Full opinion text
MEMORANDUM OPINION ON PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION PER CURIAM: In this case (“Johnson III”), Plaintiffs challenge the constitutionality of certain State House and Senate legislative districts within the State of Georgia and seek preliminary injunctive relief enjoining Georgia’s upcoming elections under the challenged districting plan. On April 30, 1996, this Court issued an Order granting a preliminary injunction and providing a Court-ordered interim redistrieting plan. This Memorandum Opinion follows and explains that Order. A final Order and Judgment of the Court will be issued after a full trial upon the merits of all of the issues ultimately joined in this proceeding. We stress the interim nature of the findings and relief afforded herein. The April 30 Order and this Memorandum Opinion are entered under the most exigent time constraints, but after due and thorough consideration of the issues we address. I. INTRODUCTION In 1993, the Supreme Court recognized that a citizen may challenge redistricting legislation under the Equal Protection Clause by alleging that the challenged 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.” Shaw v. Reno, 509 U.S. 630, 649, 113 S.Ct. 2816, 2828, 125 L.Ed.2d 511 (1993). The way was thus cleared for constitutional claims against congressional voting districts that allegedly had been created for the prohibited purpose of segregating voters according to their race. Such challenges were filed first in North Carolina, Louisiana, Texas, Florida, and Georgia. Indeed, southern states have proved to be fertile ground for Shaw claims, as many of these states are subject to the Voting Rights Act of 1965, 42 U.S.C. §§ 1973 et seq., and, in particular, to section 5 of that Act, which requires preclearance of any redistricting plan. The Department of Justice (the “DOJ”) is the primary entity used to preclear such plans. In the redistricting that followed the 1990 census, the DOJ indicated that those states under its section 5 power should maximize their number of majority black voting districts, which directive potentially — and in Georgia, effectively — required the segregation of some black voters into their own districts. Because the DOJ’s directive was potentially at odds with Shaw’s subsequent holding, redistricting plans enacted pursuant to the DOJ’s directives have become vulnerable to constitutional challenges. II. AN OVERVIEW OF THE CASE WITH AN HISTORICAL BACKGROUND While the facts of this ease could be stated in isolation, a better understanding of the case obtains by first considering it in the context of other, related litigation. Much of the factual history of this case during the years 1991 and 1992 is directly related to, and established by, the evidence in Johnson I. In Johnson I, the three-judge district court determined the 1992 configuration of Georgia’s Eleventh Congressional District to be unconstitutional under Shaw v. Reno. The State Defendants and certain Intervenor-Defendants appealed directly to the Supreme Court, which affirmed in Miller v. Johnson, — U.S.-, 115 S.Ct. 2475, 132 L.Ed.2d 762 (1995). When the ease was remanded to the three-judge court, the Plaintiffs, on the strength of the Supreme Court’s opinion in Miller v. Johnson, challenged the constitutionality of the Second Congressional District of Georgia. The three-judge court, with no opposition by the Intervenor-Defendant DOJ, determined the Second Congressional District to be unconstitutional. After both the Eleventh and Second Congressional Districts of Georgia had been determined to be unconstitutional, the legislative leadership requested that the Johnson I Court defer consideration of any remedy in order to allow the State the opportunity to reapportion itself. The Georgia General Assembly then conducted a 1995 special session, in which it was rightfully concerned with not only the reapportionment of the unconstitutional congressional plan, but also with the constitutionality of its existing state plan of reapportionment (the 1992 plan) because of the Supreme Court’s opinion in Miller v. Johnson, — U.S.-, 115 S.Ct. 2475. The General Assembly succeeded in redistricting itself, but it was unable to agree upon congressional redistricting. Thereafter, the Johnson I Court ordered a remedy in the form of a revised congressional districting plan in Johnson II. The decision in Johnson II was appealed pursuant to 28 U.S.C. § 1253, and probable jurisdiction has been noted, 64 USLW 2625 (May 20, 1996). The State submitted its legislative redistrieting plan (the “1995 plan”) to the Voting Rights Division of the DOJ for preclearance pursuant to section 5 of the Voting Rights Act, 42 U.S.C. § 1973c. During the pendency of the DOJ’s consideration of the 1995 plan, the same Plaintiffs in the present case {Johnson III) moved the Johnson I and II Court to allow an amendment which would enable the latter three-judge district court to address their constitutional challenges to State House and Senate districts. The Johnson I and II Court deferred ruling on the motion to amend that case. On March 5, 1996, Plaintiffs filed the present action {Johnson III) in the Southern District of Georgia, challenging the constitutionality of thirty-three separate State House and Senate legislative districts. The allegations in this case are virtually identical to those which had been stated in the motion to amend the complaint in Johnson I and II. Thus, the motion to amend the complaint in Johnson I and II was subsequently denied as moot. The initiating judge in Johnson III then sought the designation of a three-judge district court by the Chief Judge of the Eleventh Circuit Court of Appeals. At the outset, it is noted that this three-judge district court has jurisdiction in this proceeding pursuant to the provisions of 42 U.S.C. § 1973c and 28 U.S.C. § 2284. This Court was lawfully designated and convened by Order of the Honorable Gerald Bard Tjoflat, Chief Judge, United States Court of Appeals for the Eleventh Circuit, dated March 22, 1996. Moreover, the parties do not now contest the jurisdiction of this Court, the method of its composition, or that venue lies within the Southern District of Georgia. III. THE OPERATIVE FACTS The facts of this case are inextricably related to the facts found by the three-judge court in Johnson I and affirmed by the United States Supreme Court in Miller v. Johnson. The Georgia General Assembly’s consideration of reapportionment for congressional seats, the subject matter of Johnson I and II, and its consideration of reapportionment for state legislative seats, which is the subject matter of this action, were conducted contemporaneously. Johnson I, Tr. I, at 53. Thus, much of the story of Georgia’s redistricting efforts in 1991 and 1992 has already been told in Johnson I. While this case is cast in separate pleadings and styled under a different case number, there is no material difference between what went on legislatively with respect to state and congressional redistricting in 1991 and 1992. Further, each of the parties in Johnson I and II are parties in this case and the parties are represented by the same attorneys. Moreover, both of the Intervenor-Defendants in Johnson I and II, the DOJ and the Abrams Intervenors, have been allowed to intervene as Defendants in this case under the same conditions imposed in Johnson 7. Accordingly, to the extent that it is applicable