dissenting.
I respectfully dissent. In my view the General Assembly had a sound legal basis for concluding that the configuration of North Carolina House District 18 in the 2003 House Plan was necessary to comply with Section 2 of the Voting Rights Act. Accordingly, for the reasons discussed herein, I would affirm the decision of the three-judge panel upholding the division of Pender County.
Article II, Section 3, Clause 3 and Section 5, Clause 3 of the North Carolina Constitution, collectively referred to as the “Whole County Provisions” (the WCP), provide that “[n]o county shall be divided” in the formation of senate and representative districts. In Stephenson I and Stephenson II, this Court established legal principles, including application of the Whole County Provisions, under which the legislature’s redistricting authority is exercised; however, the Court deferred to the Supremacy Clauses of both the State and Federal Constitutions for purposes of applying the WCP. Stephenson v. Bartlett, 355 N.C. 354, 562 S.E.2d 377 (2002) (Stephenson I); Stephenson v. Bartlett, 357 N.C. 301, 582 S.E.2d 247. (2003) (Stephenson II). This Court explained the supremacy of federal law as follows:
We recognize that, like the application or exercise of most constitutional rights, the right of the people of this State to legislative districts which do not divide counties is not absolute. In reality, an inflexible application of the WCP is no longer attainable because of the operation of the provisions of the VRA and the federal “one-person, one-vote” standard, as incorporated within the State Constitution. This does not mean, however, that the WCP is rendered a legal nullity if its beneficial purposes can be preserved consistent with federal law and reconciled with other state constitutional guarantees.
Stephenson I, 355 N.C. at 371, 562 S.E.2d at 389 (internal citations omitted). Throughout its opinion, this Court repeatedly noted that the WCP must yield to provisions of the Voting Rights Act prohibiting the dilution of minority voting strength. “[T]he State retains significant discretion when formulating legislative districts, so long as the *512‘effect’ of districts created pursuant to a ‘whole-county’ criterion or other constitutional requirement does not dilute minority voting strength in violation of federal law.” Id. at 370, 562 S.E.2d at 389. “Although no federal law has preempted this Court’s authority to interpret the WCP as it applies statewide, we acknowledge that complete compliance with federal law is the first priority before enforcing the WCP.” Id. at 374 n.4, 562 S.E.2d at 391 n.4.
Finally, this Court established nine criteria to be followed by the General Assembly in drawing legislative districts. The first criterion expressly requires drawing districts that comply with the provisions of the Voting Rights Act:
[T]o ensure full compliance with federal law, legislative districts required by the VRA shall be formed prior to creation of non-VRA districts. ... In the formation of VRA districts within the revised redistricting plans on remand, we likewise direct the trial court to ensure that VRA districts are formed consistent with federal law and in a manner having no retrogressive effect upon minority voters. To the maximum extent practicable, such VRA districts shall also comply with the legal requirements of the WCP.'
Stephenson II, 357 N.C. at 305, 582 S.E.2d at 250 (alterations in original) (emphasis omitted) (citing Stephenson I, 355 N.C. at 383, 562 S.E.2d at 396-97).
Section 2 of the Voting Rights Act forbids any “voting qualification or prerequisite to voting or standard, practice or procedure . . . which results in a denial or abridgment of the right of any citizen of the United States to vote on account of race or color.” 42 U.S.C. § 1973(a) (2000). A State is in violation of Section 2
if, based on the totality of circumstances, 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.
Id. § 1973(b) (2000).
In construing the totality of circumstances test, the United States Supreme Court in Gingles relied upon the Senate Report accompany*513ing the 1982 VRA Amendments, stating, “the Committee determined that the question whether the political processes are ‘equally open’ depends upon a searching practical evaluation of the past and present reality, and on a functional view of the political process.” Thornburg v. Gingles, 478 U.S. 30, 45, 92 L. Ed. 2d 25, 43 (1986) (quoting S. Rep. No. 97-417, at 30 (1982) (citations, internal quotation marks, and footnotes omitted)). In providing structure to the totality of circumstances inquiry, the Court in Gingles enumerated three threshold factors for establishing vote dilution as follows:
First, the minority group must be able to demonstrate that it is sufficiently large and geographically compact to constitute a majority in a single-member district. . . . Second, the minority group must be able to show that it is politically cohesive. . . . Third, the minority must be able to demonstrate that the white majority votes sufficiently as a bloc to enable it... to defeat the minority’s preferred candidate.
