Full opinion text
AMENDED OPINION PHILLIPS, Senior Circuit Judge: This action, brought by several white citizens and registered voters of the State of North Carolina against various state and federal officials, challenges the constitutionality of the congressional redistricting plan (the Plan) adopted by the North Carolina General Assembly following the 1990 decennial census. Plaintiffs now claim principally that the General Assembly’s redistricting plan violates their rights under the Equal Protection Clause of the Fourteenth Amendment, because it intentionally includes one or more congressional districts constructed along racial lines in order to assure the election of two African-American members of Congress, and is not narrowly tailored to further any compelling governmental interest. We initially dismissed that claim under Rule 12(b)(6), Shaw v. Barr, 808 F.Supp. 461 (E.D.N.C.1992), but the Supreme Court reversed and remanded, Shaw v. Reno, — U.S. -, 113 S.Ct. 2816, 125 L.Ed.2d 511 (1993) (Shaw). On remand, we find that the Plan’s lines were deliberately drawn to produce one or more districts of a certain racial composition and that it is thus a “racial gerrymander” subject to strict scrutiny under Shaw. But we nonetheless conclude that the Plan passes constitutional muster under that standard, because it is narrowly tailored to further the state’s compelling interest in complying with the Voting Rights Act. We therefore hold that the Plan does not violate the plaintiffs’ Equal Protection rights in the manner alleged, and we give judgment for the defendants accordingly. I. General Background and Procedural History As a result of population increases reflected in the 1990 decennial census, North Carolina became entitled to an additional seat in the United States House of Representatives, bringing its total number of seats to twelve. In July of 1991, the North Carolina General Assembly therefore enacted legislation to redistrict the state into twelve congressional districts. 1991 N.C.Sess.Laws Ch. 601. This redistricting plan included one district, the First, in which African-Americans constituted majorities of both the registered voters and the voting age population of the district. This proposed majority-minority district was located in the northeastern part of the state. Because 40 of North Carolina’s 100 counties are covered by the provisions of § 5 of the Voting Rights Act of 1965, 42 U.S.C. § 1973c, the state submitted its proposed redistricting plan to the United States Attorney General for preelearance. On December 18, 1991, the Attorney General interposed formal objection to the proposed plan, finding that the state had not met its § 5 burden of showing that the plan was free of racially discriminatory purpose. Under § 5, the state could have challenged the Attorney General’s objection to its original redistricting plan by filing a declaratory judgment action in the United States District Court for the District of Columbia. After debate, however, it elected not to do this, but instead to revise its original plan in order to meet the Attorney General’s objection and secure his approval. In January of 1992, the General Assembly therefore convened in special session and enacted a revised redistricting plan. 1991 N.C.Extra Sess.Laws Ch. 7. This revised plan, which is the Plan under attack here, creates two districts in which African-Americans constitute majorities of both the registered voters and the voting age populations. One of these majority-minority districts, the First, is centered in the rural northeastern part of the state, where a large, dense concentration of African-Americans has long existed, but contains extensions that reach deep into the rural southeastern part of the state. The other, the Twelfth, is located not in the southern part of the state, as the Justice Department had suggested, but runs diagonally across the Piedmont in a jagged band that stretches some 160 miles from Durham to Gastonia, generally following the route of Interstate Highway 85, but with several extensions into the historic “black sections” of the Piedmont cities that he along its course. The twelve districts created by the Plan are as equally populated as is mathematically possible, but their configurations are such that a number of precincts, townships, cities and counties of the state are split among two or even three congressional districts. The state submitted its revised Plan to the Attorney General under § 5, and the Attorney General precleared it on February 6, 1992. Almost immediately, the Republican Party of North Carolina and several individual voters associated with it filed suit in federal district court challenging the revised Plan under various provisions of the federal Constitution. Their primary claim was that the Plan violated their rights under the Equal Protection Clause of the Fourteenth Amendment, because its lines were deliberately drawn to favor Democratic incumbents at the expense of Republican political interests. On April 16, 1992, a three-judge district court dismissed that claim under Rule 12(b)(6), holding that the plaintiffs had not, and could not, allege that the Plan had the requisite discriminatory effect on an identifiable political group needed to state a valid political gerrymandering claim under Davis v. Bandemer, 478 U.S. 109, 106 S.Ct. 2797, 92 L.Ed.2d 85 (1986). Pope v. Blue, 809 F.Supp. 392 (W.D.N.C.1992). The Supreme Court summarily affirmed. 506 U.S. -, 113 S.Ct. 30, 121 L.Ed.2d 3 (1992). Shortly after the complaint in Pope v. Blue was filed, plaintiffs herein, five white residents of Durham County, North Carolina who are registered to vote in that county, filed this action challenging the constitutionality of the same congressional redistrieting plan. Named as defendants in this action were the Governor, the Board of Elections, and various high-ranking officials of the state of North Carolina (the state defendants), as well as two federal officials who had participated in the § 5 preclearance process, the United States Attorney General and the Assistant Attorney General for the Civil Rights Division (the federal defendants). Plaintiffs’ principal constitutional claim against the state defendants in this action was that the General Assembly’s revised Plan violated their rights under the Equal Protection Clause. They based that claim on allegations that the Plan deliberately “creates two Congressional Districts in which a majority of African-American voters was concentrated arbitrarily — without regard to any other considerations, such as compactness, contiguousness, geographical boundaries, or political subdivisions,” with the purpose of “ereat[ing] Congressional Districts along racial lines” and assuring the election of two African-American Representatives. Amended Complaint ¶ 36(A). Two theories of Equal Protection violation were advanced. First, that the deliberate drawing of district lines so as to create one or more districts in which a particular race has a majority, even if required by the Voting Rights Act, was per se unconstitutional under the Equal Protection Clause. Alternatively, that even if such race-based redistrieting was not always unconstitutional, the specific redistrieting plan at issue here was, because its lines did not observe such traditional districting considerations as geographic compactness, contiguity, and communities of interest, but were instead improperly “gerrymandered” to create two