herein, the entirety of the record of the proceedings in Johnson I has been adopted as part of the record in this proceeding. The attorneys for the parties have designated certain portions of the Johnson I record which they particularly wanted us to consider. We have done so, and we have considered other parts of that record where relevant. In addition, all trial transcripts, admissions, agreements, and stipulations between the parties in the Second Congressional District and remedy phase of Johnson II have been admitted as part of the record in this civil action. A. The 1991-92 Legislative Districting Process If the making of laws is as unsightly as the manufacture of sausage, the Georgia legislature’s redistricting efforts in 1992 would be the headcheese of the business. Indeed, the recipe for the 1992 plan was neither a simple nor constitutionally savory concoction. The population and voter information from the 1990 Decennial Census was delivered to the State of Georgia for its reapportionment purposes shortly before the deadline of April 1, 1991. Johnson III, Tr. at 36-37. The census, which revealed various changes in Georgia’s population distribution and composition, authorized an additional congressional district and necessitated reformatting of the State House and Senate districts. Even prior to receipt of the 1990 census data, the General Assembly prepared for reapportionment. On February 28, 1991, both the House and Senate adopted redistricting guidelines in order to clarify the drafting process. See Johnson III, State Exh. 8, 4. Both versions required public hearings, allowed for submissions by “third parties” outside the Assembly, and provided a list of criteria: single-member districts only, equality of population among districts, contiguous geography, avoiding dilution of minority voting strength, following precinct lines where possible, and complying with sections 2 and 5 of the Voting Rights Act, 42 U.S.C. §§ 1973 and 1973c, respectively. Once these requirements were met, drafters could consider maintaining the integrity of political subdivisions, preserving the core of existing districts, and avoiding contests between incumbents. Pursuant to the guidelines, public hearings were held throughout the state in the spring of 1991. While the General Assembly presumably considered the guidelines a realistic tool for drafting reasonable voting districts and while some of its members were veterans of past redistricting wars, many of the legislators probably could not have anticipated the extraordinary and unprecedented steps that the DOJ would demand before preclearing the State’s redistricting plan. Those requirements started to become apparent as early as late June of 1990 at the National Conference of State Legislators, which was attended by Representative Bob Hanner, Chair of the House Reapportionment Committee, several other legislative leaders, and Ms. Linda Meggers, Director of Reapportionment Services for the Georgia General Assembly and a member of the state reapportionment task force. A primary focus of the conference was reapportionment and compliance with the Voting Rights Act. Seminars were tailored to address preclearanee issues for states such as Georgia, that are subject to preclearance. Johnson I, Tr. I, at 15. The most prominent speaker concerning the Voting Rights Act was Assistant Attorney General John Dunne. Mr. Dunne critically singled out the State of Georgia and its redistricting history, so much so that the Georgia delegation inferred that the DOJ would particularly scrutinize their efforts. Based on the seminars and Mr. Dunne’s comments, Ms. Meggers and the legislative leadership came away from the conference firmly believing that in order to obtain section 5 preclearance, a state must draw a majority black district where one can be drawn. Johnson III, Tr. at 41-42, 301, 403. In other words, they perceived that the DOJ would require them to subordinate traditional race-neutral districting principles to the goal of maximizing the number of majority black districts. During that same time, Ms. Kathleen Wilde, then an attorney with the American Civil Liberties Union, elicited the assistance of Ms. Meggers and the Reapportionment Office in creating a redistricting proposal for her clients, principally Representatives Cynthia McKinney and Tyrone Brooks. Id. at 44, 46. The Reapportionment Office houses the computerized census data for the State. Its computer maintains data concerning the total population, the total black population, and the total voting age population, by race, down to the precinct and even census block levels of each county. Id. at 34-35. Ms. Meggers testified that Ms. Wilde came to the Reapportionment Office with a hand-colored map on which she had identified and shaded in majority black census blocks. Id. at 47. In order to create a majority black House district, Ms. Wilde, with the help of the Reapportionment Office staff, linked together enough majority black precincts and census blocks to create such a district. After she had created as many majority black House districts as she could muster, Ms. Wilde essentially linked the House districts together insofar as possible in order to create a plan for the Senate. Ms. Wilde’s House and Senate plans then became the basis for part of the lines forming the congressional districts later determined to be unconstitutional. Id. at 50-51; Johnson I, Tr. IV, at 72-73; Johnson III, Pl.Exh. 120-5, at 6-7 (sworn statement of Ms. Penny Williams of the Reapportionment Office). Because Ms. Wilde’s goal was to create as many majority black districts as possible, her proposal earned the descriptive appellation, the “max-black plan.” Johnson I, 864 F.Supp. at 1360. Although this plan served well its drafters’ goal — to identify as many areas as possible where majority black districts could be created — it was not a cohesive state-wide plan, because it did not address districting in areas outside those regions where majority black districts were sought to be drawn. Johnson III, Tr. at 59. Indeed, as was later learned, it would have been impossible to adopt in its entirety the max-black plan and at the same time create a cohesive, workable plan for the entire state. The final max-black plan provided for: fifteen majority black districts in the State Senate, and forty-nine majority black districts in the State House. Johnson III, PI. Exh. 2, 67, 174, 175. Comparing this plan to the 1982 legislative districting plan, modified to incorporate the 1990 census data, the number of majority black districts in existence under the 1982 plan was eleven in the Senate and thirty-two in the House. Id., Pl.Exh. 124, 130. With regard to the number of majority black districts drawn in the max-black plan, Ms. Wilde asserted that her purpose “was to draw as many districts as possible consistent with equal opportunity for black citizens in Georgia.” Johnson I, Tr. IV, at 71. That is, her plan attempted to increase the number of majority black districts so that their percentage of the total would equal the percentage of Georgia’s black population. Id. at 72. It is clear, however, that the max-black plan also sought to maximize black voting strength by artificially pushing the percentage of black voters within some majority black districts as high as possible. Johnson I, 864 F.Supp. at 1361. In order to achieve the max-black goals, the district lines had to be drawn in “funny ways,” with