Jeffers v. Tucker (839 F. Supp. 612, 1993)

RICHARD S. ARNOLD, Chief Circuit Judge.

The defendants in this voting-rights case have moved for summary judgment, arguing that plaintiffs have not met an essential element of their ease. They also argue that the plaintiffs previously' settled the case with them and that this bars the plaintiffs’ chailenge to the redistricting plan; We reject both arguments.

I.

In a previous opinion addressing the 1981 Arkansas Apportionment Plan, we held that the then-impending 1991 Arkansas Apportionment Plan would not go into effect until 60 days after the Apportionment Board had adopted it, so that the Court could entertain “any challenge by the plaintiffs in this case to such plan.” Jeffers v. Clinton, 740 F.Supp. 585, 602 (E.D.Ark.1990), appeal dismissed, 498 U.S. 1129, 111 S.Ct. 1096, 112 L.Ed.2d 1200 (1991). Plaintiffs took advantage of this ruling to challenge the 1991 Plan, arguing that it violated Section 2 of the Voting Rights Act, 42 U.S.C. § 1973. See Jeffers v. Clinton, 812 F.Supp. 907 (E.D.Ark.1993). The defendants now have moved for summary judgment against the challenge; • brought by one group of plaintiffs, to the 1991 Plan for Eastern Arkansas. They argue that the plaintiffs have not met one of the preconditions for showing that the 1991 Plan violates the Voting Rights Act in Eastern Arkansas, an area known as the Delta.

The 1991 Plan for the Delta establishes four House districts and one Senate district with black-majority voting age populations (“VAP”). These regions have a black VAP of at least 60%, so that African-Americans will constitute a “super-majority” in those districts. Plaintiffs claim that this dilutes their voting strength. Specifically, it concentrates or “packs” African-Americans into too few districts, thus “minimiz[ing]'the total number of districts in which black voters can select their candidate of choice.” Voinovich v. Quilter, 507 U.S.-,-, 113 S.Ct. 1149, 1153, 122 L.Ed.2d 500 (1993). The Supreme Court has recognized that “ ‘[djilution of racial minority group voting strength mhy be caused ... [by] the concentration of blacks into districts where they constitute an excessive majority.’” Id. at -, 113 S.Ct. at 1155 (quoting Thornburg v. Gingles, 478 U.S. 30, 46 n. 11, 106 S.Ct. 2752, 2764 n. 11, 92 L.Ed.2d 25 (1986)). The plaintiffs ask us to remedy this by ordering the establishment of one more House district and one more Senate district in the Delta. Although this would give African-Americans in most of the black-majority districts in the Delta a bare majority rather than a super-majority, it would increase the number of those districts and, possibly, the number of minority-preferred candidates elected.

Section 2 of the Voting Rights Act prohibits legislation that dilutes the voting strength of the minority group. To find a violation of this provision, we must .first find that the plaintiffs have met the three “necessary preconditions” set forth in Thornburg v. Gingles, 478 U.S. at 50-51, 106 S.Ct. at 2766. The minority group must show that it is large-enough and compact enough to constitute a majority in a single-member district, that it is a politically cohesive group, and that the white majority votes as a bloc so that it usually defeats the minority’s preferred candidate. The defendants argue that the plaintiffs have not met the first of these factors. They say that the African-American population is not compact, and therefore the additional black-majority, single-member districts the plaintiffs seek cannot be reasonably compact and contiguous.

To show this, the defendants submitted an affidavit of John K. Wildgen, Ph.D. He used the figures from the plaintiffs’ plan, setting the lines of the various voting districts and the percentage of African-Americans in them, to draw maps of their proposed districts. Interpreting his. maps, he declares that he “cannot verify” the contiguity and integrity of the plaintiffs’ proposed additional districts. Affidavit of John K. Wildgen, Ph. D., at 2. It is true that some of the proposed districts shown in Dr. Wildgen’s maps look noncontiguous. This proves, the defendants argue, that the black population in the area is not sufficiently compact and contiguous to meet the first precondition for showing a Voting Rights Act violation.

Summary judgment is appropriate when “there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). Parties opposing the grant of summary judgment must produce evidence tending to establish the essential elements of their case, Celotex v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986), and cannot rely only upon general assertions that genuine issues of fact remain. Fed.R.Civ.P. 56(e); Lujan v. National Wildlife Federation, 497 U.S. 871, 885, 110 S.Ct. 3177, 3187, 111 L.Ed.2d 695 (1990). However, the facts, and inferences drawn from them, “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, 993, 8 L.Ed.2d 176 (1962) (per curiam).

Even though some of the districts drawn by Dr. Wildgen appear not to be compact or contiguous, we cannot grant summary judgment to the defendants on the basis of Dr. Wildgen’s work, because we must construe the facts in favor of the non-movants, the plaintiffs. ■ The plaintiffs contest Dr. Wild-gen’s maps, saying that they do not accurately reflect the plaintiffs’ plan, because some of the non-contiguities Dr. Wildgen found are not really there. Affidavit of Vickie Robertson 1-2. We agree with the plaintiffs that material questions remain about whether Dr. Wildgen’s interpretation of the proposed districts accurately reflects the plaintiffs’ proposal. The flaws he indicates include gaps between areas that are part of one district, “colonies” that are entirely separated from the district of which they are a part, and enclaves within one district that are part of another district. All of these, if true, would indicate noncontiguous or noneompact areas.

