to which members of the minority group in the state or political subdivision bear the effects of discrimination in such areas as education, employment and health, which hinder their ability to participate effectively in the political process (footnote omitted); 6. whether political campaigns have been characterized by overt or subtle racial appeals; 7. the extent to which members of the minority group have been elected to public office in the jurisdiction (footnote omitted). S.Rep. No. 417, 97th Cong., 2d Sess. 28-29 (1982) U.S.Code Cong. & AdmimNews. 1982, pp. 177, 205-207. Additional factors that could have probative value in establishing a violation are: whether there is a significant lack of responsiveness on the part of elected officials to the particularized needs of the members of the minority group (footnote omitted). whether the policy underlying the state or political subdivision’s use of such voting qualification, prerequisite to voting, or standard, practice or procedure is tenuous (footnote omitted). Id. at 29. The Senate Committee noted that “there is no requirement that any particular number of factors be proved, or that a majority of them point one way or the other.” Id. Whether a § 2 violation has occurred is “based on the totality of the circumstances and guided by those relevant factors in the particular case_” Id. at 29 n. 118 U.S.Code Cong. & AdmimNews pp. 177, 207. The ultimate “question whether the political processes are ‘equally open’ depends upon a searching practical evaluation of the ‘past and present reality.’ ” Id. at 30. One month before the Board published the Plan challenged here, the Armour court filed its decision. In Armour, the plaintiffs alleged that a voting district boundary in Mahoning County drawn under the 1981 apportionment plan which split a large, cohesive Black population between two districts deliberately and effectively diluted the minority vote in violation of § 2 of the Voting Rights Act and the fifteenth amendment. The Armour court conducted a “searching practical investigation of the past and present reality” in Mahoning County by applying the totality of the circumstances factors and concluded that the boundary was indeed violative of § 2 of the Voting Rights Act and the fifteenth amendment. Significantly, the Black population divided by the illegal boundary was not large enough to form the majority of a single-member district. Thus, the court in Armour recognized that a cohesive group of minority voters could influence an election even though they did not comprise a majority in the district. Armour, 775 F.Supp. at 1052, 1059-60. FACTUAL BACKGROUND Under the Ohio Constitution, beginning in 1971 and every tenth year thereafter, a five-member apportionment board is to assemble and publish an apportionment plan for the General Assembly. Ohio Const, art. XI, § 1. In accordance with this provision, an apportionment plan was published and became effective in 1981, prior to the 1982 amendment of the Voting Rights Act. Tilling, as author of the 1991 Plan, testified that he tried “to make the necessary changes to bring this current apportionment plan into conformity with the 1982 amendments.” (Tilling Dep., Vol. I, at 168). During the end of August 1991 and the beginning of September 1991, Tilling conducted fourteen public meetings throughout Ohio for the purpose of obtaining public comment and minority input on the 1991 Plan. In his comments at these public hearings, Tilling repeatedly stated that his interpretation of the Voting Rights Act and related federal case law required the creation of a majority-minority district wherever possible. Joint Trial Exhibits, passim. For example, at the public hearing in Columbus, Ohio, on August 27, 1991, Tilling stated that to comply with United States Supreme Court guidelines, the Apportionment Board was “under a mandate that wherever a majority-minority district can be created, that must be done.” Joint Trial Exhibits, Tab 2, at 12. Tilling also stated that the Board needed to “establish for the record the totality of the circumstances in each urban area” to comply with the Voting Rights Act and the recent decision in Armour, supra. (Joint Trial Exhibits, Tab 13, at 33). Black community leaders and other interested persons spoke at the public meetings. The Plan was adopted by the Republican majority on the Board on October 1, 1991, amended on October 3, and published on October 5. Plaintiffs Quilter and Ferguson dissented. In this action, Plaintiffs allege that under the guise of protecting minority rights by creating majority-minority districts, Defendants have actually packed minorities into certain districts where minorities historically were able to elect representatives of choice with crossover votes. Plaintiffs contend that the packing results in wasting minority votes in the packed districts and diluting minority voting strength in surrounding areas where the “packed” voters could possibly influence elections. Specifically, Plaintiffs allege minority vote dilution resulting from the revision of nine districts which have been represented by either a minority legislator or a white legislator with a 90% to 100% voting record on bills related to minority issues. With regard to the black legislators, each has been elected to between six and thirteen terms. For the elections between 1984 and 1990, each was elected with an average plurality ranging between 68.27% and 72.64%. Under the 1981 apportionment plan, the black population in their districts ranged from 38.5% to 53.19%. Under the 1991 Plan, the black population in each district was increased between 7.7% and 13.68%. Plaintiffs assert that these increases impermissibly pack black voters in districts where their votes are wasted because there exists substantial crossover voting which allows blacks to elect candidates of choice. Plaintiffs also allege that where these districts were revised, segments of the former district having small minority populations were combined with other districts resulting in the fragmentation and dilution of minority voting strength. Similarly, Plaintiffs allege that the districts represented by the white legislators with responsive voting records on black issues were divided so that portions of the black population were packed into districts with a high percentage of black population or fragmented into districts with such a small percentage of black population that the minority voting strength would be diminished. As justification for these configurations, Defendants assert that the Voting Rights Act and federal case law mandate the drawing of majority-minority districts. We cannot agree. ANALYSIS A. Justification for majority-minority