little regard for geographical compactness, political subdivisions, or other traditional districting principles. The max-black plan was submitted to the legislature and the DOJ several times during the redistricting process. Id. B. The Preclearance Process In August 1991, the General Assembly conducted a special session to consider its own redistricting and that of the State’s congressional districts. The tortured progress of the State’s legislative redistricting plan mirrored that of Georgia’s congressional redistricting plan. The legislative redistricting plan and the congressional redistricting plan were presented to the DOJ for preclearance at or about the same time. The legislative plans and congressional plans enacted by the General Assembly were rejected again and again by the DOJ in objection letters that echoed the same complaints: in essence, that the State had not created enough majority black districts, and that its failure to do so reflected its unwillingness to recognize the existence of “alternative configurations” that would “provide black voters ... with an opportunity to participate in the political process and to elect candidates of their choice.” As the Johnson I Court found, at the insistence of the DOJ, maximization of black voting strength became the order of the day. 864 F.Supp. at 1368-69. Indeed, because the first legislative plan was objected to by the DOJ, even though it increased the number of majority black legislative districts over those in existence in the 1982 plan, it quickly became clear to legislators that retrogression was not the focus of the DOJ inquiry. Rather, the “alternative configuration” or “alternative plan” that the DOJ repeatedly criticized the State for not adopting was understood by the legislative leaders of the redistricting process to be the max-black plan. See infra at pp. 1538-1539. The chronology of the legislative and congressional preclearance processes establishes an important linkage between this case and the Johnson I Court’s finding that the DOJ’s black maximization policy dominated the congressional redistricting process. The DOJ’s contemporaneous review and simultaneous rejection of Georgia’s legislative and congressional redistricting submissions bolsters the application of such finding to this case. More specifically, on October 1, 1991, the State submitted the first legislative and congressional districting plans passed by the General Assembly. The legislative and congressional districting plans were rejected by the DOJ in a January 21, 1992 letter. In that letter, the DOJ interposed objections to both plans, explaining that it was aware of other “reasonable alternative configurations” available to the legislature to enhance black voting strength. After making the perceived necessary changes in the plans, the State resubmitted the Senate and House plans on February 20, 1992, and the congressional plan on March 3, 1992. Again, both the legislative and congressional districting plans were rejected in a March 20, 1992 letter. The State submitted the House and Senate plans a third time for preclearance on March 25, 1992. The DOJ precleared the Senate plan but objected to H-133, demanding further increases in the black population of that district. After the General Assembly complied, the House plan was finally precleared on April 2, 1992, in the same letter that precleared the State’s congressional plan. The preclearance processes for the State congressional plan and the State legislative plan were closely related; the hearings, debates, negotiations, and the pressures the DOJ brought to bear upon the creation of both plans were inextricably intertwined. Thus, the evidence regarding the DOJ’s preclearance methods and policies from Johnson I and II is relevant to this case. Because of that evidence and evidence we heard in this case, we reach the same finding of fact with regard to the legislative districting process that the court reached in Johnson I, 864 F.Supp. at 1364: the max-black plan became the “benchmark” against which the DOJ measured Georgia’s efforts. During the redistricting process, Ms. Wilde maintained a close and informal relationship with the DOJ attorneys overseeing preclearanee. Id. at 1362. The dynamics of that relationship were “that of peers working together, not of an advocate submitting proposals to higher authorities.” Id. In fact, after the second objection letter of March 20, 1992, a DOJ attorney instructed Mark Cohen, the Senior Assistant Attorney General for Georgia, to work with Ms. Wilde on the House redistricting plan because Ms. Wilde “was still having some problems with it.” Johnson I, Tr. V, at 3. Another incident also demonstrates the extent to which the DOJ delegated the section 5 submission process to Ms. Wilde and dedicated that process to implementation of her max-black plan. On one occasion, Ms. Wilde and Representative McKinney were in one room of the Reapportionment Office on the telephone with a DOJ attorney to whom they were communicating how a particular district should be drawn; this DOJ attorney, in turn, would then parrot these directives of Ms. Wilde and Representative McKinney to Georgia Assistant Attorney General Cohen, who was on another telephone line in another room of the Reapportionment Office talking with the DOJ attorney. In essence, Ms. Wilde and Representative McKinney were simply dictating to Mr. Cohen, through a DOJ attorney, how a particular district should be drawn. Johnson III, Pl.Exh. 120-5, at 23 (sworn statement of Penny Williams of the Reapportionment Office). The most compelling evidence that the max-black plan was the benchmark for the legislative and congressional districting plans is the testimony of those persons directly involved with the process. Ms. Meggers testified that the max-black plan was the benchmark for the final plan in both the House and Senate. Johnson III, Tr. at 55. In several instances, Ms. Meggers testified that certain districts were drawn specifically to match the majority black districts in the max-black plan. Id. at 69, 82, 84, 93, 111, 113, 126, 133, 160, 167, 170. Throughout their testimony, Ms. Meggers and Representative Hanner explained that the legislative leadership interpreted the DOJ objections to be based specifically on the max-black plan. E.g., id. at 81 (“Basically we interpreted [the DOJ objections] to mean to come closer to drawing a plan that matched the Black Max House plan.”); id. at 305 (“[W]e had to put the Black Max Plan into effect.”). Realizing that the “alternative configurations” and “alternative plans” referred to in the DOJ’s objection letters were the max-black plan, and that acquiescence with the DOJ’s demands was the only way to get a plan precleared, the House leadership became concerned only with drawing a legislative plan that “followed the letter to the letter.” Johnson III, Tr. at 316. Senator George Hooks testified that the Senate adopted the same attitude. Id. at 364. The testimony of these persons directly involved with the reapportionment process is corroborated by comparing the max-black plan with the DOJ’s demands in the objection letters. See Johnson I, 864 F.Supp. at 1362; Johnson III, Tr. at 149 (“As you read the [objection] letters it’s obvious [the DOJ was] referring to the Black Max Plan as the[ ] benchmark in judging the submission.”). During litigation of Johnson I, the DOJ denied that the max-black plan was used as a benchmark, an