Full opinion text
ORDER ON MOTIONS TO DISMISS AND FOR SUMMARY JUDGMENT McKINNEY, District Judge. This matter comes before the Court on a motion to dismiss and motions for summary judgment filed by various parties. The intervening defendants have filed a motion to dismiss Count II, and a motion for summary judgment on Counts I and III of the plaintiffs’ fifth amended complaint. The Lake County Election Board members have apparently joined the motion for summary judgment, but the record is not clear as to whether they have joined in the motion to dismiss filed by the intervening defendants. In conjunction with their response to the intervening defendants’ motion to dismiss, the plaintiffs filed a motion for partial summary judgment on Count II. They also filed a cross-motion for summary judgment on Counts I and III. For the reasons discussed below the Court GRANTS the intervening defendants’ motion to dismiss Count II, GRANTS summary judgment in favor of all defendants on Counts I and III, and DENIES the plaintiffs’ motions for summary judgment on all counts. An assortment of motions to strike have also been filed by the intervening defendants, joined by the defendants. The motion to strike plaintiffs’ motion for partial summary judgment for failure to comply with L.R. 56.1 is moot in light of the Court’s granting of intervening defendants’ motion to dismiss Count II. The motions to strike various pieces of evidence offered by the plaintiffs in opposition to or support of the motions for summary judgment are well-taken and to the extent that the proffered evidentiary materials contain inadmissible hearsay, lay opinions, speculations, or conclusions, they are stricken. In addition, because the plaintiffs failed to provide the Court with any sort of guide by which to navigate the maze of evi-dentiary submissions, or with which to connect the various pieces of evidence with the proposed “material facts related to” the various summary judgment motions, the proffered evidence is less than helpful. See Waldridge v. American Hoechst Corp., 24 F.3d 918, 923 (7th Cir.1994) (the statements and designations required by local rules provide “roadmaps,” without which the court should not have to proceed). The plaintiffs mistake the Supreme Court’s admonition not to apply the Gingles factors in a mechanical fashion, for permission to ignore the. Federal Rules of Procedure and this District’s local rules. The requirements of those rules are aimed at facilitating the use of summary judgments for weeding out claims that are not based on reliable evidence or are factually unsupported. See Celotex Corp. v. Catrett, 477 U.S. 317, 323-34, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d 265 (1986). Just because the substantive standards in a particular area of law are to be applied in a comprehensive, non-restrictive fashion, does not mean that a party can overcome a well-supported motion for summary judgment with global citations to general treatises, historical texts, and old newspaper and periodical articles. Rule 56 states that to overcome summary judgment, the non-movant must set forth specific facts supported by depositions, answers to interrogatories, and admissions on file, together with any affidavits, showing that a genuine issue exists. Plaintiffs’ evidentiary materials are not only difficult to comprehend in relation to the briefing submitted, they are also permeated with conclusions about the ultimate facts that must be found in this case in order to establish a violation of § 2. To the extent that the materials contain hearsay, conclusions, speculations, unsupported opinions and statements of fact, the plaintiffs’ evidentiary materials will be disregarded. Moreover, the Court will not refer to any evidentiary materials that are not properly designated as supporting a particular material fact. Therefore, defendants’ various motions to strike plaintiffs’ evidentiary materials, including the disputed affidavits, are sustained in part and overruled in part. With respect to the Voters’ thirty-five page brief submitted in response to defendants’ filing of supplemental authority, the Court finds that plaintiffs’ brief is an unwarranted additional filing in opposition to defendants’ summary judgment motion and it should, therefore, be stricken. J. FACTUAL & PROCEDURAL BACKGROUND The plaintiffs are “black citizens, residents of Lake County, Indiana, and registered voters” (the “Voters”). Fifth Amended Complaint (hereafter “Complaint”) at ¶2. Lake County is located in the far northwest corner of Indiana, near Lake Michigan and Chicago, and as of the 1990 census the county contained 475,594 people, 116,688 of whom are African-American (24.5%). Complt. ¶ 6. The voting age population is 342,427, 22.5% of whom are African-American. Defendants Frederick T. Work, Anna N. Anton and Jerome Reppa are the current members of the Lake County Election Board, and are sued in their official capacities. Anton is also the Clerk of the Lake County Circuit and Superior Courts. Complaint at ¶3. The intervening defendants include the current or former members of the Lake County Judicial Nominating Commission (the “Commission”) and certain of the current or former judges of the Lake County Superior Court (the “Judges” or collectively the “Intervenors”). For purposes of the motion to dismiss Count II, all of the well-pleaded facts in the Complaint will be taken as true. The Voters contend that they and other black citizens have been deprived of a fair opportunity to elect judges of their choice in Lake County. The Superior Court of Lake County consists of four divisions, which includes the civil, criminal and juvenile divisions, with ten judges, and a separate county division, with three judges. Under Indiana law, the judges of the county division are elected by popular vote on an at-large, county-wide basis. The judges of the other divisions, however, are selected differently. If a vacancy occurs in one of those divisions, the governor of Indiana appoints a new judge from a list of three nominees recommended by the Lake County Judicial Nominating Commission, which is established specifically to assist with filling vacancies on the Lake County Superi- or Court. See Ind.Code §§ 33-5-29.5-28 to 29.5-38. The Commission consists of a total of nine members under the current law. It includes the Chief Justice of the Supreme Court of Indiana, or his designee, four attorney-members selected by the licensed attorneys of Lake County, and four non-attorney citizens of Lake County. The non-attorney members were appointed by the governor under the old law, but are now appointed by members of the Lake County Board of Commissioners. The Commission members review applications for judicial appointments, assess each candidate in light of statutory requirements, and then recommend the three most highly qualified candidates to the governor. Ind. Code § 33-5-29.5-36(a). The Commission is also responsible for including a written evaluation of the qualifications of each candidate with its list of three recommended candidates. Ind.Code § 33-5-29.5-37. After a judge is appointed to the civil, criminal, or juvenile divisions, he or she serves an initial term commencing on the effective date of the appointment and continuing through December 31 in the year of the general election that follows the expiration of two years from the effective date. Ind.Code § 