concurring.
I agree that Councilor Borst's petition for rehearing should be denied. I write separately to explore further his contention that "[the redistricting plan adopted by [this] Court is racially discriminatory." Pet. for Reh'g at 2. Underlying this contention is the fact that the three majority African-American districts resulting from this Court's redistricting plan are not proportional to the percentage of the African-American population in Marion County. Councilor Borst argues that because the African-American population in the county is approximately 24%, that same approximate percentage should be reflected in the number of majority African-American districts. Essentially, according to Councilor Borst, out of a total of 29 districts, there should be 7 majority African-American districts as opposed to 3.
Councilor Borst's claim implicates Seetion 2 of the Federal Voting Rights Act. He does not complain that the Court's plan actually violates the Act. Rather, he contends "[the failure of the Supreme Court Plan to address minority representation concerns dilutes minority voting strength in Marion County and subjects Marion County to the very real possibility of a successful Voting Rights Act suit." Pet. for Relh'g at 7.
*465Congress enacted Section 2 of the Voting Rights Act of 1965, 42 U.S.C. § 1973, to help effectuate the Fifteenth Amendment's guarantee that no citizen's right to vote shall "be denied or abridged ... on account of race, color, or previous condition of servitude." Voinovich v. Quilter, 507 U.S. 146, 152, 113 S.Ct. 1149, 122 L.Ed.2d 500 (1993) (quoting U.S. Const., amend. XV). Section 2(a) of the Act prohibits the imposition of any electoral practice or procedure that "results in a denial or abridgement of the right of any citizen ... to vote on account of race or color." Section 2(b) dictates in relevant part that Section 2(a) is violated if:
[BJased on the totality of cireumstances, it is shown that the political processes leading to nomination or election in the State or political subdivision are not equally open to participation by members of a class of citizens protected by subsection (a) of this section in that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice.
42 U.S.C. § 1973(b). Section 2 thus prohibits any practice or procedure that "interacting with social and historical conditions," impairs the ability of a protected class to elect its candidate of choice on an equal basis with other voters. Voinovich, 507 U.S. at 153, 113 S.Ct. 1149 (quoting Thornburg v. Gingles, 478 U.S. 30, 47, 106 S.Ct. 2752, 92 L.Ed.2d 25 (1986)).
One such practice or procedure is commonly referred to as "vote dilution" which may be caused either "by the dispersal of blacks into districts in which they constitute an ineffective minority of voters or from the concentration of blacks into districts where they constitute an excessive majority." Gingles, 478 U.S. at 46, n. 11, 106 S.Ct. 2752. To prevail on a Section 2 vote dilution claim, the plaintiff must first establish three threshold conditions: (1) the racial group is sufficiently large and geographically compact to constitute a majority in a single-member district; (2) the group is politically cohesive; and (8) the white majority votes sufficiently as a bloc to enable it usually to defeat the minority's preferred candidate. Reno v. Bossier Parish Sch. Bd., 520 U.S. 471, 479, 117 S.Ct. 1491, 137 L.Ed.2d 730 (1997). These three conditions are generally referred to as the "Gingles" test. See Gingles, 478 U.S. at 50-51, 106 S.Ct. 2752.2
In this case a credible argument can be made that at least the first prong of the Gimgles test has been met. "When applied to a claim that single-member districts dilute minority votes, the first Gingles condition requires the possibility of creating more than the existing number of reasonably compact districts with a sufficiently large minority population to elect candidates of its choice." Johnson v. De Grandy, 512 U.S. 997, 1008, 114 S.Ct. 2647, 129 L.Ed.2d 775 (1994) (emphasis added). (reversing in part the judgment of a three-judge court that created a plan that provided for 11 reasonably compact districts, each with a voting age population of at least 64% Hispanic, while rejecting a plan that provided for 9 districts). The Johnson Court further observed "attaching the labels 'packing and "fragmenting without more, does not make the result vote dilution when the minority group enjoys substantial proportionality." Id. at 1015-16, 114 S.Ct. 2647 (emphasis added).3
*466Although the Voting Rights Act does not require courts to "maximize" the number of districts in which minority voters may elect candidates of their choice, id. at 1017, 114 S.Ct. 2647, the link between majority-minority districts to minority members' share of the relevant population, is "always relevant evidence in determining vote dilution, but is never itself disposi-tive." Id. at 1025, 114 S.Ct. 2647 (O'Con-nor, J., concurring).
As the majority here correctly points out, "in drawing districts in the Court's plan, we utilized only the statutory factors of compactness, equality of population, and adherence to precinet boundaries. Nee 1.C. § 86-38-4-3(a). While drawing the district boundaries, we did not consider the African-American, Hispanic, or other minority group population in each district, nor did we try to achieve any particular number of majority-minority districts." Op. at 462. However, in drawing the maps as we did, I acknowledge that it resulted in African-American voters not forming an effective majority in the percentage of districts in reasonable proportion to their percentage in the relevant population.
Nonetheless, this does not mean the votes of African-Americans necessarily have been diluted. There must also be proof that "the white majority votes sufficiently as a bloc to enable it ... usually to defeat the minority's preferred candidate." Gingles, 478 U.S. at 51, 106 S.Ct. 2752. Although there was testimony before the en bame court of "racially polarized voting" in Marion County, it is instructive that the court made no such factual finding. And that is not surprising. The public record shows that the Honorable Julia Carson, an African-American, has been elected as a Representative to the United States Congress four times from a district that includes most of Marion County; Karen Freeman-Wilson, an African-American candidate for the 2000 state Attorney General's race, outpolled her white challenger in Marion County; Frank Anderson, an African-American candidate for Marion County Sheriff in 2002, outpolled his white challenger with 66.9% of the vote; and in Pike Township, where African-American voters are in the minority, 3 out of 4 township officials elected in 2002 were African-American.
Although the lack of proportionality may suggest vote dilution, a history of electoral success cuts the other way.
If the lesson of Gingles is that society's racial and ethnic cleavages sometimes necessitate majority-minority districts to ensure equal political and electoral opportunity, that should not obscure the fact that there are communities in which minority citizens are able to form coalitions with voters from other racial and ethnic groups, having no need to be a majority within a single district in order to elect candidates of their choice.
Johnson, 512 U.S. at 1020, 114 S.Ct. 2647. At least in recent years, the African-American community in Marion County has consistently demonstrated its political sophistication in electing candidates of their choice on an equal basis with other voters, despite being a minority of the population in the overall community. That is not to suggest that racism in Marion County politics necessarily has been eliminated, but it does support the view that the necessity of intentionally creating a particular and discreet number of majori*467ty-minority districts may no longer be required.
In this case Councilor Borst simply has not demonstrated that this Court's redistricting plan dilutes African-American voting strength and thus may violate section 2 of the Voting Rights Act.4 The majority has denied his petition for rehearing and with the foregoing additional understanding, I concur.
. Although each element in this three-part test must be proven, standing alone they will not suffice to establish a Section 2 violation. Rather, "[tlhe plaintiff must also demonstrate that the totality of the circumstances supports a finding that the voting scheme is dilutive." Bossier Parish Sch. Bd., 520 U.S. at 480, 117 S.Ct. 1491.
. Defining "proportionality" as the link between "the number of majority-minority vot*466ing districts to minority members' share of the relevant population." Johnson, 512 U.S. at 1014, n. 11, 114 S.Ct. 2647.
. I find it also instructive that no African-American voter, or any organization historically involved in advancing the interests of the African-American community, has sought Amicus status in this case to embrace the Councilor Borst position.