implausible denial given the abundant and compelling evidence that that plan was obviously the benchmark for the DOJ during the preclearance process. The Johnson I Court rejected the DOJ’s denial, 864 F.Supp. at 1368, as did the Supreme Court, Miller v. Johnson, — U.S. at-, 115 S.Ct. at 2492 (stating “it would appear the Government was driven by its policy of maximizing majority-black districts,” and referring to “the District Court’s well-documented factual finding ... that the Department did adopt a maximization policy and followed it”). In defiance of the findings of those courts, and in the face of the overwhelming evidence against it, the DOJ stubbornly insists to this day that it did not pursue a black maximization policy in reviewing the State of Georgia’s redistricting plans in 1992. Apparently, even the suggestion that the DOJ pursued such a policy evokes disdain from high DOJ officials. Like the Johnson I Court, we find the DOJ’s disclaimers to be disingenuous. It is clear that a black maximization policy had become an integral part of the section 5 preclearance process of the Voting Rights Division of the DOJ when the Georgia redistricting plans were under review. The net effect of the DOJ’s preclearance objection letters, issued pursuant to the black maximization policy, was to require the State of Georgia to increase the number of majority black districts in its redistricting plans, which were already ameliorative plans, beyond any reasonable concept of non-retrogression within the meaning of section 5 as interpreted by then existing case law, Beer v. United States, 425 U.S. 130, 141, 96 S.Ct. 1357, 1358, 47 L.Ed.2d 629 (1976), and as subsequently interpreted in Miller v. Johnson, — U.S. at ---, 115 S.Ct. at 2492-93. By the end, the State of Georgia had submitted four different versions of the House plan and three different versions of the Senate plan. As compared to the number of majority black districts in the 1982 plan as adjusted by the 1990 census, the number of majority black Senate seats was increased from eleven to thirteen in the precleared version. The number of majority black House seats was increased from thirty-two to forty-two in the precleared version. In -short, the 1992 plan represented the General Assembly’s surrender to the black maximization policy of the DOJ. Johnson III, Tr. at 42. C. Doing the Right Thbig The similarities between the reapportionment process involving the General Assembly and the State’s congressional plan are undeniable. Therefore, after the Supreme Court decided Miller v. Johnson, — U.S. -, 115 S.Ct. 2475, the legislative leadership in Georgia knew that part of the 1992 plan violated the Equal Protection Clause. The General Assembly acted to cure the constitutional violations by redistricting itself in a 1995 special session. The result, the 1995 plan, was submitted to the DOJ on November 15, 1995. The DOJ requested additional information relative to the redistrieting process on December 22, 1995. In its responsive submission, the State admitted: Johnson III, Pl.Exh. 120-3, at 32. In other words, faced with the Supreme Court’s decision in Miller v. Johnson, the State of Georgia properly recognized that parts of its 1992 plan were unconstitutional, and its 1995 plan represented an effort to correct those constitutional violations. It is clear that the 1991-92 House and Senate plans are subject to an attack pursuant to the law announced by the U.S. Supreme Court in Johnson. The redistricting process of 1991-92 which violated the Equal Protection Clause of the Constitution resulted not only in congressional redistricting, but also House and Senate redistricting. The evidence is overwhelming that a number of redistricting decisions during that period were the direct and deliberate result of the DOJ’s black maximization policy condemned in Johnson. The evidence is also uncontroverted that many of the district lines found violative in the congressional districts now struck down by the District Court in Johnson were actually based on House and Senate lines which were addressed in the 1995 special session. The DOJ was unwilling, however, to approve the State’s 1995 plan. On March 15, 1996, the eve of the adjournment of the legislature’s 1996 regular session, the DOJ issued a letter objecting to the 1995 plan. In its letter, the DOJ acknowledged the State’s assertion that the plan’s changes were made to comply with Miller v. Johnson, — U.S. -, 115 S.Ct. 2475. Nevertheless, it cursorily dismissed the State’s argument, stating: “Neither the cited court decisions, nor any other court decisions, directly address the Georgia State House and Senate plans.” Johnson III, Pl.Exh. 122, at 2. In resisting the State’s effort to cure the constitutional defects of the 1992 plan, the DOJ dismissed the findings of the Johnson I Court, which were affirmed by the Supreme Court, by simply stating: The Attorney General and the Department of Justice do not have a policy of requiring “maximization” of black voting strength; rather we evaluate each submitted voting change based on the available facts and existing law. Indeed, the absence of such a maximization policy is demonstrated by the 1991-92 state legislative redistricting process and our Section 5 review. Put simply, the redistricting plans precleared by the Attorney General in 1992 for both the State House and Senate created fewer majority-black districts than did various alternative plans, including the BrooksMeKinney, so-called “max-black” plan. Id. at 2-3. Based on its position that the 1992 legislative redistricting plan was not the product of the same black maximization policy that had influenced the congressional districting plan, the DOJ used the 1992 plan as the retrogression benchmark against which to measure the 1995 plan. Thus, the DOJ rejected the 1995 plan because it decreased the number of majority black districts in both the House and the Senate from the 1992 plan. The timing of the DOJ’s March 15, 1996, objection letter was critical. The qualification of candidates for legislative office was scheduled for April 22-26, 1996, only five weeks away. Yet, the State of Georgia had no constitutional legislative districting plan in place for those elections. Its efforts to cure the constitutional defects it recognized in the 1992 plan had been thwarted by the DOJ’s objections to the 1995 plan. The DOJ took steps seeking to block any use of the 1995 plan, attempting to force Georgia to elect its legislature under the 1992 plan, unconstitutional parts and all. D. Section 5 Litigation Following its objection letter, on March 21, 1996, the DOJ filed a proceeding in the United States District Court for the Northern District of Georgia (“Northern District section 5 case”), seeking to enjoin the conduct of elections in Georgia under the unprecleared 1995 plan. United States v. Georgia, No. 1:96-CV-700 (N.D.Ga. filed March 21, 1996). In that Northern District section 5 case, the initiating district judge sought the designation of a three-judge district court by the Chief Judge of the Eleventh Circuit Court of Appeals. Thereafter, the Chief Judge of the Eleventh Circuit Court of Appeals designated the same United States circuit judge and the same two United States district judges to act in the Northern District section 5 case as were designated in the present case (Johnson III). The wisdom of designating the same judges for both eases has been borne out