33-5-29.5-41. At the conclusion of the judge’s term, the judge must submit to an at-large, county-wide retention election in order to serve another term. If the judge fails to win retention a vacancy ensues, and the Commission submits another list of three nominees to the governor who appoints a replacement. In their Fifth Amended Complaint, which was filed on October 20, 1993, the Voters seek declaratory and injunctive relief to enforce the provisions of § 2 of the Voting Rights Act of 1965 (“the Act”), as amended, located at 42 U.S.C. § 1973. They also seek to enforce their rights under the Fourteenth and Fifteenth Amendments through the Civil Rights Act located at 42 U.S.C. § 1988 (“§ 1983”). The Voters’ allegations are in three counts. Count I alleges that the system for selecting and retaining judges in the civil, criminal, and juvenile divisions of the Lake County Superior Court denies the Voters and those similarly situated to them the opportunity to vote for and to elect judges of their choice in violation of § 2 of the Act and the Fourteenth and Fifteenth Amendments. In Count II, the Voters allege that the system for selecting the three attorney members of the Commission — an at-large, countywide election in which only licensed attorneys are allowed to vote — is a standard, practice, or procedure which results in denying black citizens the ability to vote for and elect the four attorney members of the Commission. According to the Voters, that denial violates § 2 of the Act, and contributes to the violation alleged in Count I, in addition to denying them equal rights, privileges and immunities in violation of § 1983 and the Fourteenth Amendment. In Count III, they allege that the system for electing judges of the county division of the Lake County Superior Court — an at-large, county-wide popular election — constitutes a standard, practice, or procedure that dilutes the votes of black voters and impairs the ability of black voters to participate in the political process and elect judges of their choice. Accordingly, the Voters claim that the system of electing judges for the county division violates § 2 of the Act, as well as the Fourteenth Amendment. On December 3,1993, the Intervenors filed a motion to dismiss Count II of the fifth amended complaint, to which the Voters filed their opposition on December 20, 1993, and also moved for summary judgment on that count. While those motions were pending, the Intervenors filed, on January 5, 1994, a motion for summary judgment on Counts I and III. The Voters responded with a cross-motion for summary judgment and a brief in opposition to the Intervenors’ motion for summary judgment on March 1, and March 7,1994. By August 31, 1994, briefing appeared to be completed on the pending summary judgment motions, as well as on the motion to dismiss. Subsequently, however, the parties continued to supplement their prior materials with additional submissions of evidentiary materials and supplemental authority. That activity ceased on or about April 25, 1995. On May 22, 1995, the Voters moved for a stay of all proceedings while they assessed the effect on their suit of new legislation passed by the Indiana General Assembly in April, 1995. See House Enrolled Act (“HEA”) 1118, passed as P.L. 18-1995. The relevant portions of the Indiana Code that were amended by HEA 1118, §§ 33-5-29.5-29, 29.5-30 to 32, and 29.5-36, became effective July 1, 1995. The amendments expanded the number of members on the Lake County Judicial Nominating Commission from seven to nine, and made other changes directed at increasing the likelihood of selection of minority judges. The four attorney members are still to be elected from among the Lake County members of the bar, but their selection is now subject to certain limitations. At least one attorney member “must be a minority individual,” as defined in the Indiana Code, two members must be women and two members must be men. I.C. § 33-5-29.5-29(b). The new law also changed how the non-attorney members of the Commission would be selected. Formerly, three non-attorney members were appointed by the governor of the State, a popularly-elected official who is somewhat removed from Lake County. Under the new law, the four non-attorney members are to be appointed by the Lake County Board of Commissioners. These appointments are subject to the same conditions as the attorney members with respect to appointment of minority individuals and women. The Board of Commissioners’ appointment power is further limited by the requirement that each of the three county commissioners appoints one member who is a resident of that commissioner’s district. The fourth non-attorney member is to be appointed by majority vote of the Lake County Board of Commissioners. In addition, the law provides that no more than two of the non-attorney members may be from the same political party. I.C. § 33-5-29.5-29(c). Finally, when compiling its list of three nominees for the governor, the Commission must comply with an additional requirement under the new law. “In determining which eligible candidates shall be recommended to the governor, the commission shall consider that racial and gender diversity enhances the quality of the judiciary.” I.C. § 33-5-29.5-36(e). This provision is located in the statutory section entitled “Nominees; requirements of commission.” In light of the changes effected by the new law, the Court granted the requested stay through September 25, 1995, at which time the Voters filed a motion asking the Court to determine that they were prevailing parties for purposes of an award of attorney fees. After more than two months of briefing the prevailing party issue, the Voters informed the Court, via a status conference and an omnibus motion, of their desire to have the Court proceed to resolve the merits of the original dispute. Consequently, the earlier motion to dismiss and motions for summary judgment are now being considered. Further facts will be recited when pertinent to the discussion. II. STANDARDS A. MOTION TO DISMISS In assessing the propriety of a motion to dismiss for failure to state a claim upon which relief can be granted pursuant to Rule 12(b)(6), the Court accepts as true all well-pleaded factual allegations in the complaint and the inferences reasonably drawn from them. Baxter by Baxter v. Vigo County Sch. Corp., 26 F.3d 728, 730 (7th Cir.1994). Dismissal is appropriate only if it appears beyond doubt that the plaintiffs can prove no set of facts consistent with the allegations in the complaint that would entitle them to relief. Hi-Lite Prods. Co. v. American Home Prods. Corp., 11 F.3d 1402, 1405 (7th Cir.1993). This standard essentially means that if any set of facts, even hypothesized facts, could be proven consistent with the complaint, then the complaint must not be dismissed. Sanjuan v. American Bd. of Psychiatry and Neurology, Inc., 40 F.3d 247, 251 (7th Cir.1995). After the Federal Rules of Civil Procedure were passed in 1938, parties no longer had to plead facts that, if true, would establish each element of a cause of action. Id. Instead, plaintiffs “receive the benefit of imagination, so long as the hypotheses are consistent with the complaint.” Id. (citing Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957)). However, the Court need not ignore facts set out in the complaint that undermine the plaintiffs’ claims, American Nurses’ Ass’n v. State of Illinois, 783 F.2d 716, 724 (7th Cir.1986), nor is the Court required to accept the plaintiffs’ legal conclusions. Gray v. Dane County, 854 F.2d 179, 182 (7th Cir.1988). B. SUMMARY JUDGMENT Summary judgment is granted “if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(e). An issue is genuine only if the evidence is such that a reasonable jury could return a verdict for the opposing party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). A disputed fact is material only if it might affect the outcome of the suit in light of the substantive law. Id. The moving party has the initial burden to show the absence of genuine issues of material fact. See Schroeder v. Barth, 969 F.2d 421, 423 (7th Cir.1992). This burden does not entail producing evidence to negate claims on which the opposing party has the burden of proof. See Green v. Whiteco Indus., Inc., 17 F.3d 199, 201 & n. 3 (7th Cir.1994). The party opposing a summary judgment motion bears an affirmative burden of presenting evidence that a disputed issue of material fact exists. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 1355-56, 89 L.Ed.2d 538 (1986); Scherer v. Rockwell Int’l Corp., 975 F.2d 356, 360 (7th Cir.1992). The opposing party must “go beyond the pleadings” and set forth specific facts to show that a genuine issue exists. See Hong v. Children's Mem. Hosp., 993 F.2d 1257, 1261 (7th Cir.1993), cert. denied, — U.S. -, 114 S.Ct. 1372, 128 L.Ed.2d 48 (1994). This burden cannot be met with eonelusory statements or speculation, see Weihaupt v. American Med. Ass’n, 874 F.2d 419, 428 (7th Cir.1989), but only with appropriate citations to relevant admissible evidence. See Local Rule 56.1; Waldridge v. American Hoechst Corp., 24 F.3d 918, 923-24 (7th Cir.1994). Evidence sufficient to support every essential element of the claims on which the opposing party bears the burden of proof must be cited. See Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). In considering a summary judgment motion, a court must draw all reasonable inferences “in the light most favorable” to the opposing party. Spraying Sys. Co. v. Delavan, Inc., 975 F.2d 387, 392 (7th Cir.1992). If a reasonable factfinder could find for the opposing party, then summary judgment is inappropriate. Shields Enters., Inc. v. First Chicago Corp., 975 F.2d 1290, 1294 (7th Cir.1992). When the standard embraced in Rule 56(e) is met, summary judgment is mandatory. Celotex Corp., 477 U.S. at 322-23, 106 S.Ct. at 2552-53; Shields Enters., 975 F.2d at 1294. III. DISCUSSION A MOTIONS RELATING TO COUNT II Defendants have moved for dismissal of this count for failure to state a claim under either § 2 of the Act or the Equal Protection clause of the Fourteenth Amendment. Plaintiffs have responded to defendants’ motion and moved for summary judgment on this count, employing the same arguments for both. Because the motion to dismiss disposes of this count, the summary judgment motion need not be addressed separately. 1. Section 2 Violation At issue under this count is whether the system for electing the attorney members of the Commission is a standard, practice, or procedure imposed or applied in a manner which results in denial or abridgement of plaintiffs’ opportunity to participate the same as “other members of the electorate ... in the political process and to elect representatives of their choice.” See 42 U.S.C. § 1973(b). The Voters argue that by only letting attorneys vote for attorney members, the state puts a “very difficult ‘literacy’ test and a very expensive ‘poll’ tax” on them. Plfs’ Resp. to Intervening Defs Mot. to Dis. Count II of Plfs’ Fifth Am.Compl. at 11 n. 6 (“Plfs’ Response”). They also argue that a law license is property, and by limiting the opportunity to vote to those who can certify they have a law license, the state unconstitutionally limits the franchise to holders of specific property. Plfs’ Response at 10. In addition, the Voters note that those who are allowed to vote for attorney-members of the Commission are “disproportionately white,” citing historical bias among law schools against admitting African-Americans. Plfs’ Response at 11, n. 6. Before delving into those allegations, a preliminary question to be resolved is whether the challenged system is governed by the provisions of § 2 of the Act. The protection afforded by § 2 extends to all popular elections, and the corresponding nomination process, of representatives of the people. A representative has been defined as anyone selected or chosen by popular election from among a field of candidates to fill an office, including judges. Chisom v. Roemer, 501 U.S. 380, 385-86, 111 S.Ct. 2354, 2359, 115 L.Ed.2d 348 (1991). At the time it was passed, the Voting Rights Act was intended to cover “every election in which registered electors are permitted to vote.” Id. at 392, 111 S.Ct. at 2362 (quoting Attorney General Katzenbach’s testimony before the House). In other words, if all registered voters are permitted to vote, and a voting standard, practice or procedure causes members of a protected group to have less opportunity than others to participate in the political process, it violates § 2. The key concept is who is permitted to vote. When determining whether a specific electoral practice falls within the coverage of § 2, the Court must consider the context of the practice. See Chisom, 501 U.S. at 399-400, 111 S.Ct. at 2366. In Chisom, the Supreme Court wrestled with the issue of whether § 2 extended to cover the popular election of judges. While deciding that it does, the Court noted that it is perfectly acceptable for judges to be appointed, rather than elected. Id. at 400-01, 111 S.Ct. at 2367 (Louisiana could have excluded its judiciary from coverage of Voting Rights Act by changing to system of appointing judges). If judges are appointed, § 2 of the Voting Rights Act does not govern the-process. Id. Once a state has decided that its judges will be elected by popular vote, then those elections are “in-eluded within the ambit of § 2 as amended.” Id. at 404, 111 S.Ct. at 2368. Indiana has decided that at least some of the judges in Lake County will be popularly elected, but others will not be, at least initially. The reasons behind this decision are of no concern for pmposes of this analysis, for it is within the state’s prerogative to make such choices. Chisom, 501 U.S. at 401-02, 111 S.Ct. at 2367; Kramer v. Union School Dist. No. 15, 395 U.S. 621, 629, 89 S.Ct. 1886, 1890-91, 23 L.Ed.2d 583 (1969) (states have latitude to determine if certain public offices are filled by appointment or by elections). The non-county division judges are appointed by the governor, a popularly-elected official, which appointment power is aided by a judicial nominating commission. See I.C. § 33-5-29.5-39 (vacancies on the Superior Court of Lake County “shall be filled by appointment of the governor from a list of three (3) nominees presented to him by the judicial nominating commission.”). The Commission has the limited purpose of selecting the three highest qualified candidates based on detailed criteria outlined in the statute, and submitting to the governor both a list of those nominees and a written evaluation of each candidate’s qualifications. I.C. § 33-5-29.5-37. The governor then selects one person fi*om the list for appointment. In essence, by choosing a system whereby these judges are appointed, Indiana