majority-minority districts and insure proportional representation of African-American citizens in North Carolina’s congressional delegation. In addition, plaintiffs alleged that the Plan violated rights secured to them by §§ 2 and 4 of Article I of the Constitution, the Privileges and Immunities Clause of the Fourteenth Amendment, and the Fifteenth Amendment. Finally, they made a two-pronged attack on the constitutionality of the federal defendants’ conduct in refusing to preclear a congressional redistrieting plan for North Carolina that did not contain two majority-minority districts, arguing both that the federal defendants had misinterpreted amended § 2 of the Voting Rights Act and in consequence applied it unconstitutionally, and, in the alternative, that if amended § 2 in fact required the creation of two majority-minority districts in North Carolina, it was itself unconstitutional. As relief, plaintiffs sought a declaration that the Plan was unconstitutional; preliminary and permanent injunctive relief against its use by the appropriate state defendants to conduct congressional elections; a declaration that the federal defendants had acted unconstitutionally in demanding that North Carolina adopt a congressional redistrieting plan with two majority-minority districts; and an injunction restraining the federal defendants from taking any action requiring North Carolina to enact such a plan. Following designation of this three-judge court, both sets of defendants filed motions to dismiss. We dismissed the claims against the federal defendants, concluding that we lacked subject-matter jurisdiction over those claims. 808 F.Supp. at 466-67 (majority op.); id. at 474 (Voorhees, C.J., concurring in relevant part). By a divided vote, we dismissed the claims against the state defendants as well. We were in agreement that to the extent those claims were based on §§ 2 and 4 of Art. I and the Privileges and Immunities Clause of the Fourteenth Amendment, they failed to state a legally cognizable claim. We were also agreed that plaintiffs’ Fifteenth Amendment claim was essentially subsumed within their related claim under the Equal Protection Clause of the Fourteenth Amendment, and that to the extent plaintiffs’ Equal Protection claim alleged that race-based redistricting was always unconstitutional, even when it was required by the Voting Rights Act, it was foreclosed by United Jewish Organizations, Inc. v. Carey, 430 U.S. 144, 97 5.Ct. 996, 51 L.Ed.2d 229 (1977) (UJO). 808 F.Supp. at 470-72 (majority op.); id. at 473-74 (Voorhees, C.J., concurring in relevant part). We were divided as a court, however, on the proper disposition of plaintiffs’ alternative Equal Protection claim: that even if race-based redistricting was not always unconstitutional, the specific redistricting plan at issue here was, because its lines were drawn to create two majority-minority districts and assure the election of two African-American members of Congress, without regard to such traditional districting considerations as geographical compactness, contiguity, and communities of interest. Two of us thought UJO disposed of this claim as well. Id. at 472-73 (majority op.). We read the various opinions in UJO to stand for the proposition that a redistricting scheme violates the Equal Protection rights of white voters only if it is “adopted with the purpose and effect of discriminating against white voters ... on account of their race.” Id. at 472, citing UJO, 430 U.S. at 165-68, 97 S.Ct. at 1009-11 (plurality opinion); id. at 179-80, 97 S.Ct. at 1016-17 (Stewart, J., concurring). We concluded that plaintiffs had not alleged the requisite discriminatory purpose, because they had not alleged that the Plan was intended to disadvantage white voters — that is, to deprive them of a fair opportunity, on a state-wide basis, to participate in the political process and to elect candidates of their choice — but only to give effect to African-American voting strength in order to comply with the Voting Rights Act. Id. at 472-73. We also concluded that plaintiffs had not, and could not, allege the requisite discriminatory effect, because they could not establish that the Plan unfairly diluted or canceled out white voting strength and led to proportional underrepresentation of white voters on a statewide basis. Id. at 473. Judge Voorhees disagreed with this analysis. He read the plurality opinion in UJO to authorize the states to deliberately create majority-minority districts in order to comply with the Voting Rights Act only when they employ traditional districting principles such as compactness, contiguity, and communities of interest, id. at 475-77 (Voorhees, C.J., dissenting in relevant part), which he believed were “of constitutional dimension,” id. at 480. The Plan’s alleged failure to respect these principles, in his view, “augur[ed] a constitutionally suspect, and potentially unlawful, intent” on the part of the General Assembly sufficient to state an Equal Protection claim. Id. at 477. Plaintiffs appealed our dismissal of their claims to the United States Supreme Court. In a 5-4 decision, the Court held that plaintiffs had stated a claim under the Equal Protection Clause by alleging that the General Assembly had adopted a redistrieting plan that was “so irrational on its face that it can be understood only as an effort to segregate voters into separate voting districts because of their race, and that the separation lacks sufficient justification.” Shaw v. Reno, — U.S. -, - 113 S.Ct. 2816, 2832, 125 L.Ed.2d 511 (1993). If this “allegation of racial gerrymandering remains uneontradicted,” the Court held, “the District Court further must determine whether the North Carolina plan is narrowly tailored to further a compelling governmental interest.” Id. at -, 113 S.Ct. at 2832. The Court therefore reversed our dismissal of the plaintiffs’ Equal Protection claim and remanded that claim to this court for further consideration. Id. at -, 113 S.Ct. at 2832. The Court expressly affirmed our dismissal of the claims against the federal defendants. Id. at -, 113 S.Ct. at 2823. It expressed no view on the validity of plaintiffs’ claims against the state defendants under Art. 1, § 2; Art. I, § 4, the Privileges and Immunities Clause of the Fourteenth Amendment, and the Fifteenth Amendment, id. at -, 113 S.Ct. at 2832, leaving our dismissal of those claims undisturbed but, because unreviewed, still open for possible reconsideration by this court or, if not reconsidered, for possible later review by that Court. In this posture of the case, our consideration has been confined on remand to the one claim found legally viable by the Supreme Court: the claim of improper “racial gerrymandering” in violation of the Equal Protection Clause. Following the remand of that claim for further consideration, the state defendants filed an answer to the amended complaint, in which they admitted that one of their purposes in enacting the Plan was to respond to the objections interposed by the Attorney General in the § 5 preelearance process by creating two majority-minority districts. Answer to Amended Complaint at ¶ 17; see id. at 6. But they contended that the Plan was not a “racial gerrymander” subject to strict scrutiny under Shaw, because it did not segregate voters into separate voting districts on the basis of race, but actually created integrated districts, and because its lines were the product of legitimate non-raeial