districts The language of § 2 of the Voting Rights Act contains no requirement for majority-minority districts. Rather it prohibits any “standard, practice, or procedure ... which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color....” It is directed against certain results, regardless of how they are produced. Thus, where the creation of majority-minority districts wastes minority votes by packing and dilutes minority influence by fragmenting, the result is an “abridgement of the right ... to vote on account of race or color” which violates the Voting Rights Act. The United States Supreme Court has recognized this principle: Dilution of racial minority group voting strength may be caused by the dispersal of blacks into districts in which they constitute an ineffective minority of voters or from the concentration of blacks into districts where they constitute an excessive majority. (Citations omitted). Thornburg v. Gingles, 478 U.S. 30, 46 n. 11, 106 S.Ct. 2752, 2764 n. 11, 92 L.Ed.2d 25 (1986). Thus, we can find no per se requirement for the creation of majority-minority districts in § 2 of the Voting Rights Act. Tilling also makes reference to Gingles, supra, in justifying his configuration of districts. In Gingles, the United States Supreme Court considered a challenge under § 2 of the Voting Rights Act to North Carolina’s multimember districting scheme. The Court set forth three preconditions to a § 2 challenge alleging that multimember districts impair minority voters’ ability to elect representatives of their choice: 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 50-51, 106 S.Ct. at 2766-67 (emphasis in original) (footnotes and citations omitted). Apparently, Tilling read the first precondition to require the creation of majority-minority districts wherever possible. However, the Supreme Court in Gingles limited these preconditions to challenges to multi-member districts: The claim we address in this opinion is one in which the plaintiffs alleged and attempted to prove that their ability to elect the representatives of their choice was impaired by the selection of a multi-member electoral structure. We have no occasion to consider whether § 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. We note also that we have no occasion to consider whether the standards we apply to respondents’ claim that multi-member districts operate to dilute the vote of geographically cohesive minority groups, that are large enough to constitute majorities in single-member districts and that are contained within the boundaries of the challenged multimember districts, are fully pertinent to other sorts of vote dilution claims, such as a claim alleging that the splitting of a large and geographically cohesive minority between two or more multimember or single-member districts resulted in the dilution of the minority vote. Id. at 46, n. 12, 106 S.Ct. at 2764, n. 12. Thus, Gingles’ preconditions are not applicable to the apportionment of single-member districts and claims of dilution of minority influence districts at issue here. Accord, Armour, 775 F.Supp. at 1052. Therefore, we can find nothing in Gingles which establishes a per se requirement for the creation of majority-minority districts. Finally, Defendants suggest that Armour, supra, mandates the creation of majority-minority districts. It is true that the court in Armour concluded that the division of a cohesive concentration of Black voters between two districts in Mahoning County was violative of § 2 of the Voting Rights Act and the fifteenth amendment. These determinations were made after the court conducted a detailed examination of the totality of the circumstances factors outlined in the legislative history with regard to Mahoning County and Youngstown. While the aggregation of Black voters into one district is an appropriate remedy under certain circumstances, Armour does not stand for the proposition that persons responsible for apportionment should create majority-minority districts wherever possible. Thus, we conclude that nothing in § 2 of the Voting Rights Act, Gingles, supra, or Armour, supra, mandates the drawing of majority-minority districts wherever there is a concentration of Black voters. B. Inadequacy of Defendants’ totality of circumstances analysis In addition to Tilling’s contention that federal statute and case law mandated the creation of majority-minority districts, he justified the Plan by stating that revised districts were necessary “to bring [the 1981] apportionment plan into conformity with the 1982 amendments.” Tilling Dep., Vol. 1, at 168. Thus, in essence, Tilling is asserting that the majority-minority configuration was necessary to remedy violations of the Voting Rights Act under the 1981 plan. However, violations of the Voting Rights Act are not to be assumed. The finding of a violation requires an in-depth analysis of the totality of the circumstances in the locality at issue. S.Rep. No. 417, 97th Cong., 2d Sess. 28-29 (1982) U.S.Code Cong. & Admin.News pp. 177, 205-207; Armour, 775 F.Supp. at 1053 (our inquiry does not focus on the black experience in the entire state but rather on the political and social reality local to the Mahoning Valley). Although Tilling stated that one of the reasons for the public hearings was to “establish for the record the totality of the circumstances in each urban area ...” Joint Trial Exhibits, Tab 13, at 33, we find the information in the record grossly inadequate in this regard. Key determinations in a totality of the circumstances analysis are whether racially polarized voting exists and the closely related issue of the extent to which minority candidates are elected in the jurisdiction. Gingles, 478 U.S. at 55, 106 S.Ct. at 2768-69. The Supreme Court in Gingles provided guidance on determining the whether racially polarized voting is present in a case. The Court noted that the district court relied principally on expert statistical evidence derived through extreme case analysis and bivariate ecological regression analysis on data from three different election years in the challenged districts. Id. at 52-53, 106 S.Ct. at 2767-68. These methods are standard in the literature for the analysis of racially polarized voting. Id. at 53, n. 20, 106 S.Ct. at 2767, n. 20. The degree of bloc voting which constitutes the threshold of legal significance varies from district to district. Id. at 55-56, 106 S.Ct. at 2768-69. However, a showing that a significant number of minority group members vote for the same candidates can establish minority bloc voting within the context of § 2. Id. at 56, 106 S.Ct. at 2769. Generally, white voting patterns that normally will defeat the