has excluded them from coverage under § 2 of the Act. That exclusion extends to the entire process involved in making the appointment. Given their duty to assist the governor in selecting the best possible candidate for appointment to the bench, members of the Commission are not “representatives” as defined by the Supreme Court. They do not represent a popular electorate in the sense of being accountable to them. Instead, the person accountable to the electorate for the appointment of judges is the governor. See Kramer, 395 U.S. at 627, n. 7, 89 S.Ct. at 1889, n. 7 (giving example that if school board were appointed by mayor, voters could affect its composition through their votes for mayor). Because selection of the attorney-members of the Commission is not a popular election of representatives as described in Chisom, § 2 simply does not apply. Chisom, 501 U.S. at 385-86, 111 S.Ct. at 2359. Rather than being representatives who are chosen by popular election, members of the Commission are more akin to political appointees, in that the governor formerly, and now the county executive, will appoint four of them, Lake County attorneys of all races select four of them, and the Chief Justice of the Indiana Supreme Court, or his designee, rounds out the full complement of nine members. Seen in that light, the State’s classification of attorneys as the only qualified electors of attorney members of the Commission does not bring their election within the scope of § 2. Instead, part of the executive’s power to appoint officers and advisers has been delegated to members of the Lake County bar, which does not convert the process to a popular election. See Ind. Const. Art. 5, § 1 (the executive power of the State shall be vested in a Governor); 1944 Op. Atty Gen. No. 81 (the power of appointment is an executive function); see also City of Evansville v. State, 118 Ind. 426, 21 N.E. 267 (1889) (same). That delegation does not change the character of the process as one of executive appointments. In light of the above, the entire judicial appointment process used for selecting non-county division judges in Lake County does not come within the protections afforded by § 2 of the Act. Consequently, to the extent Count II attempts to state a claim for relief under § 2, it has failed and must be dismissed. 2. Equal Protection In the voting rights context, the Equal Protection clause requires at least that in popular elections of governing bodies, each vote should enjoy equal weight, and the state may not devise a system that destroys the one-man, one-vote principle. Reynolds v. Sims, 377 U.S. 533, 562, 84 S.Ct. 1362, 1381-82, 12 L.Ed.2d 506 (1964). The Voters maintain that the “election” of the attorney members of the Commission, by votes cast only by members of the Indiana bar who reside in Lake County, constitutes a violation of the Equal Protection clause of the Fourteenth Amendment. That clause applies to classifications made by the political branches of government. Wroblewski v. City of Washburn, 965 F.2d 452, 458 (7th Cir.1992). “In order to withstand scrutiny under the Equal Protection clause a law must bear only a rational relation to a legitimate state interest,” unless fundamental rights or suspect classifications are implicated. Id. Not every classification, however, triggers Equal Protection analysis. “The equal protection clause’s proscription of differential treatment applies only where individuals are similarly situated.” Id. at 459 (citing Eisenstadt v. Baird, 405 U.S. 438, 446-47, 92 S.Ct. 1029, 1034-35, 31 L.Ed.2d 349 (1972)). If an Equal Protection analysis is implicated by the challenged classification, and if the rational basis test is the proper Equal Protection standard, then to survive a motion to dismiss, a plaintiff must allege sufficient facts to overcome the presumption of constitutionality that cloaks the government classification. Id. at 460; see also FCC v. Beach Communications, Inc., 508 U.S. 307, 313, 113 S.Ct. 2096, 2101, 124 L.Ed.2d 211 (1995) (“[E]qual protection is not a license for courts to judge the wisdom, fairness, or logic of legislative choices.”). The Commission and Judges maintain that the classification between lawyers of all races and the general public does not involve a suspect class, nor does it infringe a fundamental Constitutional right, such that the strict scrutiny standard would apply to the Equal Protection analysis. Instead, they argue that the Court should apply the rational basis standard. In response to the Voters’ claim that voting is a fundamental right, thus triggering strict scrutiny, the Intervenors argue that the “election” at issue does not fall within the fundamental right category. As a general rule, whenever a state “decides to select persons by popular election to perform governmental functions, the Equal Protection Clause of the Fourteenth Amendment requires that each qualified voter must be given an equal opportunity to participate in that election....” Hadley v. Junior College Dist., 397 U.S. 50, 56, 90 S.Ct. 791, 795, 25 L.Ed.2d 45 (1969). According to the Interve-nors, two key differences operate to take the Commission out of the general rule. First, the state may choose how offices are filled, and the State of Indiana decided not to select members of the Commission by popular election. A popular election is one in which all registered voters meeting the age and residency requirements may vote. As noted in the § 2 discussion, only attorneys may vote for the attorney members of the Commission, and the remaining members are appointed by the executive. Attorneys do not constitute a suspect class, and the process of selecting Commission members does not qualify as a popular election. Both selection methods appear to fall more in the category of executive appointments, which does not implicate the Equal Protection clause. Second, even if the election could be construed as popular, the Commission does not perform traditional governmental functions. When a special unit of government is assigned certain narrow functions, affecting a definable group of constituents more than other constituents, limiting the franchise to members of that definable group is proper. See Salyer Land Co. v. Tulare Lake Basin Water Storage Dist., 410 U.S. 719, 728, 93 S.Ct. 1224, 1229-30, 35 L.Ed.2d 659 (1973) (creating an exception to the one-man, one-vote rule enunciated in Reynolds, 377 U.S. at 562, 84 S.Ct. at 1381-82); Avery v. Midland County, 390 U.S. 474, 485-86, 88 S.Ct. 1114, 1120-21, 20 L.Ed.2d 45 (1969) (variations may constitutionally exist among local units of government so long as units with “general governmental powers over an entire geographic area” are elected according to the one-man, one-vote rule). Only when the elective body’s purpose is narrow and limited, and a special relationship exists between its functions and one class of citizens can there be an exception to the “one-man, one-vote” rule. Ball v. James, 451 U.S. 355, 101 S.Ct. 1811, 68 L.Ed.2d 150 (1981). This Court agrees with the Intervenors that Commission members are not selected by popular election and about the nature of the Commission. The Commission is responsible for selecting from among eligible applicants for a judicial appointment the three most highly qualified candidates. This is a narrow and limited purpose and function. In fact, the attorney members of the Commission are elected