redistricting considerations, including compliance with constitutional “one person, one vote” requirements; the creation of communities of interest based on shared historical, social, and economic interests; and the protection of incumbents. Id. at 6. Alternatively, they asserted that even if the Plan was subject to strict scrutiny, it was nonetheless constitutional, because it was narrowly tailored to further the state’s compelling interests in complying with the preclearance requirements of § 5 of the Voting Rights Act, avoiding a violation of § 2 of the Voting Rights Act, and eradicating the effects of past racial discrimination in the state. Id. at 7. After the state defendants filed their answer, we permitted twenty-two persons registered to vote in North Carolina, both African-American and white, to intervene as defendants in support of the Plan (the defendant-intervenors). We also permitted eleven persons registered to vote as Republicans in North Carolina — including Art Pope, who had been the lead plaintiff in the earlier political gerrymandering challenge to the Plan — to intervene as plaintiffs (the plaintiffintervenors), on the condition that they adopt as their own the amended complaint filed by the original plaintiffs. Finally, we permitted the United States, on its motion, to appear as amicus curiae by filing briefs in support of the legal positions of the state defendants. After approximately four months of discovery, the plaintiff-intervenors filed motions, later joined by the original plaintiffs, for a preliminary injunction against further election proceedings under the existing congressional redistrieting Plan and a temporary restraining order and preliminary injunction to extend the filing period for candidates for the 1994 congressional elections. We denied both the TRO application and the motion for preliminary injunction, the latter after hearing oral argument. Following a final pre-trial conference, trial to the three-judge court was held from March 28,1994 through April 4,1994, pursuant to a duly adopted pre-trial order. At trial, the parties presented, and the court received, extensive oral and documentary evidence. We deferred decision pending the parties’ submission of proposed findings of fact and conclusions of law, briefing, and concluding oral arguments of counsel, which we heard on April 18, 1994. Having considered the evidence, the memoranda of law submitted by the parties, the stipulations of fact, the proposed findings and conclusions, and the oral arguments of counsel, we now make the following findings of fact and conclusions of law, pursuant to Fed. R.Civ.Proc. 52(a), prefaced by a discussion of our understanding of the governing law and its application in this context. II. General Legal Principles We begin by setting out our understanding of the nature of the Equal Protection claim recognized by the Supreme Court in this case, to serve as a framework for our findings of fact and conclusions of law. In the process, we consider conflicting contentions of the parties respecting various aspects of the claim. A. General Nature of the Claim At the outset of this action, plaintiffs’ Equal Protection challenge to this congressional redistricting plan took two alternative forms. First, that any state redistricting plan that deliberately creates districts of a certain racial composition necessarily violates the Equal Protection Clause, regardless of its justification. Second, that even if such race-based redistricting is not unconstitutional in all circumstances, this particular redistricting plan is, because its lines do not observe traditional districting considerations such as geographical compactness, contiguity, and communities of interest, but are improperly “gerrymandered” to create two majority-minority districts and insure proportional representation of African-American citizens in North Carolina’s congressional delegation. The Supreme Court found the first claim foreclosed by its prior precedents, at least when the legislature’s purpose was to comply with the remedial requirements of the Voting Rights Act. See — U.S. at -, 113 S.Ct. at 2824 (reaffirming that race-conscious redistricting, like other forms of race-conscious state decisionmaking, is “not always unconstitutional”). The Court found legally viable, however, plaintiffs’ alternative Equal Protection claim, which it characterized as a claim that the state’s redistricting plan, though facially race-neutral, was “so irrational on its face that it can be understood only as an effort to segregate voters into separate voting districts because of their race, and that the separation lacks sufficient justification.” Id. at -, 113 S.Ct. at 2832. It is only that Equal Protection claim which plaintiffs and their supporting intervenors now press on remand. As we understand it, the claim is a newly recognized one in voting rights jurisprudence. Until Shaw, the Supreme Court had recognized only two grounds on which a redistricting plan might be subject to challenge under the Equal Protection Clause. The first, based on the “one person one vote” principle, was that its districts were not equal in population, so that the votes cast by individual voters in some districts had less weight than those cast by voters in other districts. See Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964). The second was that though its districts were of equal population, they were drawn with the purpose and had the effect of unfairly “diluting” or canceling out the voting strength of an identified group of voters— that is, of so diminishing their ability to influence the political process as essentially to shut them out of it, as opposed to merely making it more difficult for them to elect representatives of their choice in particular districts. See White v. Regester, 412 U.S. 755, 765-66, 98 S.Ct. 2332, 2339-10, 37 L.Ed.2d 314 (1973) (racial and ethnic group); Whitcomb v. Chavis, 403 U.S. 124, 153-55, 91 S.Ct. 1858, 1874-75, 29 L.Ed.2d 363 (1971) (racial group); Davis v. Bandemer, 478 U.S. 109, 131-33, 106 S.Ct. 2797, 2809-11, 92 L.Ed.2d 85 (1986) (plurality opinion) (political group); id. at 151-52, 91 S.Ct. at 1873 (O’Connor, J., concurring in judgment). Until Shaw, no majority opinion of the Supreme Court had held that a state redistricting plan that did not cause concrete, material harm to the voting strength of an identifiable group of citizens in one of these two ways could nonetheless be challenged under the Equal Protection Clause on the ground that it impermissibly took race into account in drawing district lines; the only intimations to that effect had come in separate opinions of single justices. And a majority of the Supreme Court had squarely held that the Equal Protection Clause did not prevent a jurisdiction subject to § 5 of the Voting Rights Act from deliberately creating districts in which racial minorities were a majority, so long as it did so with the purpose of complying with the Voting Rights Act and did not unfairly dilute or cancel out the voting strength of any other racial group. UJO v. Carey, 430 U.S. 144, 161-68, 97 S.Ct. 996, 1007-11, 51 L.Ed.2d 229 (1977) (plurality opinion); at 179-80, 97 S.Ct. at 1016-17 (Stewart, J., concurring in the judgment); see also Metro Broadcasting, Inc. v. FCC, 497 U.S. 547, 584, 110 S.Ct. 2997, 3019, 111 L.Ed.2d 445 (1990) (“a State subject to § 5 of the Voting Rights Act ... may ‘deliberately creat[e] or preserv[e]’ black majorities