Specifically, Dr. Wildgen points to, and the plaintiffs’ expert, Vickie Robertson, disputes, that the plaintiffs’ plan has these problems: in House District 72, a gap in the Monroe .County district; in House District 74, an “isolated colony” not adequately connected to the rest of the Crittenden County district, and enclaves within enclaves in Forrest City (St. Francis County); in House District 75, enclaves in both'Phillips and Lee Counties; and in Senate District 7, “isolated blocks” in Chicot County and West Helena, and enclaves in Phillips County. Wildgen Affidavit 3-5; Robertson Affidavit 1-2. In addition, Dr. Wildgen points to enclaves in Phillips County in District 72,. and Ms. Robertson avers that these were intentionally included in her plan. Dr. Wildgen also finds in Senate District 22 a “virtual enclave” in Crittenden County, which seems to be a one-block corridor connecting parts of the district. Ms. Robertson states that a corridor cannot be considered an enclave, and that this corridor is similar to some of those in the defendants’ own-plan. Finally, Ms. Robertson has not replied to Dr. Wildgen’s finding of “suspicious looking links in Mississippi County, and scattered holes in Lee and St. Francis Counties” in Senate District- 22. Although the plaintiffs have not yet shown that these problems do not exist, they dispute the accuracy of Dr. Wildgen’s claims.

In his second affidavit, dated June 30, 1993, Dr. Wildgen declares that the plaintiffs’ expert, Ms. Robertson, agreed at a June 28, 1993, meeting that there were people who were double-counted in the population estimates in plaintiffs’ proposed Senate District 7. Dr! Wildgen also declares that Ms. Robertson had reconsidered her declaration in her affidavit with respect to possible enclaves in Senate District 7, and that she said shfe had revised the plaintiffs’ plan to remedy this. He also avers that the plaintiffs claimed to have revised their plan, correcting the gap he had found in Monroe County in House District 72 by adding a corridor, correcting the enclave within the enclave in House District 74 (Forrest City), and correcting other enclaves in House Districts 72, 74, and 75.. Affidavit of John K. Wildgen (June 30, 1993), at 2-3. That plaintiffs have made these corrections to their plan means, the defendants say, that the plaintiffs have admitted that Dr. Wildgen’s first affidavit, finding non-contiguities in many of the districts, was substantially true. It is now undisputed, the defendants argue, that the noncontiguities claimed by Dr. Wildgen actually existed in plaintiffs’ original plan for House Districts 72, 74, 75, and Senate District 7.

We thus have before us a series of highly specific factual disputes. Defendants are right in pointing out that plaintiffs have not, by affidavits, cleared up all of the objections to their proposed districts. We certainly cannot say, however, as a matter of law, that none of the districts now tentatively proposed by plaintiffs would be sufficiently compact and contiguous'. Moreover, the plaintiffs may be able, at trial, to correct at least some of the problems remaining with their proposal. In Jeffers v. Clinton, 730 F.Supp. 196, 208 (E.D.Ark.1989), aff'd mem., 498 U.S. 1019, 111 S.Ct. 662, 112 L.Ed.2d 656 (1991), we allowed the plaintiffs, even after trial, to correct their proposed plan by eliminating an “island” within one district.

For the reasons given above — and particularly because of the fact-intensive and specific nature of the information needed to determine district lines and population percentages — we believe that material issues of fact remain to be resolved.

II.

The defendants also ask us, in effect, to reconsider our recent holding, in Jeffers v. Clinton, 812 F.Supp. 907 (E.D.Ark.1993), that no settlement agreement precluded the plaintiffs’ challenges to the 1991 Arkansas Apportionment Plan. We are still convinced that, as a matter of law, there was no settlement agreement.

A.

In response to plaintiffs’ challenge to the Delta portion of the Plan, the defendants moved for summary judgment in February 1992. They argued that plaintiffs were es-topped to challenge the 1991 Plan because the plaintiffs’ attorney, P.A. Hollingsworth, had settled the ease by agreeing with the Plan for the Delta. We denied summary judgment. We said that material questions of fact existed whether Mr. Hollingsworth had settlement authority, and we held that there was no settlement agreement as a matter of law. Jeffers v. Clinton, 812 F.Supp. at 909-10.

The parties later submitted pre-trial memoranda-stating the issues remaining to be tried. Despite the Court’s ruling, the defendants, in their pre-trial submissions, renewed their argument that the plaintiffs had settled their case with the Board as to the 1991 Plan for the Delta. At the pre-trial conference on June 23, 1993, the Court questioned the defendants’ attorney, Tim Humphries, about this. Mr. Humphries’s response amounted to1 a request for reconsideration, and we agreed that we would issue this clarifying order.

Before turning to the defendants’ arguments, we observe that this Court has the authority to grant summary judgment against the movant even when the non-movant has not made a cross-motion for summary judgment. Johnson v. Bismarck Public School Dist., 949 F.2d 1000, 1004-05 (8th Cir.1991); Burlington Northern v. Omaha Public Power Dist., 888 F.2d 1228, 1231 n. 3 (8th Cir.1989). This is because “[w]hen there has been a motion but no cross-motion, the judge already is engaged in determining whether a genuine issue of -material fact exists and the parties have been given an opportunity to present evidence designed either to support or refute the request for the entry of summary judgment.” 10A Wright, Miller, & Kane, Federal Practice and Procedure § 2720, at 29 (2d ed. 1983). In this case, we are satisfied that the defendants had.adequate opportunity to try to show that the plaintiffs were not entitled to summary judgment as a matter of law and that there was a genuine issue of fact left in the case. See id. at 34; Burlington Northern, .supra.

The defendants first argue that this case resembles Moore v. Beaufort Co., North Carolina, 936 F.2d 159, 160 (4th Cir.1991). In Moore, the plaintiffs had claimed that the Board of County Commissioners violated § 2. The parties entered into settlement negotiations, and the defendants then refused to carry out the agreed-upon terms. Id. at 160-61. The plaintiffs sued to enforce the settlement. The defendants argued that there was no settlement, but the court disagreed. Id. at 162-63. The court also held that the defendants’ attorney had actual and apparent authority to settle the case. Id. at 163-64. In reaching this conclusion, the court said that the “general rule is that counsel of record have the authority to settle litigation on behalf of their client.” Id. at 163 (citation omitted). But, as we stated in our earlier opinion, “Arkansas law requires attorneys to obtain specific authority before entering into settlement agreements on behalf of their clients.” Jeffers v. Clinton, 812 F.Supp. at 909 (citing McKenzie v. Boorhem, 117 F.Supp. 433, 435 (W.D.Ark.1954)).