to a special group that serves no traditional governmental functions at all. The Commission’s sole purpose and reason for existence is to screen candidates as part of the judicial appointment process. Consequently, the Commission satisfies the “special unit with narrow functions” prong of the exception to the one-man, one-vote rule. See Ball, 451 U.S. at 361-62, 101 S.Ct. at 1816-17 (holding that water district providing more diverse services affecting many more people than the district in Salyer still does not exercise the type of governmental functions that trigger Reynolds strict scrutiny). With respect to the second prong, a special relationship can easily be discerned between members of the Lake County bar and the Commission’s function of selecting the most highly qualified candidates for judicial appointments. Eligible candidates must be members of the bar, and to be considered one of the three most highly qualified candidates, a person must have distinguished her or himself in connection with legal activities. See Ind.Code § 38-5-29.5-36(b). The attorney-members of the Commission are selected to represent the interests and reflect the expertise of the local bar when evaluating candidates for a judicial appointment. Their divergent interests uniquely qualify attorneys to advise the governor, for their interests are different in nature and in scope from the interests of the general public in a fair and impartial judiciary. Attorneys, as officers of the court and as potential candidates for judicial office, are disproportionately affected by the screening process performed by the Commission. See Ball, 451 U.S. at 371, 101 S.Ct. at 1821 (noting that selected group of voters for a special public entity need not be the only parties affected by its operation, rather court looks at whether the effect on the special group is disproportionately greater than the effect on those seeking to vote). Additionally, because the Commission is required to screen the candidates with respect to their contributions to scholarly journals, their legislative drafting or drafting of legal briefs, their public service, their efforts to improve the administration of justice, their probable judicial temperament, and other conduct relating to professional and legal experience, attorneys are in the best position to assist with that process. Because of their divergent interests and unique expertise, attorneys in Lake County can be considered to have a special relationship to the narrow function of the Commission, satisfying prong two of the exception. In an effort to portray the elections in question as popular elections, thus triggering strict scrutiny, the Voters maintain that non-attorneys are just as interested in the composition of the judiciary as attorneys. They argue that “to only let lawyers vote for the judicial branch” is not reasonable or rational. Plfs Response at 9. The Voters overstate the effect of the Lake County attorneys’ votes. To say that they, alone, are “voting” for the judicial branch, is erroneous. First, there is an equal number of attorneys and non-attorneys on the Commission. Second, neither type of Commission member “votes” for the judiciary. Instead, they perform a specific, carefully circumscribed, task on behalf of the governor. Third, the governor appoints a judge from the list of three nominees, and the voting as to whether to retain that choice is done by all Lake County registered voters. Plaintiffs’ argument on this point is without merit. Having found that the election of attorney members to the Commission does not involve a suspect class or infringe a fundamental right, the Court now turns to applying the proper test of the constitutionality of the classification, which is the rational basis test. The State’s decision to allow Lake County attorneys the opportunity to select four of their number to serve on the Commission bears a rational relationship to a legitimate state interest. The State of Indiana has a strong interest in obtaining the best qualified members of the local bar to serve on the Commission and to assist with its assessment and screening function. To farther that interest, the state has decided to let members of the Lake County bar select those attorney members. Because of their familiarity with the integrity, skill and experience of their fellow members of the bar, the Lake County lawyers appear to be uniquely well-suited to select the best qualified attorney Commission members. The state is free to choose whatever method it deems appropriate for selecting members of the Commission, and the method it has chosen is rationally related to achieving the State’s goals. Consequently, it does not violate the Constitution. Moreover, the Voters’ Equal Protection claim is further weakened by the fact that their efforts are directed at obtaining the right to elect less than one-half the members of the Commission. An equal number of non-attorney members of the Commission are selected by a popularly-elected official to represent the interests of the general populace in the type of candidates recommended to the governor. Further, the recent changes in the law have increased the responsiveness to Lake County voters of the officials with power to appoint non-attorney members to the Commission. Instead of those Judicial Nominating Commission members being selected by the governor, as under the old law, they are now selected by members of the Lake County Board of Commissioners. To better reflect the ethnic composition of the county, three of the four non-attorney appointees to the Commission must be residents of each of the three county commissioner districts; one of the four must be a minority individual, and two must be women. Consequently, the non-attorney voters retain the ability to affect the makeup of the Commission, and ultimately the judiciary, by their vote for governor, and their vote for county commissioners, under the new law. This Court finds that the State’s classification represents a reasonable effort to provide representation of both the general populace and the members of the bar on a Commission whose limited function is to advise the governor on the selection of an appropriate candidate for judicial office. Attorneys of all races have an equal opportunity to vote for fellow attorney members, and non-attorney residents of all races are equally prevented from electing attorney-members of the Commission. Thus, there is no Equal Protection violation. If there had been a violation, the Voters sought the Court’s assistance with devising and implementing procedures that would provide minorities with an equal opportunity to elect judges of their choice, if the legislature did not act to remedy the situation. Once it declared the system in violation of the Constitution, the Court would have ordered the legislature to propose a remedy. Because the legislature has acted in a way that may remedy the situation, this Court does not need to act. The Voters have argued that the substance of what they sought with respect to this count has been achieved through the legislative amendment of the statute. They complained that no blacks had ever been elected to the Commission, in part because only ten percent of the attorneys residing in Lake County are black. With the limitations placed by the new law on the Lake County attorneys’ right to elect four of their number to the Commission, the