Full opinion text
ORDER Presently before the Court are two cases, which have been consolidated for trial by this three-judge panel, because each case challenges on constitutional grounds certain election districts for the South Carolina General Assembly. In Smith, et al. v. Beasley, et al., Civil Action No. 3:95-3235-O, the challenge involves three Senate election districts, and in Able, et al. v. Wilkins, et al., Civil Action No. 3:96-0003-O, the challenge is to nine House of Representative election districts. The contested senatorial districts were created by act of the General Assembly on the 11th day of May, 1995, and approved by the United States Department of Justice after review under section 5 of the Voting Rights Act on the 30th day of May, 1995. The contested House districts were created by act of the General Assembly on the 14th day of May, 1994 and approved by the United States Department of Justice after section 5 review on the 31st day of May, 1994. The plaintiffs in these actions allege that the challenged districts were drawn with race as the predominant factor in violation of Shaw v. Reno, 509 U.S. 630, 113 S.Ct. 2816, 125 L.Ed.2d 511 (1993) (“Shaw I ”), and Miller v. Johnson, — U.S.-, 115 S.Ct. 2475, 132 L.Ed.2d 762 (1995). After consolidating these cases, we delayed commencing the trial until the Supreme Court decided Shaw v. Hunt, — U.S. -, 116 S.Ct. 1894, 135 L.Ed.2d 207 (1996) (“Shaw II ”), and Bush v. Vera, — U.S. -, 116 S.Ct. 1941, 135 L.Ed.2d 248 (1996) on June 13, 1996. The trial of this matter came before this court on August 12, 1994. After hearing over two weeks of testimony, reading numerous depositions, considering scores of exhibits and maps, and reviewing the voluminous stipulations, we make the following Findings of Fact and Conclusions of Law. I.JURISDICTION 1. This court has jurisdiction pursuant to '28 U.S.C. §§ 1331, 1343(a)(4), and 2201(a), and the suit is authorized under 42 U.S.C. § 1983. The three-judge panel has been properly appointed by the Chief Judge of the Fourth Circuit Court of Appeals pursuant to 28 U.S.C. § 2284. South Carolina is a covered jurisdiction under section 5 of the Voting Rights Act of 1965, 42 U.S.C. § 1973c. II.PARTIES 2. The plaintiffs in the Senate case include at least one registered voter from each of the challenged senatorial districts, being Districts 29, 34, and 37. The plaintiffs in the House case include at least one registered voter from each of the challenged House districts, being Districts 12, 41, 54, 76, 82, 91, 103, 118, and 121. Some of the plaintiffs are African-American, and others are Caucasian. 3. Defendant David M. Beasley is the Governor of South Carolina, and Defendant Robert L. Peeler is the Lieutenant Governor. They are being sued in their representative capacities. Defendant David H. Wilkins is the Speaker of the South Carolina House of Representatives and is a defendant in both suits in his representative capacity to facilitate whatever remedial action may be required. 4. Defendant Marshall Williams was, at the time the Senate action was commenced, the President Pro Tempore of the Senate. He died after commencement of the action and has been replaced by his successor, John Drummond. 5. In the House case, the court allowed registered voters from each of the challenged House districts, who are represented by the American Civil Liberties Union (ACLU), to intervene as defendants pursuant to Federal Rule of Civil Procedure 24(b)(2) in order to defend the challenged House districts. In addition, in the Senate case, the court allowed a registered voter from Senate district 37, who is also represented by the ACLU, to intervene so as to defend the challenged Senate districts. 6. On May 3, 1996, the court granted the motion of the United States of America, acting through its Department of Justice, to intervene in the House case pursuant to 42 U.S.C. § 2000h-2. III.SOUTH CAROLINA GENERAL ASSEMBLY 7. The South Carolina General Assembly is a bicameral legislative body made up of a 124-member House of Representatives and a 46-member Senate. The term of a Senator is four years and of a Representative two years. Members of both the Senate and the House are elected from single-member districts. During regular elections for both the Senate and the House, every seat is at issue, because there are no staggered terms in either body. 8. Normally, it is the responsibility of the General Assembly, subject to the approval of the Governor, to redistrict the State Senate and the State House of Representatives. S.C. Const. art. III, § 3. Only when a legislature fails to redistrict according to the federal Constitution and applicable federal statutes in a timely fashion does judicial relief become appropriate. White v. Weiser, 412 U.S. 783, 794-95, 93 S.Ct. 2348, 2354-55, 37 L.Ed.2d 335 (1973). IV. HISTORY OF STATE LEGISLATIVE REAPPORTIONMENT 9. Prior to the Supreme Court’s landmark decision of Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964), which established the “one person, one vote” principle, the county lines of South Carolina’s 46 counties defined the electoral districts for both houses of the General Assembly. In the Senate, each county was entitled to one senator. S.C. Const. art. III, § 6. In the House, representatives were apportioned to the counties based on population, but each county, regardless of size, received at least one representative. S.C. Const. art. III, §§ 3, 4. 10. Shortly after Reynolds v. Sims, the South Carolina Constitution’s method of apportioning the General Assembly was invalidated as violating the one person, one vote principle. O’Shields v. McNair, 254 F.Supp. 708, 711 (D.S.C.1966). Thereafter, the General Assembly divided the state along county lines into twenty-seven election districts to be represented by fifty senators. This plan was attacked, and in State ex rel. McLeod v. West, 249 S.C. 243, 153 S.E.2d 892 (1967), the South Carolina Supreme Court held that the fifty-member Senate violated Article III, § 6 of the South Carolina Constitution. The West court ordered the Senate.to reduce its membership to forty-six in time for the 1970 elections. Id. 153 S.E.2d at 894. The Senate then enacted a new plan providing for the election of forty-six members from twenty districts. 11. Following the 1970 census, the General Assembly enacted two alternative plans providing for a forty-six member Senate. The plans contained a mixture of single-member and multi-member districts, using county lines as boundaries. The plans also contained a residency requirement such that each county would have a resident Senator. In McCollum v. West, Civil Action No. 71-1211 (D.S.C. Apr. 7, 1972), a three-judge panel invalidated these plans for the state Senate, finding the plans violated th£ one person, one vote standard, and invalidated the residency requirements for certain senators elected from multi-member districts. In 1972, the General Assembly was again redistricted and made specific findings of fact and statements of policy in connection therewith. The first principle provided: 1. It is the public policy of this state that counties, as constitutionally recognized political subdivisions of this state, shall be treated as basic units to construct election ... districts for reapportionment of the Senate and it is the public policy of the state that in reapportioning the Senate ... county boundaries should not be disturbed. 