Moreover, our holding in the Jeffers case does not put us at odds with the Fourth Circuit; the two cases are easily distinguished. First of all, here, but not in Moore, the defendants recognized and reiterated the plaintiffs’ right to challenge the 1991 Plan. Jeffers v. Clinton, 812 F.Supp. at 909. Moreover, the agreement upheld in Moore was made in the context of settlement negotiations, in which the new plan was developed solely to resolve the litigation. Id. at 160-61. This was not the case here, where the 1991 Plan was developed not as a settlement to the Jeffers litigation, but because, redistricting is done in Arkansas after, each census, whether or not there is litigation. Furthermore, in Moore, the settlement terms were written, first in a letter and second in a draft consent judgment. Id. at 161. This was not the case in Jeffers. Thus, the Fourth Circuit’s holding that there was apparent and actual authority to settle the case in Moore was reached in' a very different situation. For this reason, that ruling does not affect our holding that material facts remained unresolved whether Mr. Hollingsworth was authorized to settle Jeffers.

In any case, whether Mr. Hollingsworth had authority to settle on behalf of the plaintiffs is not the main point here. Whether or not he had such authority, he did not settlé this case. We kept open the period to challenge the 1991 plan so that we could hear “any challenge” the plaintiffs wished to bring. Jeffers v. Clinton, 740 F.Supp. at 602. And, as we have said, both sides referred to this several times during the October 1991 hearings. Jeffers v. Clinton, 812 F.Supp. at 909. This is the primary reason for our holding, as a matter of law, that there was no settlement agreement. Id. at 910. In addition, the defendants stipulated with the plaintiffs that “[t]he parties agree the 60 days in which plaintiffs have to challenge the Board’s plan begins as of October 29,1991.” Stipulation (Oct. 30,1991), at 2. In our view, if any agreement was reached, it was an agreement that the plaintiffs retained their right to challenge the 1991 Plan.

The defendants argue, however, that although Mr. Hollingsworth objected to district lines or population percentages, he never contested what the' plaintiffs now challenge, the number of Senate or House black-majority districts to be created in the Delta. Therefore, they argue, there was an agreement on the number of districts. We disagree. The second proposition does not flow from the first. Mr. Hollingsworth need not have presented to the Board of Apportionment every potential objection later to be raised in court. His not having done so does not prove that a settlement agreement was reached, particularly when the defendants agreed on the record that voting on the plan would not prejudice “any rights of appeal that you [plaintiffs] might have on any issue.” Jeffers v. Clinton, 812 F.Supp. at 909 (quoting State of Arkansas Board of Apportionment Hearing, October 11, 1991, at 36). Likewise, the defendants’ having sat “side by side” with plaintiffs when drafting portions of the 1991 Plan, and their working out some differences of opinion on the Delta part of the plan “in a mutually agreeable manner,” Defendants’ Pre-Trial Memorandum (June 7, 1993), at 2, 11, is simply not evidence of a settlement on this issue.

B.

Both our prior opinion on the settlement-agreement question, and, so far, this opinion, are premised on defendants’ arguments that “[o]n-the-record statements and testimony of Mr. Hollingsworth ... demonstrate that the ... plan represents a compromise agreement____” Defendants’ Brief in Support of Motion for Summary Judgment (Feb. 13, 1992), at 17; see also id. at 20. That is, until now, the defendants argued that the alleged settlement was reached during the Board of Apportionment’s hearings on October 4 and 11, 1991, before its adoption of the 1991 Plan. At the June 23 pretrial conference, however, the defendants changed their argument. They said that they had settled the case with Mr. Hollingsworth at some time other than during the hearings. Nevertheless, the defendants have not moved for summary judgment on this question; they have submitted no affidavits or other documents tending to show that there was an off-the-record settlement of this case. Instead, the defendants’ position appears to be,.simply, that material facts about the claimed settlement agreement remain to be tried.

We do not agree. We have ruled, and now reaffirm, that “as a matter of law ... there was no settlement agreement” between the parties in this case. Jeffers v. Clinton, 812 F.Supp. at 910. No affidavit attesting to a handshake agreement between Mr. Hollingsworth and the defendants or their attorney could alter our ruling that there was not a settlement agreement, when both parties so clearly stated on the record that the plaintiffs retained the right to challenge, in accordance with our prior opinion, Jeffers v. Clinton, 740 F.Supp. at 602, the 1991 Plan after its adoption. As we said before, “[i]t seems to us inconceivable that a matter of this magnitude would be settled without a formal writing embodying the terms of a settlement.” Jeffers v. Clinton, 812 F.Supp. at 909. Moreover, if defendants could have produced such an affidavit, they should have done so at the time of their first motion for summary judgment.

III.

For these reasons, we confirm our previous ruling that there was no settlement agreement as a matter of law. We also deny the defendants’ summary-judgment motion on the non-contiguity of the Delta districts plaintiffs have proposed. We express no opinion on whether the plaintiffs will show that the 1991 Plan violates the Voting Rights Act or whether they are entitled to the remedy sought. We hold only that the case should be tried.

It is so ordered.

EISELE, Senior District Judge, dissents, and will file an opinion stating his views in due course.

EISELE, Senior District Judge, dissenting.

[Filed November 15, 1993]

The majority opinion, filed September 2, 1993, deals with two summary judgment issues: (1) whether matérial issues of fact remain to be tried with respect to the defendant’s contention that plaintiffs’ are estopped to challenge the Delta area part of the 1991 Plan because’they agreed thereto; and (2) whether the conceded facts show that plaintiffs cannot establish a violation of the Voting Rights Act because their own proposed Plan does not meet the necessary preconditions of “compactness” and “contiguity” as required by the Supreme Court in Thornburg v. Gingles 478 U.S. at 50-51, 106 S.Ct. at 2766.