likelihood that no blacks will serve on the Commission has been greatly reduced. Count II alleged that the practice of allowing only attorneys to elect attorney members to the Commission contributed to the Constitutional violations alleged in Count I. Assuming, without finding, that this allegation is true, given the restrictions now imposed on the attorneys’ freedom to elect members to the Commission, that claim may be rendered moot by the new legislation. See Miller v. Benson, 68 F.3d 163, 164 (7th Cir.1995) (“Victory in the legislative forum makes judicial proceedings moot.”) (citing United Building and Const. Trades Counc. v. Mayor & Council of Camden 465 U.S. 208, 213-14, 104 S.Ct. 1020, 1024-25, 79 L.Ed.2d 249 (1984)); Princeton Univ. v. Schmid, 455 U.S. 100, 102 S.Ct. 867, 70 L.Ed.2d 855 (1982)). Because the new law took effect a little over six months ago, it is too soon to tell what its effect will be. At the least, the law has eliminated the need for the Court to order a remedy to any alleged Fourteenth Amendment violation by the old system. B. MOTIONS FOR SUMMARY JUDGMENT ON COUNT I 1. Material Facts The facts necessary to resolve the claims made under Counts I and III are largely undisputed. Instead the parties dispute the inferences and conclusions to be drawn from these facts. Both sides rely on the same electoral data, but apply different statistical analyses to and interpretations of the data. For purposes of the motions for summary judgment, the Court finds the following facts to be undisputed. The Lake County Superior Court was created in 1973, and it has county-wide jurisdiction vested in four divisions. Ind.Code § 33-5-29.5-1 through 29.5-27. Originally there were three divisions, the civil, criminal and juvenile divisions, but in 1988 the Indiana General Assembly converted the Lake County Court into the county division of the Lake Superior Court. 1988 Ind.Acts P.L. 176 § 10. Initially, the Superior Court consisted of five civil division judges, four criminal division judges, and one juvenile judge. Ind. Code § 33-5-29.5-21. The first judges on the bench included nine white judges and one black judge (Judge Kimbrough). Of those ten judges, three who sat in the criminal division were among the first to be selected by the new appointment system. Judge Kimbrough was one of those three. The appointment and retention system of selecting the judges in the civil, criminal, and juvenile divisions also began in 1973. See Ind.Code. 33-5-29.5-28 through 29.5-42. As part of that process, the Commission submits to the governor “only the names of the three (3) most highly qualified candidates from among all those eligible individuals considered.” Ind.Code § 33-5-29.5-36(a). “To be eligible for nomination as a judge of the superior court of Lake County, a person must be domiciled in the county of Lake, a citizen of the United States and admitted to the practice of law in the courts of this state.” Id. The Commission is guided in its selection of the three most highly qualified applicants by the factors outlined in Ind. Code § 33-5-29.5-36(b). The final decision about whom to appoint as a judge is made by the governor who selects one of the three candidates recommended by the Commission. After appointment, a judge serves either a prescribed initial term, or completes the unexpired term of the judge he or she is replacing. To serve beyond this initial term a judge must submit to a county-wide, at-large retention vote. Ind.Code § 33-5-29.5-42. If rejected by the electorate the judge is replaced by operation of the entire appointment process. Id. If not, the judge will serve a subsequent six-year term, standing for retention again at the end of that term. Ind.Code § 33-5-29.5-41. From 1973 to 1993, which is the period for which the parties have provided data, twelve judges have been appointed to the civil, criminal, or juvenile divisions of the Lake Superi- or Court. Of those twelve appointees, only one was African-American, and eleven were white. Ans. to Plfs’ Interrog. to the Judicial Nominating Comm, for the Sup.Ct. of Lake Cty., pp. 4-6, 7-9. Judge Kimbrough, who was African-American, was a minority-preferred candidate, and was retained each time he stood for election. He served from 1974 until he died in 1987. Id. The total number of nominees recommended to the governor during the relevant period consisted of six African-Americans and thirty-one whites, which reflects a 16% to 84% ratio of blacks to whites. Id. Although records are not available for every appointment process, the ones that are available reveal that a total of twenty-three black attorneys applied for a judicial appointment, while one hundred white attorneys did so. Of that total of 123 applicants, 18% were black and 82% white. Id. In 1988, the county division was created. The three judges in that division were to be selected by county-wide, at-large popular elections for six-year terms. Ind.Code § 33-5-29.5-42.5. Prior to the conversion from the County Court to the county division, there were three white judges on the County Court bench. One of those judges, Judge Krajewski, was appointed by the governor from a list of two nominees to serve as a judge in the county division. The other nominee for the position, Bernard Carter, is black. Ans. to Plfs’ Interrog., p. 9. In November, 1990, Democrat Carter challenged Republican Judge Krajewski for a seat on the county division bench, and defeated him with a total of 57,993 to 33,564 votes. Certified Records of 1990 Election Returns in Lake County, Ind. Judge Carter was a preferred candidate of black voters in Lake County. Intervening Defs First Req. for Adm., Request 2. This action was filed on August 9, 1991, after which Judge Stanko, who is white, resigned from the county division bench. He was replaced by Sheila Moss, who is black. Judge Moss is a preferred candidate of black voters in Lake County. Id. In 1992, Judge Mears, who is white, lost a retention election for the juvenile division. Certified Records of 1992 Election Returns in Lake County, Ind. By 1993, two of the thirteen Superior Court judges were black, both of whom were in the county division. At the end of 1993, Judge Carter resigned to become the Lake County Prosecutor. Between 1976 and 1992, four judicial elections involved African-American candidates: Judge Kimbrough in 1976 and again in 1982; Judge Carter’s 1990 primary election; and Judge Carter’s 1990 general election. In 1976, Judge Kimbrough was retained with 40,031 yes votes to 21,021 no votes. Certified Records of 1976 General Election Returns. He won with 56% of the vote in every one of the twenty-two cities, towns, and townships then in Lake County. Id. According to 1970 census figures, of those twenty-two areas, eighteen contained less than 5% African-Americans of voting age. Desig. and Subm. of Docs, in Sup. of Intervening Defs’ Mot. for Sum.J., Exh. 12. Judge Kim-brough received over 50% of the vote in each of these eighteen, predominantly white areas. In 1982, Judge Kimbrough’s retention election success featured 34,672 yes votes to 17,811 no’s. Those voting to retain him constituted 60% or more of those who voted in twenty-one of the twenty-four cities, towns, and townships in Lake County. Id., Exh. 10. Judge Kimbrough won a majority of white votes in the nineteen areas in which blacks comprise less than 1% of the voting age population as of the 