12. In 1972, the state devised two new forty-six member Senate plans. The McCol-lum court approved the first of these plans, which provided three single-member districts and thirteen multi-member districts containing from two to five members. In Burton v. Sheheen, 793 F.Supp. 1329, 1341 (D.S.C. 1992), vacated sub nom. Statewide Reapportionment Advisory Comm. v. Theodore, 508 U.S. 968, 113 S.Ct. 2954 125 L.Ed.2d 656 (1993), the three-judge panel stated: Thus, in the quarter century since Reynolds, the General Assembly has consistently stated, through its plans and specific statements of policy, that among various state policies, preserving county lines should enjoy a preeminent role in South Carolina’s redistricting process. This preeminence is highly rational. Id. at 1341. The Senate Defendants in the present action disagree with this statement insofar as it applies to redistricting plans enacted after the 1970s. 13. Following the 1980 census, the General Assembly enacted a plan in 1983 (Act 257) creating forty-six single-member districts for the Senate. In so doing, the Senate plan split some counties to comply with the one persona, one vote rule that the districts have substantially equal populations. 14. The State of South Carolina brought a declaratory judgment action against the United States in the United States District Court for the District of Columbia seeking a declaration that Act 257 complied with section 5 of the Voting Rights Act of 1965, 42 U.S.C. § 1973c. While the action was pending, the State permitted candidates to file for election in the Senate districts created by Act 257. The D.C. court declared these candidate filings null and void and enjoined the State from taking any further action in connection with Senate elections pursuant to Act 257 until the Act received preclearance. See South Carolina v. United States, 585 F.Supp. 418 (D.D.C.), appeal dismissed, 469 U.S. 875, 105 S.Ct. 285, 83 L.Ed.2d 164 (1984). 15. While this section 5 action was pending in the D.C. Court, a group of plaintiffs brought suit in the United States District Court for the District of South Carolina seeking to have the court impose a Senate redistricting plan for use in the 1984 elections. Graham v. South Carolina, Civil Action No. 3:84-1430-15 (D.S.C. June 13, 1984). On motion of the United States, the United States District Court for the District of Columbia issued an injunction against the state prohibiting it from asking the Graham court to implement Act 257 or any unprecleared portion of that plan as a remedy in Graham. South Carolina v. United States, 589 F.Supp. 757 (D.D.C.1984). 16. The Graham court then drew an interim redistricting plan for the Senate, which contained forty-six single-member districts and in doing so split twenty-six of the state’s forty-six counties. Of the forty-six districts, nine had a black population majority. 17. In 1984, the General Assembly passed S.A. 513, the Senate redistricting plan, to replace the interim plan of the Graham court. This plan created ten black majority districts in terms of total population. Seven of these ten districts had a black majority in terms of voting-age population. 18. Between 1887 and 1983, no black Senators were elected to the South Carolina Senate. In 1983, one black Senator was elected in a special election in District 7, which comprised parts of Chester, Fairfield, and Richland Counties. Under the 1984 plan, four black Senators were elected from Districts 7, 19, 39, and 42. In the 1988 general election, a fifth black Senator was elected from District 30, and, in a special election in 1990, a sixth black Senator was elected to represent District 45. 19. In 1981, the House obtained ratification of a reapportionment plan without judicial intervention. The plan was precleared by the Department of Justice and used continuously until the 1990 census. By the time of the 1990 census, both the Senate and the House had sophisticated computer software and highly trained technicians to facilitate the reapportionment process. In addition, subcommittees on reapportionment were appointed to study issues exclusively related to redistricting and to fashion plans on behalf of the Senate and the House. 20. The 1990 census found South Carolina’s population to be 3,486,703, resulting in an ideal Senate district population of 75,798 and an ideal House district population of 28,119. The census also revealed that the existing districts for both the Senate and the House had become substantially unequal in population. The Senate Judiciary Committee’s Subcommittee on Redistricting and Reapportionment held public hearings to obtain the views of citizens and interested groups regarding redistrieting. On April 29, 1991, the Subcommittee adopted guidelines for use in formulating redistrieting plans. These guidelines applied to legislative and congressional redistrieting and provided: I. EQUAL POPULATION Equality of population of legislative and congressional districts insofar as is practicable is the goal of reapportionment and redistrieting. A. Legislative districts will be drawn to achieve substantial equality of population among the various districts. 1. As a general proposition, deviations from the “ideal district” population should be justified either as a result of the limitations of census geography, of as a result of the promotion of a rational state policy. 2. In any case, the relative population deviation for any legislative district should not exceed plus or minus 2%. 3. Deviations from the “ideal district” population which would create any district(s) with relative deviation outside plus or minus 2% or an overall deviation greater than 4% must be clearly justifiable as a result of the promotion of a rational state policy or compliance with the Voting Rights Act. B. Congressional districts [not applicable to this litigation.] ... II. VOTING RIGHTS ACT A redistrieting plan for the General Assembly or Congress should not have either the purpose or the effect of diluting minority voting strength and should otherwise comply with Sections 2 and 5 of the Voting Rights Act and the Fourteenth and Fifteenth Amendments to the U.S. Constitution. III. CONTIGUITY All legislative and congressional districts will be composed of contiguous geography. Contiguity by water is acceptable to link territory within a district provided that there is a reasonable opportunity to travel within the district and the linkage is designed to meet the other criteria stated herein. IV. COMMUNITIES OF INTEREST When possible, legislative and congressional districts should attempt to preserve communities of interest where such efforts do not violate Criteria I and II. V. CONSTITUENT CONSISTENCY Efforts will be made to preserve cores of existing districts where such efforts are consistent with and do not violate Criteria I and II. VI. PRECINCT BOUNDARY LINES District boundaries should adhere to voting precinct boundary lines, as represented by the Census Bureau’s Voting Tabulation District (VTD) Lines, in order to minimize voter confusion and cost of election administration. Pending precinct boundary line realignments should be considered. VII. DATA The total state population and the population of the defined subunits thereof, as reported by the 1990 Federal Decennial Census shall be the exclusive permissible data base used for the development, evaluation, and analysis of proposed redistricting plans. VIII. COMPACTNESS All legislative and congressional districts should be reasonably compact. Irregular district shapes may be justified because the district line follows a significant geographic feature or political subdivision boundary or promotes Criteria I and II. 21. The General Assembly did not pass a redistrieting bill before adjournment of the 1990-91 legislative session. The Senate had passed S.1003, its own redistrieting bill, and the House had passed H.3834 to redistrict itself. However, neither body had approved the other’s plan before adjournment sine die, which, by law, must occur not later than 5:00 p.m. on the first Thursday in June. As a general rule, there has been an understanding between the two bodies that neither will interfere with the redistricting of the other. 