combined strength of minority support and white “crossover” votes is legally significant white bloc voting. Id. In the present case, Tilling “concluded that there was significant racial bloc voting throughout the State of Ohio.... ” Tilling Dep., Def.Exh. 96, at 93. However, Tilling arrived at this conclusion without the benefit of regression analysis. Id. at 92. Instead, Tilling examined the votes for the minority representatives to the General Assembly in past elections to try to ascertain racial patterns of voting. Tilling Dep., Vol. I, at 37-39. Tilling admits that he did the analysis using 1990 census data which does not correspond directly to the 1981 districts. Id. at 38. Tilling did not reduce his calculations or conclusions to writing. Id. at 39. Tilling also examined the results of the primary in which Jesse Jackson ran. Tilling Dep., Vol. II, at 6. Again, he did not subject the data to any statistical analysis. Id. at 9. Tilling further contended that racial bloc voting existed in the districts in which black legislators were being elected with white crossover votes from districts with less than a majority of black voters. Tilling Dep., Vol. I, at 39. When asked specifically if the racial bloc voting in these districts was legally significant, Tilling could not give an unequivocal answer, stating merely that “given the opportunity there is a much higher percentage of black vote for black candidates than white vote for black candidates.” Id. at 40-41. However, Tilling acknowledged that blacks were elected from districts with as low as 35% black population. Id. at 177-78. Ultimately, Tilling increased the black voters in these districts despite the successful election of black legislators with substantial crossover white vote. It is disturbing that Tilling based his conclusions that there was racial bloc voting and subsequent revisions in the apportionment of voters on such a casual analysis of voting returns. He did not subject his data to statistical analysis or even memorialize his calculations and “findings” in writing. Given the guidance of the Supreme Court in Gingles with regard to legally significant racially polarized voting, we conclude that Tilling’s analysis does not rise to the level of proof of racially polarized voting. Another relevant factor is whether there is a significant lack of responsiveness on the part of elected officials to the particularized needs of the minority community. However, Tilling stated that he did not examine the voting record of any single representative to determine his responsiveness to the minority community. Id. at 185. Tilling’s information on this factor involved his review of legislators’ voting records in preparation for previous Senate campaigns. Id. at 179-181. He observed that the information was “part of my mental equipment as I began this process.” Id. at 180-81. Review of social and historical factors are also appropriate under a totality of the circumstances review. However, Tilling admitted that he did no studies of the communities at issue except to hold the public hearings. Tilling Dep., Vol. II, at 39. While a few relevant items can be sifted from the voluminous transcripts of the public meetings, there is a paucity of information on these factors in the record. Of the information available, much is anecdotal and seems to be culled from Tilling’s personal experience rather than from community sources. For example, when deposed on factors he took into account in his totality of the circumstances analysis, Tilling stated that “in the course of my years in the Senate I have had occasion to talk to many of the minority representatives about various practices that have influenced their ability to fully participate in the process_” Tilling Deposition, Def.Exh. 96, at 97-98. With respect to discrimination in education, Tilling stated that he had spent a year in the late 70’s on the Ohio General Assembly’s Joint Select Committee on School Desegregation and noted that schools in several of the urban areas in Ohio are under desegregation orders. Id. at 97. Tilling also testified that he was aware of the differences in employment figures for minorities and whites in Ohio. Id. While Tilling’s input on some of these issues could be useful in a totality of the circumstances review, we find that it, even in combination with a series of public meeting compressed into a two and a half week period, falls far short of the “searching practical evaluation of past and present reality” mandated by the legislative history- Accordingly, we find that no adequate totality of the circumstances analysis was performed by the Board. In the absence of such an analysis, there can be no reliable finding of a violation. In the absence of a violation, there was no legal justification for the Board’s “remedy” in the form of the wholesale creation of majority-minority districts. Without such a justification, the Board’s plan packs minority voters, with dilutive effects that violate the Voting Rights Act. CONCLUSION For the foregoing reasons, we conclude that there is no legal mandate or finding of a Voting Rights Act violation to justify Defendants’ creation of majority-minority districts wherever possible in the 1991 Apportionment Plan. Accordingly, the Board is ORDERED to reconsider the Plan. Unless it can show justification under the totality of the circumstances test for the present configuration, the Board must submit a revised plan to this court within 20 days of the date of this order. In the event that a revised plan is not received by this court within the time limit, further action will be taken by this court sua sponte. Because our analysis under the Voting Rights Act requires the Plan to be revised, we decline to address Plaintiffs’ claims under the United States Constitution at this time. This is consistent with the judicial preference for deciding cases without reference to questions arising under the Federal Constitution whenever possible. Hagans v. Lavine, 415 U.S. 528, 546, 94 S.Ct. 1372, 1383-84, 39 L.Ed.2d 577 (1974) (citing Siler v. Louisville & Nashville R. Co. q, 213 U.S. 175, 193, 29 S.Ct. 451, 455, 53 L.Ed. 753 (1909)). With regard to Plaintiffs’ claims under the Ohio Constitution, we note that these claims are before the Ohio Supreme Court in the case of Ferguson v. Voinovich, No. 91-1882. While this court is not required to abstain from these issues, Davis v. Mann, 377 U.S. 678, 690, 84 S.Ct. 1441, 1447-48, 12 L.Ed.2d 609 (1964), where parallel litigation is instituted in the state and federal courts, it is appropriate for the federal courts to deal with the federal issues and leave the state issues to the state court. We do note, however, that the Board majority claims adherence to the alleged federal mandate to create majority-minority districts wherever possible. Given that we now hold that there is no such mandate, we remove this as a possible defense in any subsequent or concurrent state proceedings. . The Supreme Court used the terms "racially polarized voting" and "racial bloc voting” interchangeably in Gingles. 