I will shortly state my views on these two issues, but I write today primarily to discuss other issues and principles of law which convince me that this case should be dismissed. I will first restate my position that this particular three judge District Court does not have jurisdiction of the subject matter of this litigation. But I also raise, sua sponte, other principles of law which in my opinion bar this attack by the named plaintiffs on the 1991 Plan.

CONTEXT AND BACKGROUND

This is public interest litigation the outcome of which can affect the basic political rights of many thousands of Arkansas citizens. Those citizens are not parties to this lawsuit and it is doubtful that many are even aware of the case or of its possible consequences. Furthermore, the dynamics of this type of litigation are such that the traditional safeguards of our adversary trial system cannot be relied upon to raise and argue all of the important issues. As I stated in Turner v. State of Arkansas, 784 F.Supp. 553, at 563 (E.D.Ark.1991):

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.

An example of this dynamic was cited in a footnote to that observation as follows:

Another illustration .of this non-partisan political phenomenon may possibly be found in the decision of the defendant Democratic office holders (constituting the State Board of Apportionment) to abandon in favor of the successful black plaintiffs the “preclearance” issues on appeal to the U.S. Supreme Court in the Jeffers case thereby depriving the people of Arkansas and the Arkansas General Assembly of the opportunity for a definitive ruling on the legality and constitutionality of the Court’s chilling holding “that any further statutes, ordinances, regulations, practices or standards imposing or related to a majority-vote requirement in general elections, in this State must be subjected to the preclearance process.” Jeffers, 740 F.Supp. at 601. The defendants’ concession might well make sense to a sensitive, concerned and accountable politician. But who is there to stand for the vindication of the right of people of Arkansas to decide when and if to impose a majority-vote requirement in its general elections without having to seek the permission of a federal court? The failure of the defendants to pursue the appeal has left a permanent cloud over the state’s right to extend the principle of majority rule.

So it is incumbent upon the Court to.examine such voting rights litigation independently, recognizing that we are not dealing with the typical civil case between private parties seeking vindication of only private interests.

The majority opinion aptly states the basis for plaintiffs’ present challenges to the 1991 Arkansas Apportionment Plan:

The 1991 Plan for the Delta establishes four House districts and one Senate district with black-majority voting age populations (“VAP”). These regions have a black VAP of at least 60%, so that African-Americans will constitute a “super-majority” in those districts. Plaintiffs claim that this dilutes their voting strength. Specifically, it concentrates or “packs” African-Americans into too few districts, thus “minimiz[ing] the total number of districts in which black voters can select their candidate of choice.” Voinovich v. Quilter, [507 U.S.-,-] 113 S.Ct. 1149, 1153 [122 L.Ed.2d 500] (1993). The Supreme Court has recognized that “"‘[d]ilution of racial minority group voting strength may be caused ... [by] the concentration of blacks into districts where they constitute an excessive majority.’ ” Id. [at-] at 1155 (quoting Thornburg v. Gingles, 478 U.S. 30, 46 n. 11 [106 S.Ct. 2752, 2764 n. 11, 92 L.Ed.2d 25] (1986)). The plaintiffs ask us to remedy this by ordering the establishment of one more House district and one more Senate district in the Delta. Although this would give African-Americans in most of the black-majority districts in the Delta a bare majority rather than a super-majority, it would increase the number of those districts and, possibly, the number of minority-preferred candidates elected.

The problem is that the super-majority districts that these plaintiffs now attack are not materially different from the districts created by order of this Court in response to the demands of those same plaintiffs when they were attacking the 1981 Plan. In fact it appears that the defendants’ approach to redistricting in 1991 was to follow the Plan approved by this Court in 1990 as closely as possible, making only those changes required by the population changes that occurred between 1980 and 1990 in order to meet the “one-person one-vote” objective.

So irony of ironies: These-'plaintiffs who prevailed upon the majority of this Court, over a strong dissent, to create “super-majority” districts in 1990 in East Arkansas now contend that in 1991 the defendant members of the State Board of Apportionment violated Section 2 of the Voting Rights Act by doing that very same thing.

Yes, by “packing” black citizens into such super-majority districts, the total number of districts in which black voters, assuming block voting by race, can elect candidates of their choice is reduced. Voinovick v. Quilter, 507 U.S.-,-, 113 S.Ct. 1149, 1153, 122 L.Ed.2d 500 (1993). And, yes, the United States Supreme Court has recognized that “‘dilution of racial minority group voting strength may be caused ... [by] the concentration of blacks into districts where they constitute an excessive majority’” Id. at -, 113 S.Ct. at 1155. . Indeed, “packing” has been a traditional gerrymandering device, surfacing most frequently in districting fights between Republicans and Democrats. .The dissent in this case, dealing with the attack on the 1981 Plan, made that very point: The majority, by mandating super-majority black districts, thereby ordered into effect a plan which, if decreed by the Board of Apportionment, would clearly violate the Voting Rights Act. It was the minority’s view that, even if the Voting Rights Act was violated in the 1981 Plan, “relief’ in the form of super-majority black districts would, not be permitted. So why do I now have a problem with these plaintiffs attempting to correct the error they made in 1990? I will answer that question shortly, but first things first. And always first is jurisdiction.

LACK OF SUBJECT MATTER JURISDICTION

It is my opinion that this three judge court, constituted to deal with the challenges to the 1981 Plan (based on the 1980 Census), does not have jurisdiction to hear this challenge, filed in the same suit, to the Plan approved by the Board of Apportionment in 1991 (reflecting changes required by the 1990 census). The only possible predicate for attacking the 1991 Plan in this suit is the following language contained in the majority opinion dealing with the challenge to the 1981 Plan, to-wit:

We further direct that the Plan of apportionment for the State Legislature to be adopted by the Board of Apportionment after the 1990 census not take effect until the plaintiffs have had a chance to inspect it and to challenge it in this Court.