in particular districts in order to ensure that its reapportionment plan complies with [the Voting Rights Act]”) (quoting UJO, 430 U.S. at 161, 97 S.Ct. at 1007-08). The Supreme Court’s decision in Shaw has now recognized a third way, characterized by the Court as analytically distinct from the two earlier recognized, in which a state redistricting plan might offend the Equal Protection Clause. It is that the plan was designed “to separate voters into different districts on the basis of race,” without “sufficient justification.” Shaw, — U.S. at -, 113 S.Ct. at 2828. Such race-based redistricting legislation, said the Court, presents the same dangers as any other state law that deliberately classifies citizens by race: it threatens “to stigmatize individuals by reason of their membership in a racial group,” “to incite racial hostilities],” and “to stimulate our society’s latent race-consciousness.” Id. at -, 113 S.Ct. at 2824-25 (internal quotations omitted). It should therefore be subject to “the same close scrutiny that we give other state laws that classify citizens by racé,” id. at -, 113 S.Ct. at 2825; that is, be upheld only if “narrowly tailored to further a compelling governmental interest.” Id. at -, 113 S.Ct. at 2832. The Court made clear that strict scrutiny must be applied even to those race-based redistricting schemes that purport to have been enacted with the “benign” purpose of giving effect to minority voting strength in order to comply with the Voting Rights Act, “because without [strict scrutiny], a court cannot determine whether or not the discrimination truly is ‘benign.’ ” Id. at -, 113 S.Ct. at 2830; see id. at -, 113 S.Ct. at 2826 (“district lines obviously drawn for the purpose of separating voters by race require careful scrutiny under the Equal Protection Clause regardless of the motivations underlying their adoption”). Finally, the Court held that “a plaintiff challenging a [state redistricting] plan under the Equal Protection Clause may state a claim by alleging that the legislation, though race-neutral on its face, rationally cannot be understood as anything other than an effort to separate voters into different districts on the basis of race, and that the separation lacks sufficient justification.” Id. at -, 113 S.Ct. at 2828. Because plaintiffs had made such an allegation in their Amended Complaint, the Court concluded, they had stated a valid Equal Protection claim. This states our understanding of the general nature of the Equal Protection claim recognized by the Court in this case and remanded to us for trial. It is, in effect, the same basic claim that the Court has recognized in other contexts in which race-based remedial measures, or “affirmative action,” undertaken by state actors have been challenged, typically by members of the majority race claiming “reverse discrimination.” See Regents of the Univ. of Calif. v. Bakke, 438 U.S. 265, 98 S.Ct. 2733, 57 L.Ed.2d 750 (1978) (admission to public institution of higher learning); Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 106 S.Ct. 1842, 90 L.Ed.2d 260 (1986) (public employment); and City of Richmond v. J.A. Croson Co., 488 U.S. 469, 109 S.Ct. 706, 102 L.Ed.2d 854 (1989) (government contracting). That being its general nature, there remain significant problems concerning how the substantive elements and procedural incidents of such a claim are to be transposed to the unique voting rights context: specifically, the problems of standing; the nature of the showing required to trigger strict scrutiny; the allocation of the burden of proof at the strict scrutiny stage; the types of compelling state interests that might justify such race-based action; and the meaning of narrowly tailored in this context. On all of these matters, the parties are in flat disagreement. We now turn to them. B. Standing Defendant-intervenors contend that the action should be dismissed for lack of standing. They point out that the Supreme Court’s decision in this case technically held only that, as a matter of substantive Equal Protection doctrine, plaintiffs could state a valid Equal Protection challenge to the Plan without alleging that it had the purpose and effect of diluting their group voting strength. They emphasize that the Court did not hold that plaintiffs had standing to assert such a claim, nor did it purport to relieve them from the obligation to satisfy the normal requirements for standing: a showing that they have personally suffered, or are in immediate danger of suffering, some actual “injury in fact” that is “fairly traceable” to the challenged conduct and “likely to be redressed” by the relief they seek. See Lujan v. Defenders of Wildlife, 504 U.S. -, -, 112 S.Ct. 2130, 2136, 119 L.Ed.2d 351 (1992). And they argue that plaintiffs have now failed to prove that the Plan has caused them the sort of “injury in fact” required to give them standing to challenge it. They concede that the clear implication, if not the actual holding, of the Supreme Court’s decision is that plaintiffs need not show that the Plan has caused injury to their voting strength. But they read the Court’s discussion of the other ways in which race-based districting legislation can injure voters, — U.S. at ---, 113 S.Ct. at 2827-28, as implying that a voter has standing to challenge such legislation only if he can show that it has actually injured his political interests in one of two other ways: (i) by causing the representative elected from his district to represent only the interests of a particular racial group of which he is not a member; or (ii) by exacerbating existing patterns of racial bloc voting by a racial' group of which he is not a member. While they concede that the Supreme Court’s decision can be read to hold that plaintiffs had sufficiently alleged one or both of these injuries to establish standing for purposes of Rule 12(b)(6), they say it cannot be read to foreclose the possibility that this action might yet be dismissed for lack of standing, should plaintiffs fail to prove those allegations at trial. See Lujan, 504 U.S. at -, 112 S.Ct. at 2136-37 (while generalized allegations of injury resulting from the challenged conduct may be adequate to establish standing at the pleading stage, when the court is obliged to accept all material allegations of the complaint as true, they will not suffice to carry plaintiffs burden of proof on standing at trial). Defendant-intervenors’ argument is not without some force. The federal courts are not a general forum for the airing of any and all complaints a citizen may have about the way in which his government conducts its business, Los Angeles v. Lyons, 461 U.S. 95, 112, 103 S.Ct. 1660, 1670-71, 75 L.Ed.2d 675 (1983), and they do not have “an unconditioned authority to determine the constitutionality of legislative or executive acts.” Valley Forge Christian College v. Americans United, 454 U.S. 464, 471, 102 S.Ct. 752, 757-58, 70 L.Ed.2d 700 (1982). An unbroken line of Supreme Court decisions establishes that a federal court may decide the merits of a constitutional challenge to a legislative act only when asked to do so by a party who has personally suffered, or is in immediate danger of suffering, some actual “injury in fact” that is “fairly traceable” to the challenged act and “likely to be redressed” by the relief he seeks. Lujan, 504 U.S. at -, 112 S.Ct. at 2136; Allen v. Wright, 468 U.S. 737, 750, 104 S.Ct. 3315, 3324, 82 L.Ed.2d 556 (1984); Valley