22. On October 4, 1991, the South Carolina Republican Party instituted an action entitled Michael G. Burton, et al. v. Robert J. Sheheen, (D.S.C.), alleging that the electoral districts for the House, the Senate, and South Carolina’s congressional representatives were malapportioned in violation of the Equal Protection Clause and the Voting Rights Act, 42 U.S.C. § 1973 et seq. Shortly thereafter, the Statewide Reapportionment Advisory Committee (SRAC) and others also filed suit claiming the districts were malap-portioned. The SRAC case was consolidated with Burton on November 13, 1991. 23. In January 1992, with the Burton/SRAC litigation pending, the General Assembly passed both S.1003 and H.3834, but the Governor vetoed both bills on January 29, 1992. In the veto message of the Senate’s plan, the Governor expressed his opinion that the legislature’s action was motivated by a desire to keep incumbents in office at the expense of fairer minority representation; that he was convinced the Department of Justice would not preclear the plan under section 5 of the Voting Rights Act; that the Senate plan did not create any open minority districts where a minority candidate would not face the task of challenging a white incumbent; and that several proposed districts shared little commonality or compactness. He suggested additional majority-minority Senate districts in the Savannah River Valley region between Aiken and Anderson; in the area of Georgetown, upper Charleston, Williamsburg, and Marion Counties; and an additional district in Union, Spartanburg, York, and Chester Counties. 24. In his veto message of the House plan, the Governor again expressed his opinion that the legislation was motivated by a desire to keep incumbents in office at the expense of fairer minority representation; that minority populations had been fractured to benefit white incumbents; and that minority districts were intentionally not drawn in order to further some political purpose. He specifically called attention to eight areas in which he felt minority districts could be established. 25. The legislature sustained the Governor’s veto, and neither the House nor the Senate revised its respective redistricting plan. Accordingly, the trial in the Burton/SRAC litigation commenced in February 1992. At trial, SRAC advocated a Senate plan to create fourteen black majority districts, twelve of which would have a majority of black voting-age population (BVAP). Governor Campbell proposed a Senate plan that would create thirteen black majority districts, twelve of which had a majority BVAP. The Governor’s plan also pitted five pairs of incumbent Democratic senators against each other in the same districts. The South Carolina Republican Party advocated a plan which, like the SRAC plan, created fourteen black majority districts, thirteen of which had a majority BVAP. 26. The three-judge panel in Burton issued its order on April 1, 1992, promulgating its redistricting plan for the House, Senate, and Congress. See Burton v. Sheheen, 793 F.Supp. 1329 (D.S.C.1992). The Burton court plan created eleven black majority districts, ten of which had a majority BVAP. The court indicated that its plan had a de minimis deviation range of 1.95%. It also stated: “In fashioning relief ... the court must be cognizant of § 5 concerns that voting changes have neither the ‘purpose ... [nor] the affect of denying or abridging the right to vote on the basis of race.’ ” Id. at 1345 (quoting 42 U.S.C. § 1973c). The court further observed that it was “not obligated to completely import the standards and requirements of § 2 [of the Voting Rights Act] into a proceeding under § 5.” Id. at 1351. 27. The Burton court noted that the parties had stipulated that “since 1984 there is evidence of racially polarized voting in South Carolina.” Id. at 1357-58. The Burton court explained, “The only cognizable state policy [it] considered [in formulating its plan] was the preservation of county lines.” Id. at 1360. But, the court split twenty-seven (59%) of the state’s forty-six counties. Under the court’s plan, seven black Senators were elected in 1992. They were from Districts 7, 19, 21, 30, 39, 42, and 45. In 1995, the black incumbent senator from District 7 was expelled, and in a special election to fill the vacancy, a white candidate won. Presently, there are six black senators in the General Assembly. 28. No black has ever been elected to the Senate from a majority-white district, except Isaiah DeQuincey Newman, who was elected in 1988 in a special election to represent the Chester-Fairfield-Richland multi-member district. Only two black Senators have ever been elected from a white majority VAP district: Senator Newman and Senator Theo Mitchell. 29. No black has been elected to represent Senate Districts 29 or 37 under the Burton court plan or the areas contained within those districts. Senate Districts 32 and 36 under the court plan both have white incumbents; both districts have higher BVAPs than either of the new BVAP majority districts in S.9 (Senate Districts 29 and 37). 30. Under the court plan, seventeen counties currently do not have a resident senator. 31. The Governor and SRAC appealed the decision in Burton v. Sheheen to the United States Supreme Court. The Solicitor General of the United States filed a brief as amicus curiae in the Burton appeal. In June 1993, the Supreme Court vacated the Burton court plan and remanded the case “for further consideration in light of the position presented by the Solicitor General in his brief for the United States.” Statewide Reapportionment Advisory Comm. v. Theodore, 508 U.S. 968, 968, 113 S.Ct. 2954, 2954, 125 L.Ed.2d 656 (1993). 32. The Solicitor General’s brief in Burton argued that the district court had not given adequate consideration to the requirements of section 2 of the Voting Rights Act in imposing its redistricting plan. The Solicitor General argued that the district court erred in viewing the litigation as arising under section 5 of the Act, which covers pre-clearance, instead of section 2 of the Act. According to the Solicitor General, because the Burton plaintiffs alleged that the existing election districts violated both section 2 and the United States Constitution, the court was required to ensure that any plan it adopted complied in all respects with section 2. The Solicitor General also argued that the court refused to resolve the issue of racially polarized voting and did not respond adequately to the question of whether additional compact and contiguous districts with black majorities could and should have been created in disputed areas to avoid dilution in voting strength in violation of section 2. In addition, the Solicitor General contended there was no basis for the court’s finding that any district in which blacks constitute more than 50% of the voting age population may be.considered a “black opportunity district.” Finally, the Solicitor General also contended that the Burton court appeared to have given undue deference to “state policy” in formulating its plans with, primary emphasis on preserving county and precinct lines. 