in the elimination of confusion and in streamlining proceedings which, because of time constraints, were conducted on a virtual emergency basis. At a hearing conducted in Atlanta on April 4, 1996, the three-judge district court in the Northern District section 5 case enjoined Georgia’s legislative elections under the unprecleared 1995 plan, as the court was required to do by the Voting Rights Act and applicable case law. United States v. Georgia, No. 1:96-CV-700-JEC, 1996 WL 480861 (N.D.Ga. April 9, 1996) (order granting preliminary injunction) (“[Tjhis Court has no power to weigh the merits of the Attorney General’s objections, but instead may determine only whether the plan has been precleared.” (citing Clark v. Roemer, 500 U.S. 646, 111 S.Ct. 2096, 114 L.Ed.2d 691 (1991); McDaniel v. Sanchez, 452 U.S. 130, 101 S.Ct. 2224, 68 L.Ed.2d 724 (1981))). The effect of the injunction in the Northern District section 5 case left Georgia with only the 1992 plan to use in its forthcoming legislative elections. In the Northern District section 5 case, the DOJ sought more than an injunction against Georgia’s implementation of the 1995 plan. In addition, the DOJ requested an order prohibiting Georgia officials, who are also defendants in the present Johnson III lawsuit, from arguing in this proceeding that the unprecleared 1995 plan should be used as a remedial plan if the 1992 plan was held to be unconstitutional. The court refused that relief, declining to restrict any party’s argument in the present case. E. Preliminary Injunction Hearing Immediately following the April 4, 1996, injunction hearing in the Northern District section 5 case, a scheduling conference was conducted in Johnson III. Pursuant to that scheduling conference and after some pretrial proceedings conducted by the initiating judge, the hearing on Plaintiffs’ motion for preliminary injunction was held in Augusta, Georgia, on April 16-18, 1996, and was continued in Atlanta, Georgia on April 23-24, 1996. The hearing was bifurcated generally along the lines of liability (unconstitutionality) and remedy. In their amended complaint, Plaintiffs challenged twenty-three House and ten Senate districts in the 1992 legislative districting plan. Because of severe time limitations, for preliminary injunction purposes only, Plaintiffs narrowed their focus to sixteen House districts and seven Senate districts. The State has conceded the unconstitutionality of each of these twenty-three districts. Having insisted in the Northern District section 5 case that the State of Georgia use only the 1992 plan, the DOJ attorneys, under the most direct questioning by the Court at the close of the liability hearing, finally conceded the unconstitutionality of one House district (H-141) and one Senate district (S-11) in the 1992 plan, after earlier stating only that they would offer no evidence with respect to those two districts. The Abrams Intervenors concurred with the DOJ’s concession. By necessity, the concession of unconstitutionality of H-141 required the redrawing of the challenged H-140, because the two districts are integrally related to one another. After the liability hearing in Augusta on April 16-18, 1996, and after the three judges had conferred, this Court informed the parties by telephone conference call on Sunday, April 21, 1996, of its decision, for preliminary injunctive purposes, on liability. In determining liability at this stage, the Court decided that Plaintiffs had abundantly established a substantial likelihood of success on the merits with regard to the uneonstitutionality of the following sixteen districts, districts for which injunctive relief is compelled: Senate Districts: 10,11, 55; and House Districts: 111, 120, 121, 131, 133, 136, 140, 141, 158, 159, 173, 178, and 179. A separate remedy phase hearing was conducted on April 23-24,1996, in Atlanta, Georgia, by agreement of the parties. During that interim remedy hearing, the Intervenors announced that, upon consideration, they would not oppose inclusion of the State’s 1995 plan districts in the Court-ordered interim remedy for all districts not objected to in the DOJ’s March 15,1996, objection letter. This announcement narrowed the Court’s focus in the remedy phase to thirteen districts to which the DOJ had interposed an objection in its March 15, 1996 letter. Those thirteen districts are: H-120, H-121, H-131, H-149, H-151, H-158, H-159, H-173, H-178, H-179, S-10, S-12, and S-55. The Court had previously announced that ten of those thirteen districts, specifically H-120, H-121, H-131, H-158, H-159, H-173, H-178, H-179, S-10, and S-55, were unconstitutional. Plaintiffs and the State Defendants argued that because the DOJ’s objections to those ten districts were premised upon a comparison to unconstitutional districts in the 1992 plan, the 1995 plan should be used for those ten districts as well. The Intervenors did not agree with that proposition as to all ten of the districts, but they did agree to use of the 1995 plan for H-121, H-131, and H-173. Thus, the remaining seven unconstitutional districts, to which the DOJ interposed objections, were still in controversy. The three districts that were not determined to be unconstitutional at this preliminary stage and which had been objected to in the March 15, 1996, letter were also still in controversy for purposes of determining their remedy configurations. Thus, at the conclusion of the hearing in Atlanta on April 24,1996, it finally appeared that the Court, in the remedy phase, would have to deal with only ten remaining districts. Accordingly, we have moved in this litigation from a starting point at which the DOJ sought to enjoin, for purposes of the upcoming election, the use of any part of the unpreeleared 1995 plan, to a point at which the DOJ and the other Intervenors have essentially agreed to an interim remedy that would implement, for the time being, 226 of the 236 districts from the unpreeleared 1995 plan. IV. LIABILITY: THE PRELIMINARY INJUNCTION STANDARD Plaintiffs have moved this Court for preliminary injunctive relief enjoining the upcoming elections for the Georgia House of Representatives and State Senate under the 1992 legislative districting plan. Although this case presents constitutional issues of the greatest importance to the citizens of Georgia, the standard for the issuance of a preliminary injunction is the same as in any other civil case. Before a preliminary injunction is granted, Plaintiffs must show the following: (1) a substantial likelihood of success on the merits; (2) a substantial threat of irreparable harm if the injunction were not granted; (3) the threatened harm to plaintiffs outweighs the harm an injunction may cause the defendants; and (4) the public interest will not be disserved by grant of a preliminary injunction. See, e.g., Church v. City of Huntsville, 30 F.3d 1332, 1342 (11th Cir.1994); Snook v. Trust Co. of Ga. Bank of Savannah, N.A., 909 F.2d 480, 483 (11th Cir.1990). It is noteworthy that the State of Georgia has conceded that the existing House and Senate plans are unconstitutional racial gerrymanders. Normally, such a concession between parties would be dispositive of the issues in a case, but this ease also involves the intervening interests of the United States and certain registered voters. Because the practical effect of the State’s concession is to invalidate the 1992 plan, the Court must carefully scrutinize that concession, especially in view of the State’s request that the Court interpose the 1995 plan that has not been precleared under the Voting Rights Act. Because of the public interests impacted by this case, we have given the most careful consideration to all aspects of the State’s concession of uneonstitutionality. We find the concession was made in good faith after thorough reflection upon the Supreme Court’s decision in Miller v. Johnson, — U.S.