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We deem it appropriate to impose one further item of relief in the nature of preclearance, not as a matter of statute, but as a matter of inherent equitable power. After the 1990 Census, the Board of Apportionment will face once again the task of drawing district lines for the House and Senate. We direct that no Plan of apportionment so adopted may go into effect until 60 days have elapsed from the date of its final adoption by the Board. This Court will retain jurisdiction, within that time period, for the purpose .of entertaining any challenge by the plaintiffs in this case to such Plan. If no such challenge is forthcoming, the Plan may go into effect, subject, however, to the right of any aggrieved citizen to challenge it in an appropriate action at a later time. This retention of jurisdiction is not required by Section 3(c) of the Act,’ but plaintiffs- have requested it, in the alternative, and we believe it is appropriate under the facts of this case. In fact, such a period of vulnerability, so to speak, should work to the advantage of the State, because if the Plan adopted in 1991 survives this hurdle the chances of its being allowed to govern undisturbed until the Census of 2000, will be, as a practical matter, greatly enhanced.

Jeffers v. Clinton, 740 F.Supp. 585, 587, 602 (E.D.Ark.1990). And we find similar language in the judgment entered, to-wit:

No Plan of apportionment adopted by the defendant Board of Apportionment for the Arkansas General Assembly after the 1990 census may go into effect until 60 days have elapsed from the date of its final adoption by the Board. This Court retains jurisdiction, within that time period, for the purpose of entertaining’any challenge by the plaintiffs in this case to such Plan. If no such challenge is forthcoming, the Plan may go into effect, subject, however, to the right of any aggrieved citizen to challenge it in an appropriate action at a later time.

It is my opinion that this three judge court, constituted to hear the challenge to the 1981 Plan, had no power to extend its jurisdiction to determine potential challenges to the 1991 Plan “as a matter of inherent, equitable power.”

Reapportionment is required every ten years as a result of changes in population which are revealed in the decennial censuses. Given the ten year hiatus, the membership of the Board of Apportionment would rarely be the same. And that is true here. In 1981 the Board was composed of Governor Frank White, Attorney General Steve Clark and Secretary of State Paul Revere. The Board of Apportionment in 1991 consisted of Governor Clinton, Attorney General Winston Bryant and Secretary of State Bill McCuen.

These reapportionment cases are not like ongoing school desegregation cases or cases challenging the constitutionality of prison conditions. Rather they constitute independent challenges to discreet acts by different parties taken at ten year intervals.

The Jeffers I majority made it clear that the only basis for this claimed extension of jurisdiction is the “inherent equitable power” of this Court. The Court acknowledged that such relief was not required by Section 3(c) of the Voting Rights Act. Rather, the relief was granted because “plaintiffs have request•ed it ... and we believe it was appropriate under the facts of this case.”

There is simply no legal basis for this particular three-judge U.S. District Court to establish itself as a permanent -overseer of reapportionment Plans. The majority in its 1990 opinion did not go so far as to rule that this court and this case would be the only forum for an attack by anyone upon the 1991 apportionment Plan. Rather, the majority’s equitable preelearanee relief gave only the named Jeffers plaintiffs the right to come back to this Court to challenge the 1991 Plan. So the effect of the majority opinion is to give enhanced status to the plaintiffs who originally challenged the 1981 Plan. In fact, the majority’s opinion, fairly read, would prohibit any challenge by others for at least the sixty day period specified. It is my opinion that there is no lawful basis or authority for this Court to give preferential standing to the Jeffers píaintiffs to challenge the 1991 Plan, nor is there any lawful basis for this Court to control the timing of attacks which others might wish to make'on the 1991 Plan.

It could be argued that the majority was simply attempting to provide to the plaintiffs a reasonable and very narrow opportunity to confront any attempt by the 1991 Board of Apportionment to summarily undo,the relief .previously granted by this Court, Even the plaintiffs in their brief in opposition to the Motion for Summary Judgment state that the Court’s retention of jurisdiction “was well within its equitable discretion to insure that the 1991 districting Plan did not reinstate the violations found in the 1981 Plan.” If the majority of -this Court were inclined to so limit the scope of this retained jurisdiction then, I submit, that the ease should still be dismissed, because, I gather, no one is contending that the actions of the 1991 Board in any way interfere with or diminish the black voting power which resulted from this Court’s earlier Decree or “reinstated the violations found in the 1981 Plan.” In any event the point is academic. Since the majority is permitting the Jeffers plaintiffs to make this broad attack on the 1991 Plan, it is clear that it does not read the “jurisdictional” language (contained in its 1990 opinion) so narrowly.

So the.case should be dismissed because this three-judge court lacks subject matter jurisdiction.

SUBSEQUENT DECISIONS UNDERCUT OPINION IN JEFFERS I

Next, it is my opinion that the law relied upon by the majority in its 1990 decision (on the 1981 Plan) in holding that there were violations of Section 2 of the Voting Rights Act has been undercut by subsequent cases in the United States Supreme Court and elsewhere. So, in my opinion, if the identical 1990 trial (challenging the 1981 Plan) were held today, the plaintiffs would not, and could not, prevail on their Section 2 claim. And it is apparent that these same Jeffers plaintiffs are facing the same problem in their present attack on the 1990 Plan. It will be helpful to spell this out in some detail.

Since the discussion that follows involves the interpretation of Section 2 of the Voters Right Act, I now quote it in full:

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 1973b(f)(2) of this title, as provided in' subsection (b) of this section.

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.

The majority in the Jeffers I case did not believe it was necessary that plaintiffs, (to prove a Section 2 violation) establish that the redistricting plan resulted in plaintiffs having both “less opportunity to participate in the political process” and “less opportunity to elect representatives of their choice!” See language of Section 2. The Court in Turner v. State of Arkansas, 784 F.Supp. 553 (E.D.Ark.1991) discussed this Jeffers I issue and the change that had occurred in the. law as follows:

There is another threshold barrier to plaintiffs’ claim here. This can best be identified by reference to a discussion in the Jeffers case. It will be recalled that the Jeffers Court was not unanimous in answering the following question:

To make out a Section 2 violation, must plaintiffs prove both of the following: that, as a result of the 1981 district lines, blacks (1) have less opportunity to participate in the political processes; and (2) have less opportunity to elect representatives of their choice?