Forge, 454 U.S. at 472, 102 S.Ct. at 758-59; Simon v. Eastern Ky. Welfare Rights Org., 426 U.S. 26, 38, 96 S.Ct. 1917, 1924, 48 L.Ed.2d 450 (1976); Warth v. Seldin, 422 U.S. 490, 498-99, 95 S.Ct. 2197, 2204-05, 45 L.Ed.2d 343 (1975); Flast v. Cohen, 392 U.S. 83, 97, 88 S.Ct. 1942, 1951, 20 L.Ed.2d 947 (1968). These three elements — injury in fact, causation, and redressability — are the “irreducible constitutional minimum” for standing, derived directly from the Article III case-or-controversy limitation on the federal judicial power. Northeastern Florida Contractors v. Jacksonville, — U.S. -, ---, 113 S.Ct. 2297, 2301-02, 124 L.Ed.2d 586 (1993); Lujan, 504 U.S. at -, 112 S.Ct. at 2136. As such, they are “an indispensable part of the plaintiffs case,” which he must prove at trial “with the [same] manner and degree of evidence as any other matter on which [he] bears the burden of proof,” id. at-, 112 S.Ct. at 2136, before he is entitled to have the court rule on the merits of his claim. See Warth, 422 U.S. at 499, 95 S.Ct. at 2205; Allen, 468 U.S. at 750, 104 S.Ct. at 3324. At first blush, it would appear that plaintiffs have not even alleged, much less proved, the sort of “injury in fact” required by this line of decisions. The Supreme Court has emphasized that such a injury must be “concrete” in both a qualitative and a temporal sense, Whitmore v. Arkansas, 495 U.S. 149, 155, 110 S.Ct. 1717, 1722-23, 109 L.Ed.2d 135 (1990), which means that it must be both “distinct and palpable” in nature, Warth, 422 U.S. at 501, 95 S.Ct. at 2206, as opposed to “[a]bstract,” O’Shea v. Littleton, 414 U.S. 488, 494, 94 S.Ct. 669, 675, 38 L.Ed.2d 674 (1974), and “real and immediate,” as opposed to “conjectural” or “hypothetical,” Lyons, 461 U.S. at 101-02, 103 S.Ct. at 1664-65. See generally Whitmore, 495 U.S. at 155, 110 S.Ct. at 1722-23. It surely is arguable that the injuries plaintiffs allege the Plan has inflicted upon them do not satisfy these criteria. Their primary claim is that the Plan “injures” them — as well as all other citizens, residents, and registered voters of the State of North Carolina — because it threatens to perpetuate archaic racial stereotypes and to increase racial divisions in society. See Plaintiffs’ Responses to D efendant-Intervenors’ First Set of Interrogatories, Responses Nos. 1 and 2. In addition, the two plaintiffs who reside in districts in which African-Americans are a majority under the Plan— Shaw and Shimm — claim that it “injures” them in another way, by causing them to doubt the quality of their representation in Congress and making them feel “disenfranchised.” See Shimm testimony, Tr. pp. 1084-93. All of these expressly claimed harms could be thought abstract, theoretical, and merely speculative, not concrete and palpable; all have the marks of the sort of “injury in perception” rather than “in fact,” Powers v. Ohio, 499 U.S. 400, 426-27, 111 S.Ct. 1364, 1379-80, 113 L.Ed.2d 411 (1991) (Scalia, J., dissenting), that the Supreme Court has previously found insufficient to confer Article III standing. Nevertheless, as we now understand the nature of the claim, we believe the Supreme Court would hold that the plaintiffs have adequately established their standing to assert it. That claim, as indicated, is that the Plan violates the Equal Protection Clause simply because it “classifies” voters — that is, assigns them to particular voting districts— on the basis of their race, without sufficiently compelling justification. In other contexts, the Supreme Court has recognized that a state’s use of racial classifications necessarily inflicts “stigmatic” injury, Allen, 468 U.S. at 755, 104 S.Ct. at 3326-27, which, though “abstract” in the sense that it cannot easily be quantified, is sufficient “injury in fact” to give any citizen who has been “personally denied equal treatment” by such a classification standing to challenge it under the Equal Protection Clause. See Bakke, 438 U.S. at 281 n. 14, 98 S.Ct. at 2743 n. 14 (opinion of Powell, J., joined by four other justices) (white male applicant to state medical school has standing to challenge admission program that sets aside a certain number of places in the class for minority applicants, even though he cannot show that he would have been admitted but for that set-aside program); Northeastern Florida Contractors, — U.S. at -, 113 S.Ct. at 2303 (white contractors have standing to challenge municipal ordinance that sets aside a certain percentage of city contracts for minority-owned businesses, even though they cannot show that they would have been awarded a contract but for the set-aside program); see also Heckler v. Mathews, 465 U.S. 728, 739-40, 104 S.Ct. 1387, 1395-96, 79 L.Ed.2d 646 (1984) (applying same standing rule in action challenging federal government’s use of gender-based classification under the equal protection component of the Due Process Clause of the Fifth Amendment). On remand, plaintiffs seem to have added a claim of such “stigmatic” injury to the list of harms that they claim the Plan has inflicted upon them. See Plaintiffs’ Post-Trial Brief at 4; Plaintiffs’ Responses to Defendanb-Intervenors’ First Set of Interrogatories, Responses Nos. 1 and 2. Under the reasoning of Bakke and its progeny, this “stigmatic” injury would appear sufficient to give them standing to challenge the Plan, if they can show that they were “personally denied equal treatment” by it. But difficulties remain, which in fairness must be recognized. It is not immediately obvious how this liberal rule of standing developed in Bakke and later eases challenging explicit racial classifications can be transposed to race-based districting. To date, all of the cases in which the dignitary injury resulting from a racial classification has been found sufficient to confer Article III standing have involved the use of race to disadvantage members of a particular racial group relative to other persons in the distribution of some governmental benefit. Bakke and Northeastern Florida Contractors, for example, involved explicit racial set-asides that prevented applicants of a certain race from being considered for a particular governmental benefit. In such eases, the classification clearly subjects the members of the disfavored group to “unequal treatment,” because it makes it more difficult for them to obtain the benefit in question than it is for other persons. As the Court explained, “the ‘injury in fact’ in an Equal Protection case of th[at] variety is the denial of equal treatment resulting from the imposition of the barrier” which denies members of one racial group the opportunity to compete for the benefit on an equal footing with members of other racial groups. Northeastern Florida Contractors, — U.S. at -, 113 S.Ct. at 2303. But laws that assign voters to particular districts on the basis of their race, unlike racial set asides, do not appear to subject members of any racial group to “unequal treatment” vis-a-vis any other. So long as all citizens may vote, all individual votes receive the same weight, and no racial group’s voting strength is unduly diluted, all raeial groups are by definition given a fair opportunity to participate in the electoral process, even if some are better positioned than others to elect representatives of their choice in particular districts. See Shaw, — U.S. at - & n. 4, 113 S.Ct. at 2846 & n. 4 (Souter, J., dissenting); see also Whitcomb v. Chavis, 403 U.S. at 153-55, 91 S.Ct. at 