Id. at 50-51, 92 L. Ed. 2d at 46-47 (internal citations and footnote omitted).
With respect to whether a minority group is sufficiently large to “constitute a majority,” the Court in Gingles disclaimed mechanical application of the first precondition by stating:
We have no occasion to consider whether § 2 permits, and if it does, what standards should pertain to, a claim brought by a minority group, that is not sufficiently large and compact to constitute a majority in a single-member district, alleging that the use of a multimember district impairs its ability to influence elections.
Id. at 46 n.12, 92 L. Ed. 2d at 44 n.12. Thus, the Court declined to address whether the first threshold requirement could extend to a group that constitutes a sufficiently large minority to elect the candidate of its choice with the assistance of limited, yet predictable, crossover votes from the white majority.
In her concurring opinion, Justice O’Connor rejected the distinction between a Section 2 claim in which the minority constitutes a numerical majority in a district and a Section 2 claim when the minority group, though not a majority in the proposed district, has the ability to elect its candidate of choice with the assistance of limited crossover support from white voters, stating:
*514I note, however, the artificiality of the Court’s distinction between claims that a minority group’s “ability to elect the representatives of [its] choice” has been impaired and claims that “its ability to influence elections” has been impaired. Ante, at 46-47, n.12. . . . [T]he Court recognizes that when the candidates preferred by a minority group are elected in a multimember district, the minority group has elected those candidates, even if white support was indispensable to these victories. On the same reasoning, if a minority group that is not large enough to constitute a voting majority in a single-member district can show that white support would probably be forthcoming in some such district to an extent that would enable the election of the candidates its members prefer, that minority group would appear to have demonstrated that, at least under this measure of its voting strength, it would be able to elect some candidates of its choice.
Id. at 90 n.1, 92 L. Ed. 2d at 72 n.1 (O’Connor, J., Burger, C.J., Powell & Rehnquist, JJ., concurring in the judgment).
In subsequent cases, the United States Supreme Court has not endorsed a bright line requirement that a minority group seeking Section 2 VRA relief constitute a numerical majority. In fact, despite having the opportunity to do so, the Court has repeatedly declined to close the door on the issue. See Johnson v. De Grandy, 512 U.S. 997, 1008-09, 129 L. Ed. 2d 775, 789-90 (1994) (in which the Court declined to hold that plaintiffs could not make a VRA claim based on influence districts); Voinovich v. Quilter, 507 U.S. 146, 154, 122 L. Ed. 2d 500, 511 (1993) (in which the Court declined to address whether a reapportionment commission’s failure to create influence districts resulted in a Section 2 violation); Growe v. Emison, 507 U.S. 25, 41 & n.5, 122 L. Ed. 2d 388, 404 & n.5 (1993) (in which the Court declined to decide if plaintiffs could argue influence dilution in addition to vote dilution when the Gingles test was not satisfied).
Moreover, the Supreme Court has continued to caution lower courts against applying Gingles to impose a rigid numerical majority requirement. In Voinovich, the Supreme Court explained that the Gingles factors “cannot be applied mechanically and without regard to the nature of the claim.” 507 U.S. at 158, 122 L. Ed. 2d at 514. Justice O’Connor noted that the first Gingles requirement would have to be “modified or eliminated” when the Court considered cases in which black voters are denied “the possibility of being a sufficiently *515large minority to elect their candidate of choice with the assistance of cross-over votes from the white majority.” Id.