The majority was of the opinion it was not necessary to prove both. That opinion stated:

Even if plaintiffs failed to show less opportunity to participate in the political process, a showing that they have less opportunity to elect candidates of their choice would suffice to establish their claim. The right protected is the aggregate of these opportunities — the right to effective participation in the political system- ...

Jeffers, 730 F.Supp. at 204. The dissent disagreed. Id. at 231.

This argument has now apparently been resolved consistent with the minority’s view in Jeffers. In Chisom, v. Roemer, 501 U.S.-, 111 S.Ct. 2354, 115 L.Ed.2d 348 (1991), the Supreme Court discusses and resolves the issue as follows:

The LULAC majority assumed §' 2 provides two distinct types of protection for minority voters — it protects their opportunity “to participate in the political process” and their opportunity “to elect representatives of their choice.”

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Any abridgment of the opportunity of members of a protected class to participate in the political process inevitably impairs their ability to influence the outcome of an election.- As the statute is written, however, the inability to elect representatives of their choice is not sufficient to establish a violation unless, under the totality of the circumstances, it can also be said that the members of the protected class have less opportunity to participate in the political process. The statute does not create two separate and distinct rights. Subsection (a) covers every application of a qualification, standard, practice, or procedure that results in a denial or abridgement of “the right” to vote. The singular form is also used in subsection (b) when referring to an injury to members of the protected class who have less “opportunity” than others “to participate in the political process and to elect representatives of .their choice.” 42 U.S.C. § 1973 (emphasis added). It would distort the plain meaning of the sentence to substitute the word “or” for the word “and.” Such radical surgery would be required to separate the opportunity to participate from the opportunity to elect.

The statutory language is patterned after the language used by Justice White in his opinions for the Court in White v. Regester, 412 U.S. 755, 93 S.Ct. 2332, 37 L.Ed.2d 314 (1973) and Whitcomb v. Chavis, 403 U.S. 124, 91 S.Ct. 1858, 29 L.Ed.2d 363 (1971). See n. 22, Supra. In both opinions, the court identified the opportunity to participate and the opportunity to elect as inextricably linked. In White v. Regester, the Court describes the connection as follows: “The plaintiffs’ burden is to produce evidence ... that its members had less opportunity than'did other ... residents to participate in the political processes and to elect legislators of their choice.” 403 U.S. at 149, 91 S.Ct. at 1872 (emphasis added).

The results test mandated by the 1982 amendment is applicable to all claims arising under § 2.

Chisom [501 U.S. at -], 111 S.Ct. at 2364-65.

The point is important to make because the majority.in Jeffers appears to have conceded that plaintiffs there could not show that the state-legislature redistricting plan at issue resulted in blacks having less opportunity to participate in the political process than others in the electorate. Note the language of the majority’s opinion in Jeffers:

... We further find that voting in the areas of the State in question is markedly polarized by race. Both black and white voters usually prefer candidates of their own race. Black voters are far from powerless. They exercise significant, sometimes decisive influence. But they can elect a candidate of their choice, in a district in which the voting-age population is majority white, only if that candidate is white. For the foreseeable future, the present location of legislative district lines will make it very difficult to elect more than six black legislators, out of a total in both houses of 135 members. And this is so even though black people make up about 16 percent of the total population of the State of Arkansas. In this situation, black citizens have less opportunity than other members of the electorate to elect representative of their choice. This is a violation of Section 2(b) of the Voting Rights Act, 42 U.S.C. § 1973(b). For reasons we shall explain in this opinion, Plaintiffs have proved a violation of the law in all of the areas of the State called in question by this suit, except for Pulaski County. (Emphasis supplied).

Turner v. State of Arkansas, 784 F.Supp. 553, 574-575 (E.D.Ark.1991).

The legal predicate for the majority’s finding of a Section 2 violation in Jeffers I has, in effect, been reversed by the U.S. Supreme Court in Chisom. So even if this Court were to make the same findings as it did in Jeffers there would be no basis for holding that the defendants violated Section 2 of the Voters Right Act.

And if it is argued that the majority in Jeffers I actually found that the 1981 redistricting plan resulted in blacks having less opportunity to participate in the political process and less opportunity to elect representatives of their choice, the basis for such argument (and finding) could only have been one of the “Senate” or “Zimmer” factors. The following discussion in Turner makes this clear:

Even under the majority opinion in Jeffers, the only basis for the intervenors to contend that black voters do not have equal opportunity to participate in the political process would be found in one of the Senate factors, i.e., the present effects of past racial discrimination in areas of health, education and employment. See Jeffers, 730 F.Supp. at 204. And the Senate or Zimmer [v. McKeithen, 485 F.2d 1297] factors cannot suffice for the proof required by Section 2. As stated in the minority-dissenting opinion in Jeffers:

First, Section 2(b) requires a cause and effect showing that the challenged [standard, practice or procedure (SPP)] is responsible for blacks having “less opportunity than other members of the electorate to participate in the political process.” The finding in Smith v. Clinton, 687 F.Supp. 1310 (E.D.Ark.1988) means that neither present legal barriers nor the redistricting plan formulated by the Board of Apportionment in 1981 is responsible for blacks having “less opportunity than other members of the electorate to participate in the political process.” Rather, it is the present effects of past discrimination in health, education and employment. Stated otherwise, the opportunity of blacks to participate in the political process would be the same regardless of the manner in which the Board drew the district lines.