1874-75 (fact that redistricting scheme causes members of a particular group to suffer repeated defeats at the polls and fails to provide them with proportional representation does not mean that it denies them an “equal opportunity” to participate in the electoral process); Davis v. Bandemer, 478 U.S. at 131-32, 106 S.Ct. at 2809-10 (same). Despite this possible awkwardness, we think the Shaw Court must have intended to transpose to race-based districting the expansive concept of standing to challenge racial classifications born in Bakke and brought to maturity in Northeastern Florida Contractors. The linchpin of the Court’s analysis in Shaw was that race-based districting is no different than any other legislation that deliberately classifies citizens by race; it was on that basis that the Court held such legislation subject to strict scrutiny under the Equal Protection Clause. See Shaw, — U.S. at ---, 113 S.Ct. at 2824-25. Having equated race-based districting with legislation that explicitly classifies citizens on the basis of race for purposes of the underlying substantive law, it seems inconceivable that the Court would not also equate the two for purposes of standing, which serves merely to define the class of persons who have a sufficient personal stake in a particular substantive claim to litigate it in court. We therefore believe that the same expansive notion of standing developed in Bakke and other cases challenging explicit racial set-asides must also apply to cases challenging race-based districting; that is, that any person who can show that a redistricting plan has assigned him to vote in a particular district at least in part because of his race has standing to challenge it, even if he cannot show that it has caused any concrete injury to his political interests. In this context, the “injury in fact” presumably is the state’s decision to deal with the voter as a member of a particular racial class, rather than as an individual, in assigning him to a voting district, which is an affront to his “personal dignity.” See J.E.B. v. Alabama ex rel. T.B., - U.S. -, -, 114 S.Ct. 1419, 1434, 128 L.Ed.2d 89 (1994) (Kennedy, J., concurring in the judgment); Metro Broadcasting, Inc. v. FCC, 497 U.S. 547, 602, 110 S.Ct. 2997, 3028-29, 111 L.Ed.2d 445 (1990) (O’Connor, J., dissenting) (“At the heart of the Constitution’s guarantee of equal protection lies the simple command that the Government must treat citizens as ‘individuals, not as simply components of a racial ... class’ ”). That race-based redistricting necessarily visits this indignity equally upon all races would appear to be of no consequence in the standing analysis, for “racial classifications do not become legitimate [because] all persons suffer them in equal degree.” Powers, 499 U.S. at 410, 111 S.Ct. at 1370. Such a broad standing principle eoneededly, and with all respect, has disquieting implications, which defendant-intervenors contend demonstrate its unacceptability. It would appear to mean that any person registered to vote in a jurisdiction with a districting plan that contains one or more districts which have been deliberately, designed to have a certain racial composition has standing to challenge that plan, even if he is not assigned to vote in one of those districts himself. And its ultimate implication, as defendantintervenors emphasize, is that any member or members of a racial minority for whose presumed benefit a majority-minority district has been created would have standing to challenge it as an improper “racial classification,” even if they cannot prove the sort of injury to their group voting strength required to make out a constitutional or statutory vote-dilution claim. See Croson, 488 U.S. at 494, 109 S.Ct. at 722 (plurality) (all racial classifications immediately suspect under Equal Protection Clause, regardless of which race is benefitted or burdened). Despite these difficulties, we understand Shaw necessarily to have implied a standing principle that accords standing to challenge a race-based redistricting plan to any voter who can show that it has assigned him to vote in a particular electoral district in part at least because of his race. ' C. Proof Required to Trigger Strict Scrutiny The threshold showing required by Shaw to establish that a particular districting plan is subject to strict scrutiny is not immediately clear, as the conflicting contentions of the parties illustrate. Plaintiffs and their supporting intervenors contend that after Shaw, strict scrutiny applies to any districting plan in which consideration of race is shown to have played a “substantial” or “motivating” role in the line-drawing process, even if it was not the only factor that influenced that process. They note that it has long been established, outside the districting context, that strict scrutiny applies to any legislation in which a racially-discriminatory purpose is shown to have played a “substantial” or “motivating” role, even if it was not the “sole,”- “dominant,” or even the “primary” purpose of the legislation. Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252, 265-66, 97 S.Ct. 555, 568-64, 50 L.Ed.2d 450 (1977); see Hunter v. Underwood, 471 U.S. 222, 231, 105 S.Ct. 1916, 1921-22, 85 L.Ed.2d 222 (1985). They contend that Shaw simply transposed the Arlington Heights “substantial” or “motivating” role test to the districting context, and that in this context, it is necessarily satisfied by proof that the lines of a particular plan were deliberately drawn so as to create one or more districts in which a particular racial group has a majority, even if factors other than race also played a substantial role in the location and shape of those districts. As they point out, this is the interpretation of Shaw adopted by all three members of the court in Hays v. Louisiana, 839 F.Supp. 1188 (W.D.La.1993) (Hays I), vacated, - U.S. -, 114 S.Ct. 2731, 129 L.Ed.2d 853 (1994), the first three-judge court to consider a Shaw-Yike challenge to a race-based redistricting plan in the aftermath of the Supreme Court’s decision here. See id. — U.S. at - & n. 46, 113 S.Ct. at 1202 & n. 46 (majority op.) (under Shaw, strict scrutiny is triggered by proof that race was an “important” or “significan^]” factor in the line-drawing process, even if it was not the only factor that influenced that process); id. — U.S. at -, 113 S.Ct. at 1216 (Walter, J., concurring) (strict scrutiny applies if race was “a motivating factor” in the line-drawing process); Jeffers v. Tucker, 847 F.Supp. 655, 671-72 (E.D.Ark.1994) (Eisele, J., concurring) (same). The state and its allies, by contrast, argue that mere proof that the legislature deliberately drew district lines in order to create one or more districts in which a particular racial group has a majority is not sufficient to trigger strict scrutiny under Shaw. Instead, they read Shaw as holding that strict scrutiny applies only to plans that are shown to (i) create districts with highly irregular shapes; (ii) in which citizens of particular racial groups are concentrated in numbers disproportionate to their representation in the state’s population as a whole; and (iii) whose shape and location cannot rationally be explained by reference to any districting factor other than race. While they concede that proof of the first two factors may give rise to an inference that a plan is a “racial gerrymander” triggering strict scrutiny, they maintain that the state may rebut that