Recently, in League of United Latin American Citizens v. Perry, -U.S. -, 165 L. Ed. 2d 609 (2006), the Supreme Court was confronted with the issue presented in this case. In the plurality opinion of Justice Kennedy, Part IV addressed the first Gingles threshold condition by assuming, as the Court had done in the past, that it is possible for a minority group that makes up less than fifty percent of the district’s population to state a claim under Section 2. Id. at -, 165 L. Ed. 2d at 647 (plurality). Justice Kennedy concluded that under this assumption, the racial minority “must show they constitute a sufficiently large minority to elect their candidate of choice with the assistance of cross-over votes.” Id. at -, 165 L. Ed. 2d at 647 (plurality) (quoting Voinovich, 507 U.S. at 158, 122 L. Ed. 2d at 515 (emphasis and internal quotation marks omitted)). Although the Court concluded that no Section 2 violation occurred, the Court did so based on its determination that the evidence did not show that black voters could elect a candidate of their choice, even with crossover voting.
Justice Souter, in a separate opinion joined by Justice Ginsberg, dissented from Part IV, in which the plurality upheld the trial court’s ruling that no Section 2 violation of the VRA occurred. Id. at -, 165 L. Ed. 2d at 672 (Souter & Ginsburg, JJ., concurring in Parts II-A, II-D, III, and dissenting from Part IV). Justice Souter concluded that “[although both the plurality today and our own prior cases have sidestepped the question whether a statutory dilution claim can prevail without the possibility of a district percentage of minority voters above 50%, the day has come to answer it.” Id. at -, 165 L. Ed. 2d at 672-73 (Souter and Ginsburg, JJ., dissenting) (internal citations omitted). Justice Souter would have returned the Section 2 VRA claim to the district courffor reconsideration “untethered by the 50% barrier.” Id. at -, 165 L. Ed. 2d at 677 (Souter & Ginsburg, JJ., dissenting). Justice Stevens, in his dissenting opinion, stated, “I agree with Justice Souter that the ‘50% rule,’ which finds no support in the text, history, or purposes of § 2, is not a proper part of the statutory vote dilution inquiry.” Id. at - n.16, 165 L. Ed. 2d at 670 n.16 (Stevens, J., dissenting).
Although the Supreme Court has repeatedly left open the issue, several lower federal courts, as noted by the majority, have ruled that a numerical majority is necessary to establish a Section 2 claim. See, *516e.g., Hall v. Virginia, 385 F.3d 421 (4th Cir. 2004), cert. denied, 544 U.S. 961, 161 L. Ed. 2d 602 (2005) and Rodriguez v. Pataki, 308 F. Supp. 2d 346 (S.D.N.Y.) (per curiam), aff’d mem., 543 U.S. 997, 160 L. Ed. 2d 454 (2004).
In Hall, the plaintiffs contended that a redistricting plan which reduced the black voting age population of a district from 37.8% to 32.3% violated Section 2 of the VRA because, under the newly drawn Fourth Congressional District, blacks were too small in number to form the same winning coalition with crossover white voters that existed before enactment of the plan. By requiring a literal numerical majority, the Hall court did not determine whether, prior to the new redistricting plans, blacks in the district had the ability to elect a candidate of choice with the support of limited crossover votes. Stated differently, the court did not determine whether a 37.8% black voting age population constituted a sufficiently large minority presence in the district to allow minority voters the ability to elect their candidate of choice with a small, but predictable, number of crossover votes, and consequently, whether reducing the minority presence in the district to 32.3% would cause blacks to lose the ability to elect a candidate by making successful coalition voting impossible.
In Rodriguez v. Pataki, the court opined that “[e]ven if the first Gingles factor were applied flexibly to accommodate crossover or ‘ability to elect’ districts, the plaintiffs would have to prove that their proposed district would provide blacks with the ability to elect candidates of choice.” 308 F. Supp. 2d at 403 (citation omitted). Although the Rodriguez court stated its preference for a bright-line rule, it denied the plaintiffs’ ability to elect claim not because the black population in the district was less than fifty percent, but because the plaintiffs did not present sufficient evidence that blacks would have the ability to elect candidates of their choice. Id. at 403.
North Carolina courts are not bound by decisions of the Fourth Circuit or any other lower federal court, but only by a decision of the United States Supreme Court. See State v. McDowell, 310 N.C. 61, 74, 310 S.E.2d 301, 310 (1984), cert. denied, 476 U.S. 1164, 90 L. Ed. 2d 732 (1986).