33. On remand, the Burton court gave the General Assembly an opportunity to pass and obtain preclearance of new redistricting plans for both the House and the Senate. In January 1994, the House passed H.4333, which became R.287 when passed by the Senate. This plan became law on February 15, 1994, without the signature of Governor Campbell, who advised the legislature that the plan failed to create additional districts in which racial minorities would have an, equal opportunity to participate in elections and to elect candidates of their choice. He again called attention to specific areas in which he felt majority-minority districts could be created and also called attention to areas in which he felt minority voting populations had been fractured.' The Governor stated that rather than veto the law, he would allow it to go to the Department of Justice for analysis under the Voting Rights Act, where he felt it would be rejected. 34. On May 2, 1994, the Department of Justice formally objected to the House plan of Act R. 287 in a letter to then-Speaker of the House, Robert J. Sheheen. In its letter, the Department of Justice objected to the House plan “because of the concerns relating to the proposed configurations for the areas identified [in the letter].” The nine areas identified by the DOJ were Marlboro and Dillon Counties; Clarendon, Williamsburg, and Georgetown Counties; Charleston County; Colleton, Beaufort, Jasper, and Hampton Counties; Richland County; Fairfield and Chester Counties; Allendale, Bamberg, and Barnwell Counties; Edgefield, Saluda, and Aiken Counties; and McCormick, Greenwood, and Abbeville Counties. The DOJ concluded that the General Assembly had failed to prove, as required by section 5 of the Voting Rights Act, that the House plan was free of discriminatory purpose and discriminatory effect. In reaching this conclusion, the Department of Justice stated that “legislative elections throughout the state are characterized by a pattern of racially polarized voting.” 35.The Statewide Reapportionment Advisory Committee (SRAC) is an advocacy group for minorities in South Carolina. During the reapportionment process, SRAC worked closely with the Black Caucus of the South Carolina General Assembly. For a number of years, Dr. John Ruoff has been acting as a demographer, advisor and lobbyist for SRAC and the South Carolina Black Legislative Caucus. He testified as an expert in Burton and has been in contact with various officials of the Department of Justice over the years in pursuing the goals of SRAC and the Black Caucus. He has testified as a plaintiffs expert in a number , of section 2 voting rights cases. In his Burton testimony, he was of the opinion that thirty-eight House districts could be created with a bare majority of black population, but the maximum number of electable majority-minority districts was thirty-two. Although his proposed plan was rejected by the Burton court, he continued to work with SRAC, the ACLU, and the NAACP on his “dream plan” to establish thirty-two districts in the House with a black population of 57% or more. He referred to such districts as “super majority districts” and stated that black candidates won 85% of the time in such districts. Of the thirty-two black-majority districts created in the May 1994 plan (the one now under attack), all but four have a total black population of at least 57%. Dr. Ruoff identified election districts with 50% to 57% black population as “phantom districts,” and districts of 25% to 50% black population he called “influence districts.” 36. In December 1993, Dr. Ruoff prepared Plan A for the South Carolina Legislative Black Caucus. That plan included thirty-two districts with a majority BVAP and created new black-majority districts in District 12 (McCormick-Greenwood), District 54 (Marlboro-Dillon), District 76 (Richland County), District 82 (Edgefield-Aiken), District 91 (AUendale-Barnwell-Bamberg), District 118 (Charleston County), and District 121 (Colleton-Beaufort). In addition, the plan strengthened to greater than 50% BVAP District 93 (Calhoun-Orangeburg), District 103 (Williamsburg-Georgetown-Hor-ry), and District 109 (Charleston). The plan also increased to greater than 57% the BVAP in District 41 (Fairfield-Chester). According to Ruoffs summary of the plan, it eliminated the “phantom” districts, District 90 (Bam-berg-Colieton) and District 110 (Charleston), which under the Burton court plan were majority-minority districts in terms of total population, but had less than 50% BVAP. The plan used black population from those two districts to enhance black percentages in other districts. Ruoffs Plan A contained 222 split precincts in his plan, 18 less than H.4333, but the plan split more counties than H.4333, leaving only two unsplit. 37. Dr. Ruoff regularly reported to Representative Don Beatty of Spartanburg County, who was the member of the Black Caucus managing the effort to obtain additional African-American districts. Ruoff also reported on a regular basis to other members of the Black Caucus, as well as to officials of the NAACP and the ACLU. 38. In addition, Dr. Ruoff maintained regular contact with various attorneys in the Voting Rights Section of the Civil Rights Division of the Department of Justice to report his progress and obtain recommendations on his efforts to secure the enactment of his “dream plan.” 39. During the 1993-94 session of the General Assembly, the Black Caucus was concerned with increasing its influence on legislation being considered. A majority of the caucus felt that this objective could best be obtained by increasing the number of African-American members in the House and the Senate. A small minority of the Caucus preferred to go along with a number of white Democrats who argued that black influence was most effective when the BVAP in an election district was 30 to 35%. It was argued that with this substantial minority, an elected official, black or white, would listen to and usually seek to accommodate the minorities’ demands. The majority of the Black Caucus believed that the black population was underrepresented and that the 30 to 35% minority BVAP districts ensured white Democrats control of the General Assembly. In such districts white Democratic candidates could usually defeat black candidates in the primary elections and then use the blacks, who usually voted for the Democratic Party candidate in the general election, to hold off a Republican challenge. 40. The Republican members of the General Assembly also felt that those citizens who identified themselves with the Republican Party were underrepresented. Although the black Democrats and the Republicans had not been political allies on other issues, they began to explore the mutual benefits that might be gained by joining forces in an effort to redraw certain district lines. 