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The majority would probably reply, as certain other federal courts have, that we must look at the “interaction” of the SPP with impairments blacks suffer as a result of prior discrimination to determine if that SPP results in .blacks having less opportunity to participate in the political-process. This is linguistic legerdemain. Clearly it is not the line drawing by the board — the SPP here— which “results” in blacks having less such opportunity; rather, it is the diminished socioeconomic status found to have resulted from prior discrimination.

And Section 2 does not purport to give remedy solely on the latter basis. At the risk of argumentative overkill, assume the Board had drawn the district lines exactly as plaintiffs now request. Would the opportunity of blacks “to participate” be different? Clearly not. This error in analysis I identify as the source of so much unnecessary intellectual conflict in the “voting rights” eases and as the principal source of the misuse of certain of the Zimmer or Senate factors.

Is not all of this obvious? The socioeconomic condition of blacks in any given area — whatever it is — will always be a “given” in any voting rights challenge. And, unfortunately in this country, from sea to sea, blacks, although making significant progress, still suffer adverse effects in education, the economic arena and health, and, on a statistical basis, are simply not as well off as non-blacks in our society. So, if one accepts that being poor, uneducated, unhealthy, etc., decreases one’s “opportunity to participate” in the political process, then there will.be no voting SPP which, will be immune from attack. Elections per se could be as readily attacked!

Jeffers, 730 F.Supp. at 237-38 (Eisele, C.J., dissenting).

The majority’s predicate finding for its holding that the defendants in Jeffers violated Section 2 is that black citizens “have less opportunity than other members of the electorate to elect representatives of their choice.” There is no finding that black voters have “less opportunity than other members of the electorate to participate in the political process.” And when it comes to a discussion of the Section 2 claim, the majority in Jeffers states:

At the outset, defendants make two legal arguments that would bar the action altogether if successful. First, they say that under the plain language of Section 2(b) plaintiffs must show two separate things: (1) that they have less opportunity to participate in the political process; and (2) that they have less opportunity to elect representatives of their choice. Even if they have shown the second, the argument, runs, they cannot win this case, because they cannot make the first showing. There are no presently existing legal barriers to voting by black citizens in Arkansas, and therefore they have just as much opportunity to participate in the political process as anyone else.

730 F.Supp. at 204. So, even though the majority in Jeffers went on to say that the defendants’ argument did not reckon with the present effects of past discrimination, it acknowledged that in Arkansas black voters had as much opportunity in the 1981-1990 period to participate in the political process as anyone else. It is for that reason that it recognized that if plaintiffs had to prove as an essential element of their Section 2 claim that because of the district lines .they had. less opportunity to participate in the political process than others, then their action under Section 2 would fail.

Turner, at 576-577.

This point is made in a slightly different way in Cunningham and Beard’s recent monograph entitled “The Re-Segregation of America: The Racial Politics of Legislative Redistricting,” University of Massachusetts, August, 1993, p. 19 where it is said:

The point has also been made that the drawing of political district boundaries is quite likely neither the cause nor the cure of socioeconomic ills. While a footnote in the Senate Report on the Voting Rights Act has been seized upon to make the argument that it is the reinforcement of the discrimination by the district lines that causes a harm which must be remedied, it is clear that the effects of discrimination in education, employment and health are not the evils which the Voting Rights Act aims to eliminate. The correct targets are the flaws in the districting plan which deny the minority citizenry the equal opportunity to participate and elect candidates of their choice — nothing more, nothing less.

Further doubt is cast on the Jeffers I majority opinion by the case of Armour v. Ohio, 775 F.Supp. 1044 (N.D.Ohio 1991) decided by a three-judge district court on September 4, 1991. The issue is: what does “representatives of their choice” mean as found in § 2? The majority in Jeffers I state that black voters:

“... can elect a candidate of their choice, in a district in which the voting age population is majority white, only if that candidate is white.”

The Court in effect acknowledged that blacks regularly were successful in electing white candidates of their choice. Since it ruled that the defendants have violated § 2 of the Voting Rights Act, the majority necessarily interpret “representatives of their choice” to mean black candidates of their choice.

But note the following language from Armour:

The next question that we address is whether black voters could elect a candidate of their choice in a redrawn district. For the reasons set forth below, we find that plaintiffs have shown that in the proposed district they will be able to elect a candidate of their choosing. Defendants go to great lengths to demonstrate that based upon racial voting patterns plaintiffs will not be able to elect a black candidate without a majority of black voters in the redrawn district. However, defendants misapprehend the requirements of the Voting Rights Act. The issue is not whether the plaintiffs can elect a black candidate, but rather whether they can elect a. candidate of their choice. We believe that they can.

The problem with this reasoning is that plaintiffs have demonstrated persuasively that white voters in Mahoning County do not usually vote for black candidates. Thus, there is no assurance that a black candidate winning the primary could muster sufficient white votes to be elected to office. However, our conclusion that blacks in a redrawn district could elect a candidate of their choice depends neither upon a historical correlation'between the outcome of the primary and the general election nor upon speculation as to how a black can.be elected, and therefore the inconsistency in plaintiffs’ theory does not affect our conclusion.

Armour, 775 F.Supp. at 1059-60 (Footnote omitted) (Emphasis in original.)

As stated in “The Re-Segregation of America: The Racial Politics of Legislative Redistricting”, supra, p. 20-22:

The point here is not just that the Voting Rights Act is limited to racial, color, and language minorities. It is also that even these recognized groups, when they prove a violation of the act, are entitled only to a remedy which gives them a fair chance to elect a candidate of their choice — not a candidate of their same race or skin color or language, certainly not a candidate whose ancestors came to America from the same country.

It is clear from the pre-trial conferences in this case that plaintiffs will not be able to show they, or any other black citizens, have any less’ opportunity to. participate in the political process in the challenged' districts than other members of the electorate. It is also clear that plaintiffs will not be able to show that they have not had the opportunity to elect representatives of their choice if one assumes that “representatives of their choice” includes whites as well as blacks. This is obvious. The polling records will reveal that blacks in the affected areas overwhelming vote for the Democrat candidates in the- general elections and those Democrat candidates win in the great majority of contested races. (And I believe those records will also reveal that a majority of black voters have supported the successful candidates in most Democratic Primary elections). For these reasons the present attack should be dismissed.