478 U.S. at 52, n. 18, 106 S.Ct. at 2767, n. 18. The terms are also used interchangeably here. . The exigencies of the situation, which include satisfying deadlines, have required counsel for the parties to formulate and present their positions with commendable speed, and have similarly imposed upon this panel a mandate to record the conclusions reached as rapidly as possible. The opportunity of offering an analysis in depth of the thoughtful dissent (which, in fact, we have only seen in outline form) not being available, we refrain from offering a detailed reaction, observing simply that in our view such an analysis only becomes appropriate after an apportionment plan has been shown to have been prepared according to law. The present record is devoid of such a showing. Some response might, however, be helpful to the parties. First, we must caution against accepting some of the characterizations of the majority opinion by the dissent. For example, it observes, "My colleagues have ruled that the 1991 reapportionment of Ohio for the purposes of electing the Ohio General Assembly violates § 2 of the Voting Rights Act because the majority members of the apportionment created additional majority-minority voting districts in Ohio_” The dissent goes on to state, "Presumably, the Court holds that increasing the minority population in a district where a minority group is already able to elect a minority representative is per se packing and wasting minority votes.” The dissent further observes that "the majority apparently holds that the districts must be drawn in such a way that the black vote is maximized.’’ We made no such holdings. The thrust of the opinion is not to outlaw majority-minority districts nor to create "a favored race for voting purposes,” as the dissent suggests. Rather, the guiding lights are that there is no legal mandate under § 2 of the Voting Rights Act, Gingles, supra, or Armour, supra, to create majority-minority districts wherever possible. Furthermore, in the absence of a reliable finding of a violation of the Voting Rights Act, it cannot be used as justification for the wholesale creation of majority-minority districts. This highlights the divergent directions from which the majority opinion and dissent proceed. The dissent focuses only on the untested end result, whereas the majority opinion recognizes the vital importance of the process and the pitfalls which arise from a per se application of majority-minority districting, i.e., minority vote dilution can result from the concentration of minorities in districts. Proceeding from their respective approaches, the narrow holding of the majority opinion requires the resubmission of a plan properly premised, while the dissent would put this court in the position of a super-apportionment board — a status which on the basis of abundant authority we decline to occupy. Unlike the dissent, we purposely have not compared and contrasted the plan submitted by the Plaintiffs to the plan adopted by the majority of the Board. The function of this court at this stage of the proceedings is not to choose between two plans, but to measure the plan as adopted against federal law. As stated above, federal law cannot serve as the justification for the present plan. Unless, the Board can show such justification, it must proceed to develop a revised plan which complies with federal and state constitutional law. Figures represent the number of districts each county is entitled to based on the ideal district population of 109,567. Based on 1990 census information. Based on 1990 census information. . See Article XI, Section 2 of the Ohio Constitution. . Section 1 of Article XI of the Ohio Constitution provides that both major political parties will be represented by two General Assembly members participating in the apportionment process. The issue of which political party controls the process is then determined by the outcome of the last state election for the office of Governor, Auditor of State and Secretary of State conducted prior to the constitutional mandate to apportion the state in every year ending in the number one. In 1990 the last such state election, Governor George Voinovich and Secretary of State Robert A. Taft, both members of the Republican party, and State Auditor Thomas Ferguson, a member of the Democratic party, were elected. Thus, the Republican party has a majority involved in the apportionment process as dictated by the Ohio Constitution. .See Article XI, Section 2 of the Ohio Constitution.
DOWD, District Judge, dissenting: This case brings together a number of developments in Ohio political life. They include Ohio’s attempt by way of constitutional provisions to comply with the one man-one vote mandate of Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962), the ten year requirement to reapportion the Ohio General Assembly, a change in the demographics in Ohio, including a southward and westward shift in population, the change in the political control of the Ohio Apportionment Board from the Democratic Party to the Republican Party, the impact of the Voting Rights Act as amended in 1982, 42 U.S.C. § 1973, the recognition by both the Republican and Democratic members of the Apportionment Board of the desirability of creating more majority-minority legislative districts in Ohio, and the decision in the Armour v. State of Ohio, 775 F.Supp. 1044 (N.D.Ohio 1991) case. This case, filed on November 1, 1991, required the creation of a three judge panel and, in the context of the remedy sought by the Plaintiffs, prompt action in view of the filing deadline of February 20, 1992 for candidates seeking election to the Ohio General Assembly in the general election in November of 1992. The three judge panel, mindful of the time constraints, has endeavored to expedite the fact finding process and render a decision so as to avoid uncertainty about the mechanics of the 1992 election for the Ohio General Assembly. The central feature in this highly charged political controversy that typically accompanies the apportionment of a state for the purposes of electing the state’s legislative body is the question of whether the apportionment process should include recognition and consideration of the provisions of Section 2 of the Voting Rights Act. The Defendants answer that question