41. Representative Don Beatty became the point man for the Black Caucus, and Mark Elam, Chief Counsel to Governor Carroll Campbell, was the primary negotiator for the Republicans. Previously, the reapportionment process for the House had been controlled by Speaker Sheheen, who had not only the power of his personality and office, but also an intimate knowledge of the computers and computer programs kept in the “map room” of the House. Although there were two other House employees working with these computers, the Speaker controlled access to the map room, and House members could visit the room only with his permission, and usually in his presence. If a member wished to consider a change in his or her district, the Speaker would operate the computer and explain why such change could or could not be made. 42. Both the Senate and the House had sophisticated computer equipment that was maintained for the purpose of drawing election district lines. These machines were equipped with software that showed precincts, streets, population and racial composition of all areas based on the 1990 federal census data base. Technicians could show legislators how moving district lines could increase or decrease the racial makeup of a particular district. 43. After the Supreme Court remanded Burton, the three-judge panel directed the General Assembly to try again to adopt a reapportionment plan and set a deadline for the House of April 1, 1994, later extended to June 1994. If the legislative plan was not adopted and had not been precleared by such date, the court would direct the use of its own plan. 44. In January 1994, the House began the reapportionment process. The Speaker had prefiled H.4333, which was similar to the Burton court plan. Representative Beatty received from John Ruoff the SRAC revised plan, known as Caucus Plan A, which contained 32 districts with 50% or more BVAP. This plan was presented by Representative Beatty to the House Judiciary Committee as an amendment to H.4333. At the Committee’s meeting on January 18, 1994, Representative Beatty was asked to what degree his amendment considered “the issue of county lines or communities of interest.” He responded: There was consideration given to these points and we know that they are important. But we thought there was a prevailing interest, a priority higher than that and that is to be representative of the state population. And to be quite frank with you, the new district was drawn on that basis alone. Pls.Ex. 72, at 13-14. 45. Beatty’s effort to amend H.4333 failed, and the bill passed the House and the Senate. Under H.4333, the number of black-majority districts was reduced from twenty-eight, under the Burton court plan, to twenty-seven. This decrease was the result of an amendment to accommodate Representative Juanita White’s request that her district, District 122, have its black population increased. This was accomplished by reducing the black population in District 120, which had been a bare majority-black district, to 47.8%. The black population in Mrs. White’s district was increased from 52% to 59%, and Representative White advised the Department of Justice that these changes were made at her request. 46. Governor Campbell did not veto H.4333, but allowed it to become law without his signature. He advised the Speaker of the House by letter that H.4333 did not create enough black-majority districts and predicted that the plan would not obtain section 5 preclearance from the Department of Justice. Speaker Sheheen submitted the new House reapportionment plan to the Department of Justice for consideration under section 5 of the Voting Rights Act on March 23, 1994. 47. While the Department of Justice was considering H.4333, its attorneys were in constant contact with Representative Beatty, John Ruoff, Laughlin McDonald of the ACLU, and representatives of the NAACP. Notes taken by Department of Justice attorneys of telephone conversations reflect that race was not just the predominant issue discussed, but the only issue involved in these conversations. All of these communications related to creating new districts with a sufficient BVAP to guarantee the election of black candidates. On April 21, 1994, attorneys for the DOJ met with Ruoff and Beatty. Notes of this meeting reflect that the issues discussed were the creation of additional safe black seats in Charleston County, Richland County, McCormick-Greenwood Counties, and Chester-Fairfield Counties. Attending these meetings for DOJ were attorneys handling the preclearance, including Mark A. Posner of the Coordination and Review Section of the Civil Rights Division, and Deval Patrick, Assistant Attorney General in charge of the Civil Rights Division. Ruoff and Beatty were seeking to have the House plan rejected by DOJ and also to have DOJ insist upon the creation of new majority-black districts in the areas set forth in Ruoff s dream plan. 48.On the same day, the same DOJ attorneys met with Mark Elam, Robert Hunter of the Washington firm of Patton, Boggs and Blow, and other attorneys representing the South Carolina Republican Party and the Governor of South Carolina. These individuals were also seeking the rejection of H.4333 and the creation of new black majority districts in the same areas as were Ruoff and Beatty. At this meeting, Attorney Hunter hand delivered to Steven Rosenbaum, Chief of the Voting Rights Section of the Civil Rights Division, a letter written by him as attorney for the Governor of South Carolina asking that H.4333 be rejected. This letter included a copy of the Governor’s January 29, 1992 veto letter to Speaker Sheheen in which the Governor called for the creation of additional black-majority districts in Rich-land, Charleston, Greenville, and Beaufort Counties, Colleton-Hampton County, Georgetown County and McCormick-Greenwood Counties. Attorney Hunter’s letter also sought proportional representation by race. He indicated that as many as thirty-six minority districts could be created and called attention to the fact that the court plan contained only twenty-eight. He stated: However, a chief flaw in this accounting is the concept that any district with a bare majority black voting age population gives the black community an election opportunity. Many of these seats are not “effective.” Even using these flawed raw totals, only if the 1980 plan is used as the benchmark, is the House plan not retrogressive, if any other benchmark is used it is clearly retrogressive and should not be pre-cleared. South Carolina’s black population is 29.71% of its total population and black voting registration of approximately 26% of all registered voters. Therefore, a fairly drawn plan of reapportionment should set a goal of creating approximately 38 to 37 election opportunities in the 124 member House of Representatives for minority communities. This goal is not achieved by the House plan, in large part, in order to protect white, Democrat incumbents. _ Every ten-years, the job of the legislature is to make changes in the representation plan that reflect the political makeup of the state as shown by the census. A plan that does not reflect the political complexion of the state does not achieve this goal. Pls.Ex. 40, at 2. 