1980 census. In addition, Judge Kimbrough received a similar proportion of yes votes as did his white colleagues running for retention in 1982. Id. In 1990, Judge Carter ran unopposed in the May Democratic primary, and received a similar number of votes as did the other two Democratic candidates for judicial office (Carter — 34,383 votes; Stanko — 32,364 votes; Schiralli — 36,206 votes). Id., Exh. 5. In November, 1990, Judge Carter ran against an incumbent, who was a white Republican, for a seat on the county division bench. The total vote in the election was 91,557, of which Judge Carter received 57,993, or 63% of the vote, to 33,564, or 37% for former Judge Krajewski. Id., Exh. 4; Certified Returns of 1990 General Election in Lake County, Ind. Judge Carter’s vote totals were within 6,000 votes of the amounts received by Judges Stanko and Schiralli, who ran unopposed. Id. According to the 1990 census, 22.5% of the total voting age population in Lake County is black. If 91,557 votes were cast in the Carter-Krajewski contest, and 22.5% (20,600) of those are assumed to be by black voters and for Carter, that leaves 70,957 white votes in the election (91,557-20,600), of which 37,-393 votes were cast for Carter (57,993-20,-600). That figure represents 53%, or a majority, of the total white vote that was cast for Judge Carter (37,393/70,957). In retention elections involving only white incumbents, voters voted to retain all judges except Judge Giorgi in 1978 and Judge Mears in 1992. See Desig. and Subm. of Docs, in Sup. of Int.Defs’ Mot. for Sum.J., Ex’s 2-4, 7-11. The proportion of yes to no votes was virtually identical for areas with predominantly white residents and those with predominantly black residents. Id. Likewise, in recent statewide popular elections in which a white candidate ran against an African-American candidate, the African-American candidates won. See Certified 1990 General Election Returns, Feb. 22,1994 Submission, Exh 1; Henderson Aff., Tables 7, 9. In November, 1990, an African-American candidate, Dwayne Brown, won election to the post of Clerk of the Indiana Supreme Court. Id. Brown received a majority of white votes in Lake County. Henderson Aff., Table 7. In November, 1992, Pam Carter, an African-American candidate, won election to the office of Indiana Attorney General. She received a majority of white votes in Lake County. Id., Table 9. In three Democratic primary elections in which an African-American candidate ran against a white candidate, the results varied according to the race of the candidate. In May, 1990, the Democratic primary for Congressional District 1 included four contenders: Hall (African-American), Reising (white), Smith (white) and Visclosky (white). Hall received 67.67% of the black vote and 6.43% of the white vote. Visclosky received 19.35% of the black vote and 70.70% of the white vote. Henderson Aff., Tables 7, 9. The winner was Visclosky. See Feb. 22,1994 Subm. by Intervenors, Ex. 1, Certified 1990 General Election Results. The African-American candidate in the May, 1992, primary for State Representative from District 3 was Brown. He received 68.55% of the black vote and 20.73% of the white vote. Fisher, who is white, received 21.61% of the black vote, and 2% of the white vote. Mays, who is white, received 9.84% of the black vote, and 77.26% of the white vote. Henderson Aff., Table 12. The winner of this election cannot be discerned from the data provided. Finally, in the May, 1992, primary race for county coroner, Williams, an African-American candidate, received 72.18% of the black vote, and 10.76% of the white vote. Philpot, a white candidate, received 8.19% of the black vote and 55.85% of the white vote. Id., Table 18. Philpot won. Henderson Dep., p. 163. In all other nonjudicial elections for which data was analyzed, the African-American candidate received the majority of both the black and the white votes. Id. 2. Section 2 Claims In Count I, the Voters allege that the retention election system used in Lake County denies blacks the right to elect judges of their choice and denies black attorneys the right to challenge incumbent white judges. Complt. ¶ 11. Because of the “long history of official discrimination” in Indiana and Lake County, and the fact that voting in Lake County is “racially polarized,” the retention system closes the political process for electing judges to blacks. Complt. ¶¶ 13,14. Plaintiffs also allege that because the retention elections are county-wide, at-large elections, they “dilute” the votes of the politically cohesive black voters. Complt. ¶ 17. As noted in the Court’s earlier ruling, to avoid summary judgment, plaintiffs must be able to “flesh out” these allegations. The Voters’ claims under this count are brought pursuant to § 2 of the Act, which provides: (a) No voting qualification or prerequisite to voting or standard, practice, or procedure shall be imposed or applied by any State or political subdivision in a manner which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or col- or.... (b) A violation of subsection (a) of this section is established if, based on the totality of the circumstances, it is shown that the political processes leading to the nomination or election in the State or political subdivision are not equally open to participation by members of a class of citizens protected by subsection (a) of this section in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice. 42 U.S.C. § 1973. In 1982, Congress amended the Act to expand the scope of § 2 to include a prohibition of any standard, practice, or procedure that results in a denial or abridgement of the right to vote. The prior law had prohibited any act that denied or abridged the right to vote, and had been interpreted by the Supreme Court as requiring proof of intentional discrimination. Chisom, 501 U.S. at 393, 111 S.Ct. at 2363 (citing Mobile v. Bolden, 446 U.S. 55, 60-61, 100 S.Ct. 1490, 1495-96, 64 L.Ed.2d 47 (1980)). To broaden the scope of § 2 Congress drafted language that focused on the effect or result of a given practice. The “results” test requires an inquiry into the “totality of the circumstances” surrounding a challenged electoral practice. 42 U.S.C. § 1973(b). The inability to elect a representative of their choice does not suffice to establish a § 2 violation unless, in light of all the circumstances, it appears that the members of the protected class have less opportunity than others to participate in the electoral process. Chisom, 501 U.S. at 397-98, 111 S.Ct. at 2365. The essence of a claim under § 2 of the Act is that a certain electoral law, or practice or procedure, “interacts with social and historical conditions to cause an inequality in the opportunities enjoyed by black and white voters to elect their preferred representatives.” Thornburg v. Gingles, 478 U.S. 30, 47, 106 S.Ct. 2752, 2764-65, 92 L.Ed.2d 25 (1986). By an earlier ruling this Court denied a motion to dismiss brought on the basis that § 2 does not apply to the civil, criminal, and juvenile judges of Lake County because they are appointed, rather than elected. The Court held that in hybrid systems, such as the one at issue here, even though judges are initially appointed, because they must submit to retention elections they can be considered representatives and § 2 would apply. The Court limited its ruling, however, to make clear that consideration of a § 2 