In North Carolina’s legislative elections, a clear pattern exists which demonstrates the level of minority presence necessary to give minority voters an opportunity to elect their preferred candidates. Prior voting patterns reveal that house districts in North Carolina having total black population percentages of 41.54% and above and *517black voting age population percentages of 38.37% and above provide an effective opportunity to elect black candidates. The record shows that the General Assembly considered the most relevant indicator of black voting strength to be black Democratic voter registration; districts where such registration exceeds fifty percent consistently elect black representatives.
In this case, the minority concentration in House District 18 in the 2003 Plan consisted of a total black population of 42.89%, a black voting age population of 39.36%, and a black Democratic voter registration of 53.72%. In House District 18, election results have already established that minority voters have the potential to elect a representative of choice.3 The 2004 election results, held under the 2003 plan, demonstrated that District 18 as currently drawn is an effective minority voting district in which the minority voters’ preferred candidate was re-elected. Unquestionably, a black candidate can be elected in House District 18, notwithstanding that the number of minority voters in the district is less than fifty percent.
Altering the district to further reduce the minority population would result in dilution of a distinctive minority vote. In Hall, the court found that a minority group’s voting strength is measured in terms of the group’s “ability to elect candidates to public office.” 385 F.3d at 427. However, minority voters who do not form a numerical majority in a district but who can elect their candidate of choice with a limited number of crossover votes do, indeed, have the “ability to elect.” Taking this predictable measure away from minorities leaves them with “less opportunity than other members of the electorate ... to elect representatives of their choice.” 42 U.S.C. § 1973(b).
The three-judge panel reviewed the existing law and correctly declined to follow a rigid test requiring an absolute numerical majority of minority voters in a single-member district. The panel instead took a functional approach and found that the proper factual inquiry in analyzing a “coalition” or an “ability to elect district” is not whether black voters make up the numerical majority of voters in a single-member district, but whether “the political realities of the district, such as the political affiliation and number of black registered voters *518when combined with other relevant factors” operate to allow black voters to elect their candidate of choice. Such an inquiry must focus on the potential of black voters to elect their preferred candidates, not merely on raw numbers alone.
Recent United States Supreme Court opinions suggest that the application of a numerical majority requirement without respect to attendant political circumstances is not the appropriate test of the merits of a Section 2 Voting Rights Act claim. Nowhere in the language of Section 2 is there a requirement that a district must include a population of more than fifty percent of minority voters in order for a petitioner to state a claim for relief under Section 2. Rather, the “totality of circumstances” language mandates a flexible standard based on political realities of the district and supports creation of a district in which the minority group has the ability to elect a representative of choice with crossover support from voters of other racial or ethnic groups.
Under this Court’s prior rulings, the General Assembly must meet the requirements of federal law before adhering to the Whole County Provisions in Article II, Section 3, Clause 3 and Section 5, Clause 3 of the North Carolina Constitution. See Stephenson I, 355 N.C. at 381-82, 562 S.E.2d at 396-97. In drawing House District 18 in Pender and New Hanover Counties, the General Assembly sought to maintain an effective minority district to comply with Section 2 of the VRA and to comply with the WCP to the maximum extent possible. Following the principles this Court established in the Stephenson v. Bartlett cases, the three-judge panel properly concluded that no county, including Pender County, is guaranteed protection from being divided based on the WCP of our State Constitution when the division of counties is necessary to comply with the Voting Rights Act.
House District 18, as presently drawn, contains a black voting age population that is “sufficiently large and geographically compact” to elect its candidate of choice, Gingles, 478 U.S. at 50, 92 L. Ed. 2d at 46, and the General Assembly drew House District 18 to comply with the North Carolina Constitution to the maximum extent possible.
For the foregoing reasons, I would vote to affirm the decision of the three-judge panel.
Justice TIMMONS-GOODSON joins in this dissenting opinion.. District 18 can be described as an “ability to elect” or “crossover” district. An “ability to elect district” is a district where members of the minority group are not a majority of the voting population, but have the ability to elect representatives of their choice with support from a limited, but reliable, white crossover vote. Rodriguez v. Pataki, 308 F. Supp. 2d at 376 (citation omitted).