49. Attorney Hunter’s letter urged DOJ to act before the next status conference to be held by the Burton three-judge panel. The letter states: As you are aware, the Governor, along with others, has been engaged in a lengthy court battle concerning this plan. We urge your Department to quickly conclude its review of the proposed plan and to send a letter objecting to the House plan as soon as practicable, but not later than May 3, 1994, when the U.S. District Court will want another status report on this matter. It is very important that your objection letter list the specific areas of the State of South Carolina where additional minority districts could be drawn. Governor Campbell’s veto message and his message allowing the enactment to go into law contain lists of specific areas in South Carolina where these districts can be created. Governor Campbell allowed this measure to pass into law, largely, at the urging of minority legislators, who believed that they would receive a fairer result before the Justice Department than they would before the three-judge panel. Pls.Ex. 40, at 3. 50. It is obvious from the notes of telephone conversations, memoranda, correspondence, and testimony presented that the Black Caucus, the South Carolina Republican Party, and the Department of Justice were seeking to maximize black representation in the South Carolina House of Representatives with little concern for compactness of districts, contiguity, or communities of interest. Proportionality was the aim as reflected in Attorney Hunter’s letter that the reapportionment goal' should be approximately thirty-three to thirty-seven election opportunities in the 124-member House. This woüld be proportional to the 26% black registered voters in the state and 29.71% total black population. Of course, the correspondence, telephone notes, etc. were generated before the decisions in Miller v. Johnson and Shaw v. Hunt, supra, and the statements made in the spring of 1994 are much more persuasive to the court than those heard at trial, when witnesses were trying to explain their prior words and actions in light of Miller and Shaw II. 51. Deval Patrick, Assistant Attorney General in charge of the Civil Rights Division of the Department of Justice, testified by deposition. He had attended the meetings with Beatty and Ruoff on April 21, 1994 and also with representatives of the Governor and the Republican Party on the same day. He remembered little about the meetings, but as to reapportionment and the shape or configuration of districts, he stated: “I don’t think there is any such thing as a bizarre or irregular shape.” He also stated that the Department of Justice in a section 5 review could consider whether a proposed majority-minority district had a viable black candidate. 52. On May 2, 1994, Assistant Attorney General Patrick, in a ten-page letter to Speaker Sheheen, denied preclearance of H.4333. This letter was issued, as requested by Attorney Hunter, prior to the status report to the Burton three-judge panel. The letter went into great detail in explaining the areas in which additional black majority districts could be created. This was in keeping with the “dream plan” of Ruoff and the Governor’s veto message. The rejection letter makes no mention of compactness or communities of interest; every comment relates to the racial composition of the areas in which DOJ desired majority-minority areas to be created. ' These are as follows: Charleston County The proposed plan, in Charleston County, includes three districts with black voting age population majorities (excluding military population), all of which are represented by black legislators (Districts 109, 111, and 116). Proposed Districts 111 and 116 appear to have substantial black registration majorities. District 109, however, appears to have a slight white registration majority and also includes a white population growth area. There is a fourth district (District 110) that has a black population majority but is only 44 percent blacks in voting age population. Immediately adjacent to Districts 109 and 111 (to the north, south, and southwest) there are significant black concentrations which are fragmented among District 110 and two white-majority districts (Districts 118 and 119). The state has offered no adequate explanation for this fragmentation which, if cured, would result in the creation of four districts in the county with black voting age population and registration majorities in which black voters would have a realistic electoral opportunity. Richland County In Richland County, the state similarly has unnecessarily fragmented black population among white-majority districts, again apparently to protect white incumbents. The county includes four black voting age population majority districts that have elected black representatives. Three of these districts (Districts 77, 78, and 74) are contiguous, aligned on a north-south axis, but to their west and south black population is fragmented into two white-majority districts (Districts 72 and 75). It also appears that, to some extent, black population has been unnecessarily packed in Districts 77, 73, and 74. By remedying this fragmentation and lessening to some extent the black concentrations in these three districts, a fifth black majority district may be drawn with a black voting age population percentage greater than 55 percent. Fairfield and Chester Counties Fairfield and Chester Counties are located immediately to the north of Richland County. Proposed District 41, which includes all of Fairfield County and reaches north to include a portion of Chester County and the City of Chester, has a bare black voting age population majority (51 percent) and appears to be majority white in voter registration. By combining Fair-field Count (54 percent black in voting age population) with- the City of Chester’s black population, the state has created a configuration that has the potential to yield a district with a significant black voting age population majority in this area of the state. However, the black population percentage in District 41 is minimized by drawing the district to the City of Chester through the more heavily white south-central and southeastern portions of Chester County rather than through the southwestern portion of the county where black concentrations are located. The state also includes in the district a majority white area on the eastern side of Fairfield County. The state has not offered an adequate explanation for rejecting proposed alternatives which avoid this minimization of black voting strength. Clarendon, Williamsburg, and Georgetown Counties These three counties occupy a rural area of the state located along an east-west axis from the coast to Richland County. From west to east, the proposed plan includes Districts 64, 101, 103, and 108 in this area. District 101 (located principally in Williamsburg County) is 60 percent black in voting age population in the existing plan and is increased to 65 percent black in voting age population in the proposed plan. In 1992, the current black representative defeated a white candidate in a close and racially polarized Democratic primary election. Existing Districts 64 and 103, located to the west and east of District 101, have bare black voting age population majorities but these majorities are eliminated in the proposed plan. Finally, District 108 is a white-majority district. Our analysis indicates that the elimination of the black voting age population majorities in Districts 64 and 103 violates the nonretrogression requirement of Section 5. Beer v. United States, [425 U.S. 130, 96 S.Ct. 1357, 47 L.Ed.2d 629 (1976) ]. While we understand that the reductions were occasioned by an effort to increase the black percentage in District 101, it appears that this goal could have been achieved without reducing the black percentages in Districts 64 and 103, by making other adjustments in the configurations of the latter districts. In