NO CHANGE IN BLACK POLITICAL OPPORTUNITY RESULTED FROM 1991 PLAN: THE “BEFORE AND AFTER” TEST.

The next barrier to this challenge to the 1991 Plan puts a different emphasis on the same point, to wit, that that Plan did not result in black voters having less opportunity than others to participate in the political process and to elect representatives of their choice. But here we emphasize the “before and after” test.

Section 2 of the Voting Rights Act clearly assumes a bench mark and that bench mark is the condition existing immediately prior to the adoption of the challenged Plan. So, unless Section 2 is an affirmative action statute, plaintiffs’ claim will have to be dismissed. This issue was discussed in.both the Jeffers I and in the Turner cases.

The dissent in the first Jeffers I decision pointed out:

The Section 2 law in this “gerrymandering” (districting or redistrieting) area developed as a negative proscription. The law prohibits “fragmenting” or “packing” cohesive political groups of black citizens with the effect of diluting their voting power. The law did not-develop in the context of affirmative obligations to reach out and include larger numbers of black citizens in order to enhance black political power. In other words, the mandate was “you shall not harm” rather than “you shall help.” When dealing with the negative proscription, the issues were simple and straightforward. If blacks possessing majority political power in a single district were divided into two districts, in each of which they constituted . a minority, everything was quite simple and straightforward. Or, if one, say, took two 60% black VAP districts and divided the black VAP so that one district had 80% and the other 40%, the case would also be clear. And the multimember-at-large district-is likewise a relatively-simple case. .

But here, plaintiffs made no direct effort to show that district lines were drawn in 1981 in a way which had the effect of packing or breaking up or fragmenting prior existing politically cohesive black groups. I waited in vain for evidence comparing the political status of blacks in the districts created in 1971 with their political status in the districts created in 1981. I asked myself: did the new; lines drawn in 1981 decrease, limit, curtail or lessen, the effectiveness of black political participation by fragmenting or packing or, otherwise? Biit plaintiffs eschewed this approach in favor of a theory that they need only show that the defendant Board in 1981 failed to take the opportunity to enhance black political effectiveness. The plaintiffs’ view apparently is that it is immaterial whether they were better off politically under the 1981 plan than under the 1971 - plan. Their point is that they were not better off under the 1981 plan than they could have been if the Board had taken advantage of every opportunity to enhance their political position. This is clearly an affirmative action theory. Affirmative action by definition carries implications of intent which may relate to plaintiffs’ constitutional claims but have only tangential relevance to their Section 2 “results” claims.

In Turner, supra, which was an attack on congressional redistricting, the Court analyzed the issue as follows:

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 cojitend 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.”

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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 ease, 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 changó 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 representatives of their choice. “Less opportunity” by any fair interpretation means “less opportunity” than such black voters had immediately before the imposition or application of the challenged standard practice or procedure; not “less opportunity” than they would have, had the legislature seized the opportunity to help them by maximizing their political influence.

It is the Court’s opinion that Section 2, in the context of this case, is not an affirmative action statute. It seeks equal opportunity — not unequal opportunity. And even though affirmative action type remedies may be available (within constitutional limits) upon proof of a violation of the statute, that statute is not violated by a state legislature simply because that legislature does not enact a districting plan that maximizes black political power or influence. The legislature’s plan, to trigger Section 2 relief, must first harm or dilute black political opportunity. If it does not, there is no violation and no predicate for potential draconian enhancement remedies such as we find in Jeffers. So on this basis alone, plaintiffs and the Walker intervenors must lose on their Section 2 claim. Justice Scalia in his dissent in Chisom recites established principles of statutory construction that so often are overlooked or ignored' in dealing with the Voting Rights Act:

Section 2 of the Voting Rights Act is not some all-purpose weapon for well-intentioned judges to wield as they please in the battle against discrimination. It is a statute. I thought we had adopted a regular method for interpreting the meaning of language in a statute: first, find the ordinary meaning of the language in its textual context; and second, using established canons of construction, ask whether there is any clear indication that some permissible meaning other than the ordinary one applies. If not— and especially if a good reason for the ordinary meaning appears plain — we apply that ordinary meaning.

Chisom [501 U.S. at -], 111 S.Ct. at 2369 (Sealia, J., dissenting). He laments the approach that “begins not with-, what the statute says but with an expectation about what the statute must mean.”

As method, this is just backwards; and however much we may be attracted by the result it produces in a particular case, we should in every case resist it. Our job begins with a text that Congress has passed and the President has signed. We are to read the words of that text as any ordinary Member of Congress would have read them, see Holmes, The Theory of Legal Interpretation, 12 Harv. L.Rev. 417 (1899), and apply the meaning so determined.

Id. It is the failure to follow such wise counsel that has resulted in most of the confusion we find in the Section 2 cases.

And the Turner opinion later observes:

Congress did not intend to provide minority voters with the “maximum feasible minority voting strength.” Gingles, 478 U.S. at 94, 106 S.Ct. at. 2789 (O’Connor, J., concurring). The maximum minority voting strength would be tantamount to proportional representation, which is expressly prohibited by the language of the statute. Plaintiffs’ argument to the contrary is inconsistent with the “results ” test enacted in the statute and the clear disclaimer of any right to proportional representation. Id. Indeed, the Supreme Court has rejected any claim to proportional representation or “maximum feasible representation” throughout the history of the Voting Rights Act. See, e.g., White v. Regester, 412 U.S. at 765-66, 93 S.Ct. at 2339-40 (1973); Whitcomb v. Chavis, 403 U.S. 124, 148-56, 91 S.Ct. 1858, 1871-76, 29 L.Ed.2d 363 (1971).

If my understanding is correct that the 1991 Plan made only those minor changes f