-, 115 S.Ct. 2475. Indeed, we note that the State vigorously defended the 1992 redistricting process during the Johnson I litigation. Accordingly, there is no inference of collusion on the State’s part in making its concession. Rather, we find the State’s concession to be a responsible step in avoiding unnecessary and duplicative litigation and expense. Nevertheless, at least for purposes of preliminary injunctive relief, we have independently evaluated the constitutionality of each challenged district. A. Likelihood of Success on the Merits In considering Plaintiffs’ likelihood of success on the merits, the Court must first examine the merits of Plaintiffs’ legal contentions. Plaintiffs’ request for preliminary relief is premised on their allegation that twenty-three House and Senate districts as configured in the 1992 plan are racially gerrymandered in violation of the Equal Protection Clause of the Fourteenth Amendment. The Equal Protection Clause of the Fourteenth Amendment provides that no State shall “deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const, amend. XIV, § 1. It prohibits the governmental classification of citizens on the basis of race, unless the classifications are narrowly tailored to achieve a compelling state interest. E.g., Miller v. Johnson, — U.S. at -, 115 S.Ct. at 2482. In the seminal case of Shaw v. Reno, 509 U.S. 630, 113 S.Ct. 2816, 125 L.Ed.2d 511 (1993), the Supreme Court recognized that, pursuant to this basic equal protection principle, a state cannot separate its citizens into different voting districts on the basis of race unless the redistricting decisions survive constitutional strict scrutiny. See also Miller v. Johnson, — U.S. at-, 115 S.Ct. at 2490 (“[Wjhere the State assumes from a group of voters’ race that they ‘think alike, share the same political interests, and will prefer the same candidates at the polls,’ it engages in racial stereotyping at odds with equal protection mandates.” (quoting Shaw, 509 U.S. at 647, 113 S.Ct. at 2827)). 1. Race-based Decisionmaking To invoke constitutional strict scrutiny, a plaintiff must show that race was the “overriding, predominant force” in the redistricting process. Johnson I, 864 F.Supp. at 1372 (emphasis omitted). “To make this showing, a plaintiff must prove that the legislature subordinated traditional race-neutral districting principles, including but not limited to compactness, contiguity, respect for political subdivisions or communities defined by actual shared interests, to racial considerations.” Miller v. Johnson, — U.S. at-, 115 S.Ct. at 2488. The plaintiffs in Shaw proved race-based decisionmaking inferentially by showing districts so bizarre in shape and racially gerrymandered as to defy any other raison d’etre except race. Id. at 643-45, 113 S.Ct. at 2825. Although some lawyers and a few judges interpreted Shaw to require a showing of bizarreness, the Supreme Court in Miller v. Johnson, — U.S. at-, 115 S.Ct. at 2486, rejected the proposition that a district must be bizarre on its face before there is a constitutional violation. The Court announced that while the bizarre appearance of a district was persuasive circumstantial evidence of its potential unconstitutionality, a showing by direct evidence, such as direct testimony from legislators about their motivations, may be even more persuasive. Id. In this case, the record is replete with direct and circumstantial evidence that race was the predominant motivating factor in drawing the sixteen districts we have determined to be “unconstitutional.” The officials involved with the redistricting process testified that their only motivation in drafting the challenged districts in the 1992 plan was compliance with the DOJ objection letters. The goals of the DOJ, working closely with Ms. Wilde, were to create as many majority black districts as possible and to increase the percentage of black voting age population in those majority black districts that had not previously elected a black legislator to a point where such a result would be more likely. In attempting to maximize the number of majority black districts, the DOJ dictated the number and location of these districts in its objection letters. Because there were not enough existing concentrations of black voters to allow the creation of the desired number of black districts in a manner consistent with traditional districting principles, the DOJ used computer-generated maps to ascertain where black populations were concentrated. It then required the drawing of lines, using land bridges when necessary, to commandeer the necessary number of blacks into a district. In doing so, the DOJ regularly required the State to ignore governmental subdivisions, such as county and city lines. In some eases, compliance with its dictates required the otherwise unnecessary splitting of precincts. Indeed, several of these mandated majority black districts contain bizarre geographic features. At the liability hearing, the DOJ sought to show that some of these gerrymandered concentrations of black population actually shared communities of interest existing in the district to which they had been imported. However, this argument is flawed because concern about particular communities of interest was not a motivating force behind the inclusion of blacks in such districts. Instead, that proffered rationale is simply an unsuccessful attempt to divert attention from the unyielding purpose of the DOJ, which was to create as many black districts as could be feasibly drawn. Moreover, the evidence offered by the DOJ at the lability hearing in support of the existence of a particular community of interest in a given district was, itself, generally quite unpersuasive. What the Supreme Court said in Miller v. Johnson is precisely applcable here, as well: “It is apparent that it was not alleged shared interests but rather the object of maximizing the District’s black population and obtaining Justice Department approval that in fact explained the General Assembly’s actions.” — U.S. at-, 115 S.Ct. at 2490. An articulation of our findings on a district-by-district basis, delineating how and why each district was drawn, demonstrates that race was the predominant motivating factor in drawing each of the sixteen districts and that it subordinated traditional districting principles. 