particular, with respect to District 103, the proposed plan places a significant concentration of black population — located in the City of Georgetown — just outside the district on the border with District 108. The state has not explained why it excluded the black population in the City of Georgetown from District 103. Alternatives rejected by the House, which avoided this fragmentation, drew District 103 at above 55 percent black in voting age population. Allendale, Bamberg, and Barnwell Counties Allendale County has the highest black percentage among South Carolina counties (63 percent black in voting age population). While the proposed plan places most of the county in District 91, the black population in the eastern comer of the county is fragmented into District 90, which also involves the division of the towns of Allen-dale and Fairfax between the two districts. In addition, at the northern end of the two districts, there is a band of black population that runs from west to east which is fragmented between the two districts. As a result of. this configuration, neither district has a black voting age population majority although both are over 40 percent black in voting age population. Alternative plans rejected by the legislature retain all of Allendale County in District 91, and also offer the possibility of lessening the fragmentation at the northern end of the districts. Again, the state has not offered an adequate explanation for rejecting these alternatives. Edgefield, Saluda, and Aiken Counties To the northwest of District 91 is proposed District 82 (37 percent black in voting age population), which includes all of Edgefield County and a portion of Aiken County to the east. The state drew District 82 to skirt the black concentrations located in the northern portion of the City of Aiken. In addition, by following the county line between Edgefield and Saluda Counties, the district (on its northern side) appears artificially to fragment a black population concentration located on both sides of the county line. An alternative plan rejected by the House would have modified the Aiken County portion of the district to include black population in the City of Aiken and also minimized the fragmentation on the northern border of the district, thus occasioning a district that is over 55 percent black in voting age population. This alternative configuration appears to more fairly reflect black voting strength in this area, and the state has not justified its proposed configuration. McCormick, Greenwood, and Abbeville Counties Adjacent to District 91, to the northwest, is proposed District 12 (36 percent black in voting age population). This district includes all of McCormick County, a substantial portion of Greenwood County (including a portion of the City of Greenwood), and also a small portion of Saluda County. Alternative plans rejected by the House demonstrated that an additional district with a black voting age population majority over 55 percent may be drawn in this area of the state. This apparently would involve extending District 12 into Abbeville County to include black populations in the towns of Abbeville and Calhoun Falls, removing rural areas in Greenwood and Saluda Counties, while retaining the black population in the City of Greenwood. The state has not provided an adequate explanation of the reasons for adopting its proposed configuration, and thus we are unable to conclude that the state has met its Section 5 burden in this portion of the plan either. Colleton, Beaufort, Jasper, and Hampton Counties This four-county area- occupies the southern tip of the state below the City of Charleston. In the existing and proposed plans, this area includes five whole districts. In the existing plan, two of the districts (Districts 120 and 122) have black voting age population majorities (excluding military population). District 122, which is 53 percent black in registration, includes a large development projected to be occupied primarily by white population. We have been advised that to compensate for this latter circumstance, the proposed plan increases the black percentage in District 122 by transferring black population from District 120, thus making District 120 a white-majority district. As in the Clarendon/Williams-burg/Georgetown area, however, our analysis indicates that the goal of increasing the black percentage in District 122 could have been achieved without occasioning a retrogression in black voting strength which occurs by eliminating from this area a second district with a black voting age population majority. Specifically, it appears that there are significant black concentrations located roughly along the eastern side of this area in Colleton County and in the Cities of Beaufort and Port Royal in Beaufort County. The proposed plan appears to fragment unnecessarily this population among Districts 120, 121, 66, and 124. Marlboro and Dillon Counties In the northeastern part of the state, the proposed plan draws District 54, which includes almost all of Marlboro County, and District 55, which includes almost all of Dillon County. Each district has a substantial black minority population (46 percent and 37 percent black in voting age population, respectively). Significant black concentrations are located in the largest town of each’county, Bennettsville in Marlboro and Dillon in Dillon County. An alternative plan rejected by the House demonstrated that a compact district with a black voting age population majority may be configured in this area (by linking the Cities of Bennettsville and Dillon). The state has not provided an adequate explanation for. its proposed configuration and thus we are unable to conclude that the state has met its Section 5 burden. Pl.Ex. 1, at 5-8. 52.The alternative plan referred to throughout this letter is the Black Caucus Plan A, which was presented by Representative Beatty to the House Judiciary Committee in January 1994. 53. Mark Elam, Chief Counsel to Governor Campbell, and the primary negotiator for the Republicans in dealing with the Black Caucus to create the present plan, testified that the DOJ letter of May 2, 1994 rejecting H.4333 was the impetus for the Republicans and the Black Caucus to cooperate in the presentation of their joint plan, which became known as the Beatty-Clyborne Amendment. Although Representative Clybome’s name is on the amendment, he had very little to do with drawing the lines of the nine districts now in dispute (Districts 12, 41, 54, 76, 82, 91,103; 118, and 121). Preparation of the maps showing the lines for these districts was done primarily by Ruoff and Elam, but the basic concept for the challenged district goes back to Ruoffs original “dream plan.” When asked about communities of interest within these districts, Elam testified that his knowledge of the State of South Carolina supplied this element. 