violation only extended to the retention elections of these judges, and to the popular election of the judges in the county division. See Bradley v. Indiana State Elec. Bd., 797 F.Supp. 694, 698 (S.D.Ind.1992) (stating that the Act applies to the county’s retention elections, “but this does not mean that it also governs the nomination and appointment procedures which first put judges onto the Superior Court”). Successful prosecution of a § 2 vote dilution claim requires that plaintiffs meet the three necessary preconditions established by the Supreme Court in Gingles. See Johnson v. DeGrandy, — U.S. -, -, 114 S.Ct. 2647, 2657, 129 L.Ed.2d 775 (1994); Gingles, 478 U.S. at 50-51, 106 S.Ct. at 2766-67; McNeil v. Springfield Park Dist., 851 F.2d 937, 942 (7th Cir.1988), cert. denied, 490 U.S. 1031, 109 S.Ct. 1769, 104 L.Ed.2d 204 (1989), (holding that Gingles necessary preconditions must be met before a § 2 plaintiff can cross the summary judgment threshold). First, a minority group must show that it is sufficiently large and geographically compact to constitute a majority in a single-member district; second, the group must show that it is politically cohesive; and third, the group must show that white bloc voting (racially polarized voting) usually thwarts the successful election of a minority-preferred candidate. McNeil, 851 F.2d at 942. Although meeting the preconditions is necessary to prove a § 2 claim, it is not sufficient to establish a violation. Johnson, — U.S. at -, 114 S.Ct. at 2657. Once those preconditions are met, the group must then seek the court’s determination that, based on the totality of the circumstances, the challenged devices, practices, standards, or procedures, result in unequal access to the electoral process. Baird v. Consolidated City of Indianapolis, 976 F.2d 357, 362 (7th Cir.1992), cert. denied, 508 U.S. 907, 113 S.Ct. 2334, 124 L.Ed.2d 246 (1993), (citing Gingles, 478 U.S. at 46, 106 S.Ct. at 2764). A careful reading of the Fifth Amended Complaint discloses that part of the Voters’ concerns regarding the retention elections originate, at least indirectly, from the process by which judges are appointed in the first place. In Count I, they allege that the “manner” of electing judges for the civil, criminal, and juvenile divisions is a standard, practice, or procedure that results in denial or abridgement of the Voters’ rights that are protected by § 2 and the Fourteenth and Fifteenth Amendments. Complt. ¶ 18. They also specifically allege that the system of conducting retention elections for these judges causes black voters to be unable to elect judges of their choice. Complt. ¶ 19. Coupled with the challenge in Count II of the election procedure for attorney members of the Commission, which the Voters claim contributed to the violations in Count I, these allegations in Count I reveal an intent to achieve greater minority influence on, the initial appointment process. That conclusion is supported by the general entreaty in the Prayer that if the Indiana General Assembly does not take action to remedy the situation, the Voters want this Court to devise and implement procedures “for electing Lake County Superior Court judges which provide black citizens in Lake County with an equal opportunity to elect judges of their own choice.” Complt.Prayer. If the nomination and appointment process are being separately attacked in Count I, the Court reiterates its former finding that § 2 does not apply to those aspects of the retention election process. To the extent that the nomination and appointment process are integrated with the alleged violation of § 2 during the retention elections, the Court will address certain circumstances surrounding that process. The statute governing the composition of the Commission has changed since the time when the Fifth Amended Complaint was first filed. In addressing the merits of the Voters’ claims, the Court is obliged to refer to the statute as it currently is, not as it was. See Diffenderfer v. Central Baptist Church, 404 U.S. 412, 414, 92 S.Ct. 574, 575-76, 30 L.Ed.2d 567 (1972); Hall v. Beals, 396 U.S. 45, 48, 90 S.Ct. 200, 201-02, 24 L.Ed.2d 214 (1969). That change appears to address some of the Voters’ concerns about the judicial nomination process in Lake County, which process may indirectly affect the allegations relating to the retention elections. Assuming, without finding, that the Voters can meet the Gingles factors, to determine whether a practice or procedure violates § 2 the Court must focus on the totality of the circumstances, and assess whether members of the protected group have less opportunity than others to participate in the electoral process. At this point in this litigation, the Court must consider the changed eircum-stances in which the Commission and the appointment process find themselves. Although the new law does not totally render this count moot, it does change things. Just how things have changed — it is too early to tell. Section 2 requires courts to analyze the result or effect of the challenged electoral standard, practice, or procedure, to see if it is imposed in a manner that causes a denial or abridgement of the right to vote on account of race or color. See Baird, 976 F.2d at 359 (noting that Congress defined violations of § 2 in terms of outcome, not intent, although the goal is equality of opportunity, not equality of outcome). Successfully proving an intent to deny or abridge the voting rights of a protected group would also suffice. Since the new law just became effective a little more than six months ago, it is too early for this Court to make a finding regarding its result or effect. Likewise, it is not clear whether any retention elections have been held under the new law, nor is the Court aware of any appointments that have been made thereunder. The absence of any feedback as to the impact on Lake County judicial retention elections of the intervening changes in the law prevents the Court from rendering an opinion with respect to whether the judicial retention election system in Lake County violates § 2 of the Act. “The adjudicatory process is most securely founded when it is exercised under the impact of a lively conflict between antagonistic demands, actively pressed, which make resolution of the controverted issue a practical necessity.” Poe v. Ullman, 367 U.S. 497, 81 S.Ct. 1752, 6 L.Ed.2d 989 (1961); Conway Sch. Dist. v. Wilhoit, 854 F.Supp. 1430, 1441 (E.D.Ark.1994) (finding a Voting Rights case not ripe). The issues here may appear to raise a “ripeness” concern, but the problem is more correctly described as a failure of proof. Since ripeness is determined as of the date of filing the action, a subsequent change in the law cannot defeat the Court’s jurisdiction on ripeness grounds. While it is tempting to view the situation as analogous to a lack of ripeness, it is better characterized as a failure of proof. The failure is caused by the absence of any data about the effects of the new system for selecting members of the Commission, or about a newly-composed Commission’s recommendations for gubernatorial appointments. This lack of proof hinders the Court in a way that is similar to a lack of ripeness of any Constitutional or § 2 claims under the new law. Moreover, the fact that the law has changed, and on its face the change appears to increase the influence minorities have on the judicial select