2. Analysis of Districts Found to be Unconstitutional i) Senate Districts 10 and 55 In the challenged 1992 plan, S-10 and S-55 are located largely in DeKalb County, which is the second most populous county in Georgia. In the predecessor 1982 plan, DeKalb County had one majority black Senate district. At the beginning of the 1992 redistricting process, it was clear that DeKalb’s black population had increased to the point where a second black district would be created naturally by the observance of traditional districting principles. Indeed, because blacks constituted approximately 42% of the population of a county whose population entitled it to almost five Senate districts, the use of traditional districting principles also happened to create a number (two) of majority black districts in the county that was proportionally equivalent to the percentage of blacks in the county. Although this should have satisfied any desire by the DOJ for proportional representation, the DOJ was not content with just two majority black districts in DeKalb County, but insisted on the creation of three majority black districts. The DOJ sent two objection letters for that purpose before the State satisfied the DOJ’s demands. The steps by which the State finally accomplished the drawing of a third district are described below. In the first plan enacted and submitted to the DOJ, two majority black districts existed in DeKalb County: S-55 and a Senate district that later came to be numbered as S-10. S-10 was located entirely in DeKalb County. Because DeKalb County did not have enough blacks to allow for the creation of a third majority black district, in its first objection letter, the DOJ directed the State to go into Clayton County, a county that was south and southwest of DeKalb, to pull out blacks from Clayton to be combined with the blacks in DeKalb County. Misunderstanding the directive of the DOJ, the State thought that the “community of interest” the DOJ believed blacks in Clayton County to enjoy with “residents of the adjacent black majority district” referred to black residents of College Park, a town in Fulton County, just west of the northwest corner of the point where Clayton borders Fulton. The Clayton County blacks enjoying the community of interest were assumed to be the West Clayton County blacks living adjacent to heavily black College Park. Accordingly, in the second plan, State officials drew those blacks out of northwest Clayton and put them in the adjacent, majority black Fulton County Senate district that included College Park. This misstep by the State meant that DeKalb County still did not have a third majority black district, so the DOJ was more direct in its second objection letter, requiring that blacks in Clayton County be pulled out and joined with black neighborhoods in DeKalb County in order to create three majority black districts in that county. This time the State understood the directive and proceeded to draw blacks out of S-44 in Clayton County in sufficient numbers to join them with other black communities in S-10, thereby importing enough black voters to allow the creation of a third majority black district in DeKalb County. In the 1982 plan, S^44 had consisted almost entirely of Clayton County. Indeed, Senator Terrell Starr had represented constituents from these extracted Clayton neighborhoods since 1969. In determining which people should be pulled out of Clayton and put into DeKalb, race was the only consideration. Ms. Meggers began by moving the S-10 line south of DeKalb County to pick up black voters in the immediately adjacent section of Clayton County. She then drew a thin land bridge across a sliver of Clayton, leaping over large contiguous chunks of non-black population, to pick up the entire western quarter of Clayton County. In finding and extracting this black population, she carefully picked black census blocks and split precincts along racial lines in order to give DeKalb County the necessary number of blacks to create a third majority black district. Thus, infused with blacks from Clayton County, S-10 remained majority black and was itself able to free up some blacks for S-55, which now also became majority black. S-43, previously drawn as a majority black district, remained so in this third and final reconfiguration of the Senate districts. Its demands met, the DOJ accepted the redistricting of these districts. In short, Plaintiffs have offered compelling evidence that race was the only factor in reconfiguring these districts and that consideration of race subverted all other traditional redistricting principles. In attempting to rebut this evidence, the Intervenors introduced evidence that the extracted areas of Clayton County arguably constituted a community of interest with the DeKalb core of S-10 to which they had been joined. Senator Nadine Thomas, who lives in the southern part of DeKalb County and who now represents S-10, testified that there was a community of interest between those two areas. She based her assessment on the fact that high schools in the two areas sometimes compete against each other in sporting events. Further, she shops, as she believes do some of her DeKalb constituents, at a J.C. Penney’s Outlet Store and at Southlake Mall, both of which are located in Clayton County. The Court concludes that Intervenors have not produced any evidence that the desire to join communities of interest in any way motivated the State in its siphoning of blacks out of Clayton County and into S-10. Senator Thomas was not a State senator in 1991, and hence she was not aware of the factors motivating the particular configuration of the district. The undisputed evidence indicates that the State’s marching orders from the DOJ essentially were to find enough blacks in Clayton County to create a third majority black district for DeKalb County. When Ms. Meggers was splitting precincts and identifying majority black census blocks, a desire to find communities of interest was not even a remote consideration. Instead, in determining which Clayton residents should stay in S-44 and which should be moved to S-10, she looked only to the race of the residents. Intervenors have not offered any persuasive evidence that the extracted areas of Clayton County had any communities of interest with DeKalb County. Senator Starr, who has lived in Clayton County all his life, was aware of no such community of interest. Indeed, he testified that his black “seat mate” at the time thought the transfer of part of Clayton into DeKalb S-10 was illogical. Moreover, Senator Nadine Thomas, who has resided in DeKalb County since 1976, appeared unaware of any extensive community of interests between DeKalb and the S-10 portions of Clayton County prior to her candidacy for Senator of the newly created district. She testified she had been surprised to find “a pocket of black people in Clayton County.” It would be more than a little curious if DOJ attorneys in Washington, D.C., were aware of a community of interests unknown to longtime residents of the area. Beyond the testimony of the witnesses, an examination of the map and demographic evidence belies any persuasive argument that all of the Clayton County portions of S-10 had any communities of interest with the DeKalb portion. S-10, as finally created in the 1992 plan, is not compact and, given the densely populated metro area in which it is located, is unnecessarily sprawling. Although a portion of the Clayton County part of S-10 is adjacent to DeKalb County, the bulk of the Clayton County section, which is the northwestern part of that county, is adjacent to Fulton County and does not even touch DeKalb County. (In Senate District 10, the northwestern part of Clayton County is connected to the northeastern part of the county by only a narrow land bridge.) If the western section of Clayton County has any communities of interest with the neighborhoods of another county, it would be with Fulton County, the county on which this section primarily borders. Indeed, it is not surprising that State officials misconstrued the DOJ’s directive to join black