54. The Beatty-Clyborne Amendment came before the House of Representatives as a result of a parliamentary procedure in which Representative Beatty challenged a ruling of Speaker Sheheen by appealing to the full membership of the House. When it became apparent that the coalition of the Black Caucus and the Republicans had sufficient votes to overrule the Speaker, the bill was allowed to come on for a vote. Representative Beatty presented the bill to the House and in doing so stated, in part: Considering that no one is really interested in clarity, I’m going to leave this amendment up here and I’m not going to answer any questions on it. I want to call it to vote. Well, let me tell you this. This amendment creates nine new districts and it complies fully -with the Justice Department’s objections. They’ve asked me to give some further clarification. I said nine new districts. The Speaker would prefer, and he’s probably correct, that I say we create new districts and increase percentages in others. However, without question, it complies with the Justice Department’s objections. Pls.Ex. 71, at 2. In discussing the districts, he stated: Greenwood, McCormick, Saluda. District 12, Representative McAbee becomes a 65 percent black district. District 12 takes Abbeville 2 from Abbeville County. Additionally the district also picks up black population from within and around the City of Greenwood. Id. at 4-5. As to District 41, he stated: There’s an amendment for Fairfield/Ches-ter and I do understand there will be another one coming from the floor, the District 41 Wilkes’ district is increased from 56 percent black population to 62 percent black population. New district 41 has the rest of Fairfield County and southwest corner of Chester County. .District 41 takes part of Eureka Mill[], part of Chester Ward 3, and all of [Halsellville] in Chester County. Additionally, other areas of strong minority concentration in and around the City of Chester are taken by District 41. Id. at 3. As to District 54, his comments were: The Dillon/Marlboro area, District 54 which belongs to Representative Jennings, I do believe, is increased from 49 percent black population to 64 percent black population. We make it a viable minority district. The change is accomplished by swapping several precincts with District 55, which is Representative [Kinon’s] district, which is now 30 percent black and District 53, ... which is now 31 percent black. District 54 takes in [Minturn], Little Rock, West Dillon, South Dillon and part of [Mt.] Calvary. District 55 takes [McColl], Tatterly [sic], Adamsville, Brightsville, Wallace, and parts of [Clio] and Quick Cross Roads. District 54 also takes the black population in the City of Cheraw from District 53. Id. at 3-4. As to District 76, Representative Beatty stated: Changes in Richland [County] create a new 61 percent black minority district [76] along the Two Notch Road/DentsviUe area and strengthen the previous minority district in District 70, Representative Neil [sic], will increase his numbers. District 72 also loses certain precincts to strengthen the minority District 74, Representative Burg. Our [voters analysis] indicated] that those precincts were not kind to us. The result of that District 74 is now 66 percent black district. Additionally, Olympia precinct is split between District 70 and District 72. Additionally the Bluff Road Precinct is moved from District 80, Bubba Cromer, to District 70 adding a minority voting strength to that district. Id. at 7. He stated as to the new District 82: Edgefleld/Aiken. District 82, Representative Stone’s district, we make that a black majority district. We increase that percentage to 63 percent. District 82 picks up Pleasant Cross, Ridge Springf ] and [Fruit Hill] in Saluda Counties, and Aiken 2 and part of Aiken 3 and Aiken 4 and Six Points. Id. at 6. As to District 91, he stated: Allendale, Barnwell, Bamberg. These changes create an electable minority district in District 91, Representative Wilder’s district. By tak[ing] concentrations of minority population of District 90[,] which is Representative Rhoad[’]s district, and get rid of unelectable phantom district that now exists over there. The new district 91 contains all' of Allendale County, encompassing the previously split towns of Allen-dale and Fairfax and put them back together. District 91 also takes the town of Denmark in Bamberg County. Id. at 4. As to District 103, he stated: Georgetown/Horry. [T]his change makes District 103, ... Representative Snow’s district, a majority black district and a viable district. It was previously what we term the “phantom district.” Most of this is achieved by swapping precincts from District 108, Paula Thomas, with minor changes in District 106, Mr. Keys. Id. As to Charleston County, he stated: Charleston, District 109, Representative Whipper, is strengthened by adding middle and upper peninsula of minority precincts in northern Calhoun Street into the district. Additionally, District 109’s minority strength is protected by moving some high growth urban areas in Mount Pleasant out of District 109 into District 110 and that’s Jimmy Bailey. Finally, minority votes have moved from the northern part of District 109 into District 118, Representative Holt, to increase the numbers there and create a majority/minority district. District 109 will now be 63 percent black and District 118 will be 61 percent black. Id. at 6. As to District 121, he. stated: Colleton, Beaufort, Hampton, and Jasper Counties. These changes create a 64 percent black district in District 121, Representative Hamilton’s district. And most of the strength of minority representative district in District 122, Representative White’s district. District 121 takes some of the northern area of the City of Beaufort, all of St. Helena’s precinct, Ladys Island 1-B, and Jacksonboro. District 122 takes both the Estill precincts and the town of Laurie, I believe that’s correct. Id. at 5. As to District 121, Representative White was allowed to make a statement as follows: Mr. Chairman, ladies and gentlemen, this Amendment does a little bit of adjusting within the boundaries of District 120, 121, 122, 123, and 124. It just switches around some population between the four representatives in that area and I move for adoption of this particular agenda. It creates an additional minority district in that area aside District 122, which I am presently representing, which was required from the Justice Department because they had objections in that area for diluting one of the minority black districts in order to increase the strength in the other district. Id. at 7-8. In this short presentation, Representative Beatty mentioned race twenty-four times. There is no mention or consideration of any other factor in drawing the district lines. 55. Several amendments were allowed to the Beatty-Clyborne proposal, but members presenting such amendments were instructed that they would not be allowed if they reduced the BVAP of any proposed district. Members were also told by Beatty that the “Department of Justice is calling the shots” and that he “had the votes and you can’t change it.” The amendments to the plan that were allowed changed lines in such a fashion as to leave the BVAP almost at the exact percentage it had been in the original plan. If moving a line put 200 blacks into another district, then another line had to be changed to bring 200 blacks back into the original district to keep the same BVAP. 56. Shortly after the Black Caucus-Republican Coalition succeeded in getting the Beatty-Clyborne plan out of the Judiciary Committee and onto the floor of the House, Ruoff called Attorney Nancy Sardeson of the DOJ Voting Rights Section and, according to her notes taken contemporaneously with the conversation and which notes were ordered to be produced over stiff objection, Ruoff advised: Broke Sheheen’s back — came out of Judiciary Committee 9 new black districts Screw white boy Democrats Blacker than usual Marlboro/Dillon 64% Aiken/Edgefield wanted to