in the affirmative and declare that the complicated procedure of apportionment of necessity included consideration of how to structure the 99 house districts in the urban counties of Ohio where the largest minority populations are located. The position of the Plaintiffs which include the two Democratic members of the apportionment board is less apparent. The Plaintiffs contend that the Apportionment Board did not make any fact findings that support its decision to create additional majority-minority districts and claim the creation of the additional majority-minority districts was contrary to law in the absence of such fact findings in the context of the “totality of the circumstances” test set forth in the legislative history that accompanied the adoption of the 1982 amendment to the Voting Rights Act and which gained additional recognition in the plurality opinion in Thornburg v. Gingles, 478 U.S. 30, 106 S.Ct. 2752, 92 L.Ed.2d 25 (1986). The Plaintiffs additionally claim the number of black voters was increased in a number of districts, contrary to law because the district was already represented by a black incumbent and thus the addition of the black voters constituted “packing” or “wasting” of those black voters. The Plaintiffs also claim, based on a study done with reference to the 1990 Ohio elections, that the number of “influence” districts have been decreased and that such a decrease involves a violation of the Voting Rights Act. In sum the Plaintiffs-Democrats contend that the Defendants-Republicans violated the Voting Rights Act by creating additional majority-minority voting districts in Ohio and also violated the Voting Rights Act by decreasing the number of “influence” districts. Additionally, Plaintiffs claim that the 1991 apportionment plan violates the due process provisions of the fourteenth amendment because the 1991 plan constituted partisan gerrymandering. The partisan gerrymandering claim fails for two reasons. First, I find an absence of proof. More importantly, in the absence of an actual election conducted under the 1991 plan, the issue of partisan gerrymandering is premature. Davis v. Bandemer, 478 U.S. 109, 106 S.Ct. 2797, 92 L.Ed.2d 85 (1986). The Plaintiffs also allege that the Defendants intentionally violated the fifteenth amendment. My colleagues have not addressed the constitutional claims because of the determination that the 1991 apportionment plan violates the Voting Rights Act. Again, I find a total absence of proof of an intentional violation of the fifteenth amendment. My colleagues have ruled that the 1991 apportionment of Ohio for the purposes of electing the Ohio General Assembly violates § 2 of the Voting Rights Act because the majority members of the apportionment board created additional majority-minority voting districts in Ohio, and have ordered the five members of the apportionment board to revise the plan within 20 days without giving any accurate guidance as to how that process is to be accomplished within the structure of the Ohio constitution or for that matter within the mandates of the Voting Rights Act. The majority opinion provides a very limited factual background critical to a proper analysis of this case. I am of the opinion that in evaluating an apportionment plan, the district court should be careful to make “detailed findings of facts ...” both to insure a proper analysis of the plan at the district court level and to assist the Supreme Court should appellate review become necessary. Westwego Citizens for a Better Government v. Westwego, 872 F.2d 1201, (5th Cir.1989). If one of my fellow judges on this panel had agreed with my position and I had the opportunity to write the Court’s opinion, I would have made the fact findings that are attached as Appendix 2 to this dissent. From those fact findings I have distilled a summary of major fact findings which are hereafter incorporated in the body of this dissent. Article XI of the Ohio Constitution provides a detailed plan for the decennial apportionment of the Ohio General Assembly. The detailed plan calls for the creation of ninety nine separate single member districts for the Ohio House of Representatives and thirty three single member seats in the Ohio Senate. Appendix 1 is a study of the eighty eight Ohio counties setting forth the number of lower house districts allocated on a county by county basis with an indication of the total population and black population of the eighty eight counties. Bernard Grofman, recognized as a national expert on apportionment issues as they relate to minority interests, has declared in a recent publication, Bernard Grofman, Voting Rights, Voting Wrongs; The Legacy of Baker v. Carr, 1990 Twentieth CentuRy F. Paper. 31: One approach to eliminating or reducing gerrymandering is through statutory or state constitutional provisions that strictly implement formal criteria such as compactness, equal population, and maintenance of the integrity of political subunits. My study of the 1991 apportionment process for Ohio in the context of the Ohio Constitutional provisions indicates that the Ohio Constitution and the process for the 1991 apportionment is a mirror of Grof-man’s recommended approach. SUMMARY OF MAJOR FACT FINDINGS In the interest of brevity and convenience, I have highlighted the fact findings that I submit are most critical to a proper analysis of this case. 1. Article XI of the Ohio Constitution controls the apportionment process for the legislative body for Ohio, the General Assembly, and mandates 99 single member districts for the House of Representatives and a 33 member Senate comprised of three contiguous House Districts. 2. The apportionment process takes place in Ohio every ten years in the year in the decade ending in the number 1 and in reliance on the most recent federal decennial census information. The 1991 apportionment plan for the Ohio General Assembly relies on the 1990 census data. 3. The Ohio Constitution requires that the apportionment process be accomplished on a county by county basis and requires compact districts. Ohio has 88 counties. The first requirement in the apportionment process is to determine the ideal number for a district by dividing the entire state population by 99 and for 1991 this process produced an ideal number of 109,567. Next, single member county districts are mandated in the event the county’s total population is with 5% of the ideal number. Four Ohio counties, Warren, Wood, Allen and Columbiana, fell within that computation for 1991. The apportionment board may also create single member districts for counties with a total population that is within 10% of the ideal number. The 1991 plan includes in that latter category an additional three counties, Fairfield, Wayne and Ashtabula. Next, the apportionment board is directed to create districts beginning with the most populous counties with the mandate that where a county has population in excess of the number needed for a single member district, that only one district within the county that is entitled to more than one district may spill over into an adjoining county or counties. By way of example, Cuyahoga County, the most populous county, is entitled to 12.88 districts. Twelve of the districts must be contained wholly within Cuyahoga County and the 13th district will, of necessity, “spillover” into an adjoining county. Twenty six Ohio counties are entitled to at least one district within the county. The remaining 62 counties have a population less than 90% of the ideal number for a district and therefore must be combined with other counties to create a house district. 