inference by presenting evidence that the location and shape of the districts can rationally be explained by reference to some districting principle other than race, and that if the state does this, strict scrutiny does not apply and the plan must be judged instead under the lenient rational basis test. In their view, the Shaw Court was concerned not about all deliberate use of race in redistricting, but only about a narrow category of “exceptional cases” in which race-based redistricting produces majority-minority districts so peculiar-looking that they call attention to their racial purpose and thereby serve to exacerbate, rather than to alleviate, the existing racial divisions in society. It is certainly possible to read the majority opinion in Shaw as holding no more than the state and its allies say it does. See DeWitt v. Wilson, 856 F.Supp. 1409 (E.D.Cal.1994) (adopting this reading of Shaw). As they point out, the plaintiffs’ reading of Shaw is hard to square with the nature of the Supreme Court’s remand in this case. It was clear, on the record before the Court, that the desire to create two districts in which African-Americans were a majority of voting age population was indeed a substantial motivating factor behind the enactment of this particular plan. Our opinion below had indicated that the state had conceded this fact in the proceedings before us, 808 F.Supp. at 470, and several of the dissents in the Supreme Court called this concession to the majority’s attention. See — U.S. at -, 113 S.Ct. at 2838 (White, J., dissenting); id. at -, 113 S.Ct. at 2843 (Stevens, J., dissenting). If the deliberate creation of majority-minority districts was all that it took to trigger strict scrutiny, the most logical thing for the Court to have done would have been to note the state’s concession, announce that strict scrutiny was therefore applicable, and remand for application of that standard, since the factual record at that stage was not sufficiently well-developed to allow the Court to do so itself. But the Court did not do this; instead, it held only that plaintiffs’ allegations were sufficient to state a claim that the Plan was a racial gerrymander subject to strict scrutiny, id. at -, 113 S.Ct. at 2832, and it suggested several times that the state might yet avoid strict scrutiny on remand, by producing evidence that would somehow “rebut” or “contradict” that allegation of racial gerrymandering. Id. at-, 113 S.Ct. at 2832 (“If the allegation of racial gerrymandering remains uncontradieted, the District Court further must determine whether the North Carolina plan is narrowly tailored to further a compelling governmental interest”); id. at -, 113 S.Ct. at 2830 (“[I]f appellants’ allegations of a racial gerrymander are not contradicted on remand, the District Court must determine whether the General Assembly’s reapportionment plan satisfies strict scrutiny”). In addition, the majority explicitly reserved the question whether the deliberate creation of majority-minority districts, without more, always triggers strict scrutiny, id. at -, 113 S.Ct. at 2828 (“[W]e express no view as to whether ‘the intentional creation of majority-minority districts, without more,’ always gives rise to an equal protection claim”). For these reasons, the state’s reading of Shaw cannot be rejected out of hand. Despite its surface plausibility, however, we do not think the state’s interpretation of Shaw can be correct. If Shaw meant no more than the state says it does, it would have precious little practical effect on race-based districting, for it would require states to defend the deliberate creation of majority-minority districts under strict scrutiny only when they could not come up with any rational explanation for the location and shape of those districts other than race. This would seldom be the case, given the wide variety of other districting principles that may be used to justify even the most peculiar-looking districts. The language and structure of the Court’s opinion, if not its actual holding, strongly suggest that the Court intended to do much more than this. As we read the opinion, it was intended to place race-based redistricting legislation into the same category as all other forms of race-based state action after Croson, for purposes of analysis under the Equal Protection Clause: subject to strict scrutiny upon a showing that the state’s use of race to distinguish among citizens was deliberate, whether or not it can be said to have had a “benign” or “remedial” purpose. There are admittedly some problems with this reading, though, which the state defendants and their allies properly point out. We therefore analyze the relevant portions of the Court’s opinion in some detail. The whole thrust of the Court’s description of the remanded claim is to locate it within post-Croson “color-blind” Equal Protection jurisprudence, in which strict scrutiny is triggered simply by the fact that legislation “classifies” citizens by race — whatever its asserted purpose, however its presumed benefits and burdens are cast, and whether the racial classification is overt or implicit. The Court begins with a textbook exposition of the basic premises and precepts of that jurisprudence: The “central purpose” of the Equal Protection Clause is “to prevent the States from purposefully discriminating between individuals on the basis of [their] race.” — U.S. at -, 113 S.Ct. at 2824. Laws that deliberately distinguish between citizens on the basis of their race are “odious to a free people whose institutions are founded upon the doctrine of equality,” because they “threaten to stigmatize individuals by reason of their membership in a racial group and to incite racial hostility.” Id. at -, 113 S.Ct. at 2824 (internal quotations omitted). They must therefore be subject to the strictest judicial scrutiny, even when claimed to have a “benign” or “remedial” purpose, for “ ‘[ajbsent searching judicial inquiry ..., there is simply no way of determining wh[ich] [racial] classifications are “benign” or “remedial” and wh[ieh] are in fact motivated by illegitimate notions of racial inferiority or simple racial politics.’ ” Id. at -, 113 S.Ct. at 2824 (quoting Croson, 488 U.S. at 493, 109 S.Ct. at 721-22 (plurality)). This strict scrutiny applies not only to legislation that is overtly race-based — that is, that draws “explicit racial distinctions” on its face, as did the minority set-aside policy in Croson — but also to legislation that employs a classification which, though facially race-neutral, is shown to be “ ‘an obvious pretext for racial discrimination.’” Id. at -, 113 S.Ct. at 2825. And one way to prove that a facially race-neutral law is in fact a pretext for racial discrimination is to show that it draws distinctions that are “‘unexplainable on grounds other than race.’ ” Id. at -, 113 S.Ct. at 2825. The Court then turns to a discussion of how these principles apply in the context of electoral districting. Id. at -, 113 S.Ct. at 2825-28. It begins by stating that “district lines obviously drawn for the purpose of separating voters by race require careful scrutiny under the Equal Protection Clause, regardless of the motivations underlying their adoption.” Id. at -, 113 S.Ct. at 2826. It observes that it is normally difficult to prove that a single-member districting plan “purposefully distinguishes between voters on the basis of race,” because such plans “typically do[] not classify persons at all,” but “tracts of land, or addresses,” and there are many legitimate non-racial reasons why a legislature might choose to construct districts in a way that concentrated members of a particular racial group in one or more of them. Id. at-, 113 S.Ct. at 2826. But it says there are a handful of “exceptional cases” in which proving that a redistricting plan “purposefully distinguishes between voters on the basis of race,” hence is subject to strict scrutiny, “will not be difficult at all”: those in which the plan contains district lines “so highly irregular” that they “rationally cannot be understood as anything other than an effort to ‘segregate] ... voters’ on the basis of race.” Id. at -, 113 S.Ct. at 2826. Two examples of plans that fall into this category are given: the actual plan in Gomillion, in which “a tortured municipal boundary line was drawn to exclude black voters,” and a hypothetical plan that “concentrate[s] a dispersed minority population in a single district by disregarding traditional districting principles such as compactness, contiguity, and respect for political subdivisions.” Id. at -, 113 S.Ct. at 2826-27. In such cases, the Court explains, the irregular shape of the districts serves as powerful circumstantial evidence that the legislature was in fact motivated by a racial purpose when it drew them. See id. at -, 113 S.Ct. at 2827 (the legislature’s failure to observe “traditional districting principles” is “objective” evidence that the districts were “gerrymandered on racial lines”); id. at -, 113 S.Ct. at 2827 (“ ‘dramatically irregular shapes may have sufficient probative force to call for an explanation’”) (quoting Karcher v. Daggett, 462 U.S. 725, 755, 103 S.Ct. 2653, 2672, 77 L.Ed.2d 133 (1983) (Stevens, J., concurring)). We think it readily apparent from the Court’s analysis that what it finds potentially offensive about the Plan under challenge here — from a constitutional standpoint — is not that it is aesthetically “ugly,” but that its drafters may deliberately, and unjustifiably, have taken race into account in assigning voters to particular districts. See — U.S. at -, 113 S.Ct. at 2832 (“race-based districting by our state legislatures,” like “[r]acial classifications of any sort,” must be subject to “close judicial scrutiny,” because it “reinforce[s] the belief, held by too many for too much of our history, that individuals should be judged by the color of their skin,” and threatens to “balkanize us into competing racial factions”). The peculiar, “bizarre,” or “ugly” shapes of its districts has some significance in the constitutional analysis at this stage, but only as circumstantial evidence that the disproportionate concentration of members of a particular race in certain districts was something the line-drawers deliberately set about to accomplish, as opposed to being simply an accidental consequence of a line-drawing process driven by other districting concerns. See id. at -, 113 S.Ct. at 2827. The necessary implication of this analysis is that strict scrutiny of an electoral redistricting plan is now triggered by proof— by any means, including state concession, bizarre shape, or some combination of the various factors typically used to prove the “intent” element of an Equal Protection claim under Arlington Heights — that racial considerations played a “substantial” or “motivating” role in the line-drawing process, even if they were not the only factor that influenced that process. See Hays I, 839 F.Supp. at 1202 & n. 46 (majority op.); id. at 1216 (Walter, J., concurring); Jeffers, 847 F.Supp., at 671-72 (Eisele, J., concurring). This “race-a-motivating-factor” triggering test is necessarily met by proof that the plan’s lines were deliberately drawn so as to create one or more districts in which a particular racial group is a majority, even if factors other than race are shown to have played a significant role in the precise location and shape of those districts. If the line-drawing process is shown to have been infected by such a deliberate racial purpose, strict scrutiny cannot be avoided simply by demonstrating that the shape and location of the districts can rationally be explained by reference to some districting principle other than race, for the intentional classification of voters by race, though perhaps disguised, is still likely to reflect the “impermissible racial stereotypes,” Shaw, — U.S. at -, 113 S.Ct. at 2827, “ ‘illegitimate notions of racial inferiority’ ” and “ ‘simple racial polities,’ ” id. at -, 113 S.Ct. at 2824, that strict scrutiny is designed to “ ‘smoke out.’ ” Croson, 488 U.S. at 493, 109 S.Ct. at 721 (plurality). This is the obvious implication of the Shaw majority’s effort to import post-Crosow. Equal Protection principles into the electoral districting context, see Aleinikoff & Isaaeharoff, supra, at 664-43, and it is the reading of Shaw most consistent with the views on Equal Protection expressed by the members of the Shaw majority in their various opinions in Wygant, Croson, and Metro Broadcasting. See also Johnson v. De Grandy, - U.S. -, --, 114 S.Ct. 2647, 2664-67, 129 L.Ed.2d 775 (1994) (Kennedy, J., concurring in part and concurring in the judgment) (reading Shaw as applying “to the drawing of electoral and political boundaries” the Croson principle that “the sorting of persons with an intent to divide by reason of race raises the most serious constitutional questions,” triggering strict scrutiny under the Equal Protection Clause regardless of the race of those burdened or benefited by it, and therefore admonishing “state and federal officials with responsibilities related to redistricting, as well as reviewing courts, to recognize that explicit race-based districting ... must comply with the overriding demands of the Equal Protection Clause”). But, the state defendants and their allies fairly ask, if the Court intended the deliberate creation of majority-minority districts, standing alone, to trigger strict scrutiny, why did it not rest its remand simply on that ground, as it easily could have done here, given the state’s concession? Why did it deliberately reserve the question whether the deliberate creation of majority-minority districts, without more, will always give rise to an Equal Protection claim, and write an opinion that can be read to confine strict scrutiny to cases in which the lines cannot rationally be explained on any ground other than race? The question is by no means easily answered, but we think there must be an answer that does not undercut our previously-stated understanding of Shaw. Several can be ventured. First, a broad holding that strict scrutiny applies to any plan that deliberately creates majority-minority districts, even when those districts are not highly irregular, would have required the Court to overrule its earlier decision in UJO. By confining its discussion to bizarre-looking districts, the Court was able to distinguish UJO as involving a majority-minority district of relatively normal shape. See — U.S. at -, 113 S.Ct. at 2829. Second, the Court may have thought it unfair to hold the State of North Carolina, which had not yet even filed an answer in this action, to a concession it made in response to a Rule 12(b)(6) motion at a time when it had fair reason to believe that UJO, under which the concession would have made no difference, was still the controlling authority. Finally, the Court may have viewed the concession made by the state here as