communities of interest to mean that the DOJ wished to combine the black portion of northwest Clayton County with the adjacent and heavily black College Park section of south Fulton County in S-35. Moreover, to the extent that the black communities of the DeKalb County portion of S-10 have communities of interest with black communities in another county sufficient to override a governmental county subdivision, those would appear more likely to exist with areas in the adjacent and heavily black Fulton County S-36, not with black communities in northwest Clayton County that are not even contiguous and are miles away. This Court concludes that race was the predominant, overriding factor explaining the configuration of S-10 and S-55 in the 1992 plan. The changes in these districts were made solely to meet the demands of the DOJ, whose objection letters insisted on the creation of three majority black Senate districts in DeKalb County. Additionally, the Court concludes that traditional Georgia redistricting principles, including a respect for political subdivisions, were subverted to the DOJ’s overarching racial motivation. That subversion resulted in the creation of a Senate district that straddled two urban counties in a manner that was not present in the 1982 plan and that would not have occurred but for the desire of the DOJ to create a third black district in DeKalb County, something which could not be accomplished solely through the use of the existing black population in DeKalb County. ii) Senate District 11 S-ll is located in southwest Georgia. Although that part of Georgia is sparsely populated, which means that whole counties can generally be used to draw most of a district, the 1992 plan split eight of the ten counties located in the district. S-ll has been described as the “wave district” because of a wave-like configuration of crests and troughs that tracks the black populations in these counties. Intervenors have conceded that this district is unconstitutional. Accordingly, we will discuss it no further. iii) House Districts 111, 120 and 121 H-lll, H-120, and H-121 are contiguous districts that he in east central Georgia and must be considered together inasmuch as their populations were swapped among each other during the redistricting process that produced the 1992 plan. Integral to implementation of the max-black plan was the creation of majority black districts in rural Georgia. The Black Caucus had observed that there were several black legislators from metropolitan areas, but thus far there had not been enough rural black legislators. Hence, they sought districting plans that would ensure the election of as many black rural legislators as possible. In the 1982 plan, as supplemented by the 1990 census, two predecessor districts in this area were majority black in total black population and one was majority black in black voting age population: H-106 had 50.84% BTP and 45.90% BVAP, while H-108 had 55.82% BTP and 51.35% BVAP. Notwithstanding the majority BVAP status of one of these districts, it had continued to elect a white legislator. Therefore, it was thought that in order to increase the likelihood of the election of black legislators in this area, the number of blacks in that district had to be increased. Indeed, according to Ms. Meggers, if the previous majority black district had elected a black representative, there would not have been the same need to achieve high BVAP numbers in these districts; these high numbers were sought specifically to increase the likelihood of a different result in the next election. Therefore, in the first 1991 plan, two heavily majority black districts and two heavily majority white districts were drawn: BTP BVAP H-lll 62.67 57.88 H-116 36.83 33.73 H-120 60.01 55.54 H-121 29.82 26.67 The DOJ rejected this first plan purportedly because Burke County had been split into three districts. (In actuality, Burke had been split only two ways, the same number of ways it had been split in 1982.) The State went back to the drawing board and in the second plan moved Burke completely out of H-120 and redrew the other lines, creating three majority BVAP districts, as follows: BTP BVAP H-lll 54.45 50.11 H-116 58.18 54.08 H-120 36.92 34.70 H-121 62.60 58.84 The DOJ again refused to preclear the plan, but only because of its concern about the racial composition of a local legislative delegation from a different district in this area. Responding to its concerns about that nearby district apparently had no effect on these district lines, and the districts were finally preeleared. In the present proeeeding, H-lll, H-120, and H-121 are at issue; H-116 is not challenged here. Ms. Meggers testified, and this Court finds, that in the drawing of these district lines, racial considerations predominated and subverted traditional districting principles. In order to achieve black maximization, and guided solely by the racial composition of census tracts, the State was forced to ignore city lines and, in some cases, even precinct lines. The splitting of precincts required the creation of additional precincts. Ultimately, the splintering of precinct lines created havoc for voters and election officials. Three particular gerrymanders created to enhance black population are especially worthy of mention. First, in H-lll, the final 1992 plan splits off the panhandle portion of Warren County in order to remove white voters who live there. In both the 1982 plan and the 1995 plan, Warren County had not been split. Second, H-120 in the 1992 plan utilizes a narrow, jutting protrusion that splits two counties. Third, in order to create a majority black district in H-121, the State had to pull white voters from that district and put them into H-122. It also had to go into the City of Milledgeville and split it along racial lines in order to gain enough blacks to create a majority black district. Milledgeville is located in a county that, in the past and currently, has had to be split because its population exceeds the number appropriate for a House district. Nevertheless, in the past, Milledgeville itself had not been split and had been wholly included within a district that also included the western part of Baldwin County. (Because the 1995 plan contains a similar district, it appears that population concerns would have permitted that traditional drawing of a district wholly including Milledgeville in the 1992 plan.) However, in the 1992 plan, Milledgeville was split in a meandering fashion solely for racial reasons. Moreover, the 1992 plan joined parts of Milledgeville, a city with a large hospital and a college, with the economically depressed county of Hancock, something not done in the 1982 plan. iv) House District 1S1 In the 1992 plan, H-131 is comprised of parts of Meriwether, Coweta and Troup Counties. The overall appearance of H-131 is similar to that of a pinwheel with tentacle-like extensions into Coweta, Troup and the southern portion of Meriwether Counties. In the final 1992 plan, the black population percentages were 60.07% BTP and 55.68% BVAP. Aware from DOJ official John Dunne’s comments at the Baltimore meeting that if it could draw a majority black district, it must do so, the State drew this district, which was contained in the max-black plan, for the purpose of creating a new majority black district. In the 1982 plan, the predecessor district, H-91, was quite regularly shaped and included two whole counties