4. The apportioning process for the Ohio General Assembly is done by two persons appointed from the Ohio General Assembly with each of the two major political parties represented. The remaining three are the elected governor, auditor of state, and secretary of state. In 1971 and 1981, the apportioning process was controlled by a majority from the Democratic party and in 1991 by a majority from the Republican party. 5. In addition to the Ohio constitutional provisions that control apportionment, Section 2 of the Voting Rights Act as amended in 1982 and recently interpreted in the Armour case that struck down the 1981 apportionment as it related to Mahoning County, was considered by the members of the apportioning board in 1991. 6. The black minority population in Ohio is predominantly located in its six major urban counties of Cuyahoga (24.9%), Franklin (15.9%), Hamilton (10.9%), Montgomery (17.7%), Summit (11.9%) and Lucas (14.8%). Those six counties account for approximately forty four of the ninety nine house districts and are presently represented by 11 minority representatives even though the total black population of the six counties (according to 1990 census figures) is only 19.1% of the total population of the six counties, i.e., 915,628 of a total population of 4,790,965. As indicated in the 1990 census, the total population of Ohio is in excess of 10 million people, and with only a modest change from the 1980 census. Ohio experienced a net gain in population of approximately 50,000 people. However, there were significant population shifts within the state. Specifically, there occurred a substantial shift in population from the Northeast quadrant of the state to the Central and Southwest portions of the state, particularly to Franklin, Delaware, Union and Madison counties. There also occurred a population shift from Cincinnati and Hamilton County to Butler, Clermont and Warren counties. Cuyahoga County lost one entire house district in population (109,000 people) while Franklin County gained one entire house district. Franklin County replaced Hamilton County as the second most populous county in the state. There were also significant population shifts from the inner cities to the suburbs. 7. As a result of major population shifts within counties and from the inner city to the suburbs, the majority of the 1981 configured districts in the six major urban counties had to be reconfigured to meet the population requirements of Article XI, Section 3 of the Ohio Constitution. 8. By way of summary, the 1991 Apportionment Plan creates four (4) majority-minority districts in Cuyahoga County with a black voting age population of 58.36%, 61.41%, 65.13% and 63.42%. The prior 1981 districts had only three (3) majority-minority districts with a black population of 74.-80%, 90.05%, and 94.67%. The 1991 Minority Plan proposed by Plaintiffs Ferguson and Quilter similarly has four majority-minority districts with black voting age populations of 60.18%, 63.71%, 66.67% and 67.08%. The 1991 Apportionment Plan also creates a strong influence district in Cuyaho-ga County of 40.61% compared to an influence district of only 26.46% in the 1991 Minority Plan proposed by Plaintiffs Ferguson and Quilter. The 1991 Apportionment Plan has one (1) majority-minority district in Franklin County at 50.30% black voting age population where none existed in the 1980 apportionment. The 1991 Apportionment Plan also has a strong influence district at 44.31%. By way of comparison, the 1991 Minority Plan proposed by Plaintiffs’ Ferguson and Quilter also has one (1) majority-minority district at 50.60% black voting age population and one influence district at 46.40%. Significantly, part of the rationale in the 1991 Apportionment Plan for increasing relative black percentages in Franklin County house districts from the 1981 plan was to create a Senate influence district in Franklin County. The 1991 Apportionment Plan creates two (2) majority-minority districts in Hamilton County where only one existed in the 1981 apportionment. The majority-minority districts in the 1991 Apportionment Plan have black voting age populations of 52.-60% and 56.83%. By way of comparison, the 1991 Minority Plan proposed by Plaintiffs Ferguson and Quilter also reflects one (1) majority-minority district at' 57.91%. The 1991 Apportionment Plan also reflects an influence district of 21.58% compared to 19.55% in the 1991 Minority Plan proposed by Plaintiffs Ferguson and Quilter. The 1991 Apportionment Plan reflects one (1) majority-minority district in Montgomery County, where none existed in the 1981 apportionment. The 1991 Apportionment Plan has a district with a black voting age population of 50.70% and an influence district at 29.23%. By way of comparison, the plan presented by Plaintiffs Ferguson and Quilter has no majority-minority districts and two influence districts at 36.20% and 45.26%. Plaintiffs challenge no districts in Montgomery County. The 1991 Apportionment Plan reflects a slight increase in black population in House District 42, in Summit County, currently represented by minority incumbent Representative Sykes. The increase is from 35.-40% to 43.26% black population. By way of comparison, the 1991 Minority Plan proposed by Plaintiffs Ferguson and Quilter also increases the black population in Representative Sykes’ district from 35.40% to 47.20%. Plaintiffs challenge no districts in Summit County. The 1991 Apportionment Plan reflects an increase in black population in House District 45, in Lucas County, which is comparable to the district currently represented by minority incumbent Representative Casey Jones. The black voting age population in Jones’ district was increased to 47.-65% compared to 44.98% in the 1991 Minority Plan proposed by Plaintiffs Ferguson and Quilter. The black populations in House Districts 45 and 47 in the 1991 Apportionment Plan are substantially similar to the 1991 Apportionment Plan proposed by Plaintiffs Ferguson and Quilter. In Stark County, there is not sufficient black population to form a majority-minority district. The districts in Mahoning County are configured pursuant to the order of the Federal District Court in Armour v. State of Ohio, 775 F.Supp. 1044 (N.D.Ohio 1991). Overall, there are eight (8) majority-minority districts in the 1991 Apportionment Plan compared to only four (4) in the 1981 apportionment and six (6) in the 1991 Minority Plan proposed by Plaintiffs Ferguson and Quilter. In the 1991 Apportionment Plan, there are twenty (20) districts with over 10% black voting age population, which is the same number as in the 1991 Minority Plan proposed by Plaintiffs Ferguson and Quilter. 9. In drafting the 1991 Plan, Mr. Tilling worked closely with the leaders of various minority groups in Ohio. Further, minority groups had substantial input in the creation of the final plan that was submitted to the state legislature. 10. Proposed apportionment plans were submitted by numerous minority special interest groups. Among those submitted, were the plans from Black Elected Democrats of Ohio (BEDO) and the Ohio Conference of Branches of the NAACP. On September 30, 1991, the Apportionment Board met to hear testimony from the various proponents of the proposed plans. On October 1, 1991, the Apportionment Board met again to consider adoption of a final plan of apportionment. The meeting was recessed from time to time to permit discussions among representatives of BEDO and the NAACP and Mr. Tilling to attempt to reach a consensus concerning minority districts. These discussions were initiated by Mr. Tilling after representatives of BEDO and the NAACP failed to reach a consensus regarding minority districts. Mr. Tilling contacted Congressman Louis Stokes to attempt to bring the minority groups together. Mr. Tilling initiated these discussions since he knew that minority voting issues would be the focal point of the apportionment process. 11.During the public hearing conducted on October 1, 1991, BEDO and the NAACP reached a consensus regarding the establishment of minority districts in Cuya-hoga County in the final 1991 apportionment plan. The NAACP accepted BEDO’s proposal for Cuyahoga County, establishing four majority-minority districts and one influence district in Cleveland. The NAACP’s original plan established five majority-minority districts in Cuyahoga County. The plan originally submitted by the Board also called for five majority-minority districts in Cuyahoga County. On October 1, 1991, BEDO offered the consensus position with regard to the districts in Cuyahoga County as an amendment to the BEDO plan (referred to herein as the “BEDO Amendment”). The BEDO Amendment was also offered as an amendment to the plan proposed by the majority of persons responsible for apportionment. The amendment was accepted by the Apportionment Board and incorporated in the final 1991 Apportionment Plan. 12. At the meeting of October 1, 1991, Dana Mattison and Senator Jeff Johnson, a minority Senator from Cuyahoga County, endorsed the BEDO Amendment creating four majority-minority districts. Floyd Johnson, on behalf of the NAACP, endorsed the entire 1991 Apportionment Plan. The BEDO Amendment was endorsed by William Mallory, President of BEDO and Congressman Stokes. The Ohio Conference of Branches of the NAACP endorsed the 1991 Apportionment Plan in its entirety. 13. The 1981 apportionment plan for Ohio created 24 districts with a ten percent (10%) or more minority voters. Two of those districts were in Mahoning County and the Armour decision required that the two districts be realigned to place all minority voters in one of the two districts. The 1981 apportionment plan also created as a part of the 24 districts, four majority-minority districts, three in Cuyahoga County with a percentage of blacks as high as 94.67% and one in Hamilton County with a percentage of black voters fixed at 53.2%. The 1991 apportionment plan created eight majority-minority districts and the number of districts with at least a 10% minority voting population is 20. In sum, the 1991 apportionment plan, in comparison to the 1981 plan, has increased the number of majority-minority districts by four and reduced the number of districts with 10% or more black voters by four. See Appendix 1. History of Apportionment Law A. Introduction In reviewing an apportionment plan developed by a legislature, a district court is guided by a number of constraints. First, the district court must only determine whether that plan is acceptable under the prevailing law, and not whether another plan would be more advantageous to the parties at interest. Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964). Second, deference is to be extended to a apportionment plan advanced by the legislature. Terrazas v. Clements, 537 F.Supp. 514 (N.D.Texas 1982). It is with these considerations in mind that I evaluate the Plaintiffs’ case. B. One Man One Vote The cases that first spoke to the requirements of apportioned voting districts focused on the ideal that each citizen should have an equal voice in his or her government. The way in which most citizens are heard in their government is through their vote on election day. Thus, in Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962), the Court held that each citizen’s vote must carry the same weight in determining the outcome of a political election. The holding in Baker has come to be known as the “one man, one vote” rule, and has been followed ever since. As the Court in Gaffney v. Cummings, 412 U.S. 735, 741, 93 S.Ct. 2321, 2325, 37 L.Ed.2d 298 (1973) noted: ‘The requirement of Art. I § 2 of the Constitution, that representatives be chosen ‘by the People of the several states,’ mandates that one man’s vote in a congressional election is to be worth as much as another’s.’ (iquoting Wesberry v. Sanders, 376 U.S. 1, 8, 84 S.Ct. 526, 530, 11 L.Ed.2d 481 (1964). C. Voting Rights Act § 2 In order to give effect to the “one man one vote” principle, Congress enacted the Voting Rights Act. 42 U.S.C. § 1973. In 1982, one year after the Democratic party controlled 1981 Apportionment Plan was adopted, § 2 was amended to eliminate the requirement of evidence of invidious, intentional discrimination in order to prove a voting Rights Act violation. In Mobile v. Bolden, 446 U.S. 55, 100 S.Ct. 1490, 64 L.Ed.2d 47 (1980), the Court held that disproportionate effect, alone, was insufficient to prove unlawful vote dilution. In response to cases such as Mobile, Congress passed in 1982, an amendment to § 2 of the Voting Rights Act that removed the requirement of invidious, intentional discrimination. Garza v. City of Los Angeles, 918 F.2d 763 (9th Cir.1990). As my colleagues point out, the focus now is on the results of the apportionment plan. In evaluating the results of the plan, the court must take into account not only the deviations from the acceptable norm for population distribution, but also the extent of the deviation. Judicial apportionment plans have been held to very high standards, finding that even minor deviations violate the Voting Rights Act. Legislative apportionment plans have been afforded more leeway. Generally, legislative apportionment is guided by the “under 10% deviation” rule, finding that population deviations from the ideal norm that are less than 10% are de minimis. Connor v. Finch, 431 U.S. 407, 97 S.Ct. 1828, 52 L.Ed.2d 465 (1977); and Wyche v. Madison Parish Police Jury, 635 F.2d 1151 (5th Cir.1981). See eg. Gaffney v. Cummings, 412 U.S. 735, 93 S.Ct. 2321, 37 L.Ed.2d 298 (1973) (7.83% deviation from population norm was acceptable); and White v. Regester, 412 U.S. 755, 93 S.Ct. 2332, 37 L.Ed.2d 314 (1973) (9.9% deviation acceptable). ANALYSIS Voting Rights Act The majority begins its analysis of the case by noting that the Plaintiffs have alleged that the 1991 Plan violates the Voting Rights Act by impermissibly considering race in the drawing of district lines, serving to dilute the minority vote in the process. Before focusing on the 1991 Plan, however, the majority turns its attention to the merits of the 1981 Plan. The majority opinion argues that the 1991 Apportionment Plan must be rejected because the majority board, and namely Mr. Tilling, did not prove that the 1981 Apportionment Plan violated the Voting Rights Act. Specifically, the majority declares that under the totality of the circumstances test, it was not demonstrated that the 1981 plan violated the Voting Rights Act. The majority reasons that absent such a showing, the majority board was not entitled to apportion the state. The majority opinion appears to declare that the Voting Rights Act requires that there be an established violation before an apportionment, board is entitled to apportion a district with a significant black population. This argument places the cart before the horse because the totality of the circumstances test, derived from the Voting Rights Act, is a tool that is to be utilized by the district court in evaluating the plan before it, and not as a prerequisite to redistricting. In Reynolds v. Sims, the court held that the court’s purpose in apportionment cases is not to determine which plan would be most appropriate in terms of fair and equal redistricting, but rather whether the plan before it violates the Voting Rights Act. Since I do not believe that the 1991 Plan violates the Voting Rights Act, I am of the view that it should be implemented. While the majority opinion does not directly evaluate the 1991 Plan, it does criticize the process used by the majority board in developing the 1991 Plan. The majority opinion claims that Mr. Tilling’s recommendation to create majority-minority districts whenever possible was inappropriate and not mandated by the Voting Rights Act. In my view, a § 2 of the Voting Rights Act as amended in 1982 and as interpreted by Gingles and Armour sends an unambiguous signal that a apportioning process must consider the impact of the apportioning on the minority rights of the voting persons. The majority opinion is ambivalent when one considers the fact that the Plaintiffs Ferguson and Quilter advanced their plan for apportionment which created an additional two majority-minority districts as opposed to the additional four such districts created by the adopted plan. Rather than focus on the process used by the majority in arriving at the 1991 Plan, I submit that the Court should be concentrating on the result. It is only when the creation of majority-minority districts serves to dilute the minority vote that the Voting Rights Act is violated. The facts do not support the majority’s conclusion that the 1991 Plan violates the Voting Rights Act. The majority’s determination that the Defendant members of the majority board have been unable to demonstrate that the Voting Rights Act mandates the redistricting found in the 1991 Plan omits several important observations. The Court completely ignores the fact that there were substantial population shifts in the state of Ohio since 1981. Based on the total population as calculated by the 1990 census, the ideal district population was 109,567, and the allowed range was between 104,089 and 115,045. Twenty seven of the forty four districts in the six large urban counties, as defined by the 1981 Apportionment Plan, did not fall within the 5% deviation specified in the Ohio Constitution. Specifically, nine districts in Cuyahoga County, seven districts in Hamilton County, six districts in Franklin County, three districts in Montgomery County, and two districts in Lucas County, had to be reconfigured because of the population shifts subsequent to the 1981 apportionment. An apportionment board has an obligation to apportion when the districts do not meet the population requirements based on the total population of the state divided by the number of districts designated in the state’s constitution. Garza v. City of Los Angeles, 918 F.2d 763 (9th Cir.1990). Left uncorrected, population shifts can, and I believe would in this case, result in a situation where the vote of one individual in one part of the state is of unequal weight as the vote of another individual located elsewhere in the state. That is why in Garza, the court held that the legislature has a duty to apportion when substantial population shifts occur in order to avoid a Voting Rights Act violation, and that is why I believe that apportionment on a grand scale was warranted and, indeed, necessary in this instance. The majority is also critical of the fact finding process engaged in by Mr. Tilling. Specifically, the majority takes issue with Mr. Tilling’s determination that racial bloc voting existed under the 1981 Plan. The majority indicates that Mr. Tilling did not engage in bivariate ecological regression analysis. Again, I respectfully submit that it was not the duty of the majority board to find racial bloc voting in order to justify the 1991 Plan. The majority also discounted Mr. Tilling’s findings of lack of responsiveness to the black community. The majority claims that his evidence is mostly “anecdotal ... rather than from community sources.” The record indicates otherwise. Mr. Tillin