concurring:
I concur with the result of the majority opinion. However, since my examination of the case differs somewhat analytically, I write separately.
This court considered several questions: May a State enact a race-based reapportionment plan? If so, under what circumstances are race-conscious measures allowed? Finally, how do these requirements apply to Act 42?
I
LAW
[I]n view of the constitution, in the eye of the law, there is no superior, dominant, ruling class of citizens. There is no caste *1212here. Our constitution is color blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful. The law regards man as man, and takes no account of his surroundings or of his color when his civil rights as guaranteed by the supreme law of the land are involved ...
The destinies of the two races, in this country, are indissolubly linked together, and the interests of both require that the common government of all shall not permit the seeds of race hate to be planted under the sanction of law ...
The sure guaranty of the peace and security of each race is the clear, distinct, unconditional recognition by our governments, national and state, of every right that inheres in civil freedom, and of the equality before the law of all citizens of the United States, without regard to race.
Plessy v. Ferguson, 163 U.S. 537, 558, 16 S.Ct. 1138, 1146, 41 L.Ed. 256 (1896) (Harlan, dissenting).
A
CONSIDERATION OF RACE IN REDISTRICTING LEGISLATION
Despite the legislation enacted to promote racial equality, many states remained recalcitrant to the Civil War amendments’ mandates. Among the methods used by the states to evade the fifteenth amendment were poll taxes, literacy tests, and gerrymandered 1 districts. Responding to this perversion, Congress enacted the Voting Rights Act of 1965 “as a dramatic and severe response to the situation.” Shaw v. Reno, 508 U.S. -, —, 113 S.Ct. 2816, 2823, 125 L.Ed.2d 511 (1993). Amended in 1982, section 2 of the Voting Rights Act prohibits the dilution of a minority group’s voting strength while section 5 mandates pre-clearance of newly created districts for those states that employed disenfranchising schemes in the past. The purpose of the voting rights legislation is to prohibit State efforts to abridge or deny minority representation. To this end, when pre-clearance is sought under section 5, the Department of Justice usually seeks maximization of minority voting strength to promote minority representation.2 Since legislators are thus obligated to consider racial factors when redistricting, a delicate balance arises between promotion of minority suffrage and the color-blind strictures of equal protection.
B
EQUAL PROTECTION
“No State shall ... deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const., Arndt. 14 § 1. Interpreting this clause nearly a century ago, the Supreme Court held in Plessy v. Ferguson, 163 U.S. 537, 558, 16 S.Ct. 1138, 1146, 41 L.Ed. 256 (1896) that the separate but equal doctrine comported fully with the Fourteenth Amendment. Id. at 548, 16 S.Ct. at 1142. “The majority [in Plessy ] held that persons could be legally classified and treated in such a manner because of their race when the classifying law was a reasonable exercise of the police power. This meant that such laws must be reasonable, good faith attempts to promote the public good and not be designed to oppress a particular class.” John E. Nowak, Ronald D. Rotunda, Constitutional Law, 618 (1991). As the Court itself stated:
[W]e think the enforced separation of the races, as applied to the internal commerce of the state, neither abridges the privileges *1213or immunities of the colored man, deprives him of his property without due process of law, nor denies him the equal protection of the laws, within the meaning of the fourteenth amendment.
Plessy, 163 U.S. at 548, 16 S.Ct. at 1142.
Fifty-eight years later, Plessy’s flawed concept .of equal protection was rejected. Although Brown v. Board of Education of Topeka, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954) did not expressly overrule Plessy outside the realm of education, that case heralded the demise of separate but equal treatment of the races by the states. Over the past four decades, the Supreme Court has confronted the consideration of race in State and federal legislation and has fashioned specific guidelines for testing the con-. stitutionality of such considerations.
The central purpose of the Equal Protection Clause “is to prevent the States from purposefully discriminating between individuals on the basis of race.” Shaw v. Reno, 508 U.S. at-, 113 S.Ct. at 2824. “Classifications based on race carry a danger of stigmatic harm. Unless they are strictly reserved for remedial settings, they may in fact promote notions of racial inferiority and lead to politics of racial hostility.” City of Richmond v. J.A. Croson Company, 488 U.S. 469, 493, 109 S.Ct. 706, 722, 102 L.Ed.2d 854 (1989). Accordingly, the Court has “held that the Fourteenth Amendment requires state legislation that expressly distinguishes among citizens because of their race to be narrowly tailored to further a compelling governmental interest.” Shaw, 508 U.S. at -, 113 S.Ct. at 2825. This test is known as strict or heightened scrutiny and is justified because:
[ajbsent searching judicial inquiry into the justification for such race-based measures, there is simply no way of determining what classifications are ‘benign’ or ‘remedial’ and what classifications are in .fact motivated by illegitimate notions of racial inferiority or simple racial politics. Indeed, the purpose of strict scrutiny is to “smoke out” illegitimate uses of race by assuring that the legislative body is pursuing a goal important enough to warrant use of a highly suspect tool. The test also ensures that the means chosen “fit” this compelling goal so closely that there is little or no possibility that the motive for the classification was illegitimate racial prejudice or stereotype.
Croson, 488 U.S. at 493, 109 S.Ct. at 721. These equal protection principles apply to statutes that “although race-neutral, are, on their face, ‘unexplainable on grounds other than race,’ ” and classifications that are ostensibly neutral but are an obvious pretext for racial discrimination. Shaw, 508 U.S. at -, 113 S.Ct. at 2825 (citing Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 266, 97 S.Ct. 555, 564, 50 L.Ed.2d 450 (1977); Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 (1886)).
Under current equal protection doctrine, “race-conscious state decisionmaking is [not] impermissible in all circumstances.” Shaw, 508 U.S. at-, 113 S.Ct. at 2824 (emphasis in original). If State legislation contains explicit racial classifications, if it is inexplicable on grounds .other than race, or if it contains race-neutral classifications that serve as mere pretext for racial discrimination, then courts are bound to apply the strict scrutiny regime. 'The classification must be justiñed by a compelling state interest, and then be narrowly tailored to fit that interest in order to survive constitutional scrutiny.
C
RACIAL GERRYMANDERING UNDER EQUAL PROTECTION
Redistricting legislation is almost always race-neutral on its face. Before Shaw, the Supreme Court had
held that only two types of state voting practices could give rise to a constitutional claim. The first involves direct and .outright deprivation of the right to vote, for example by means of a poll tax or literacy test ... The second type ■ of unconstitutional practice is that which affects the political strength of various groups in violation of the Equal Protection Clause. As for this latter category, [the Court] insisted that members of the political or racial group demonstrate that the challenged action have the intent and effect of unduly *1214diminishing their influence on the political process.
Shaw, 508 U.S. at-, 113 S.Ct. at 2834 (White, J. dissenting). The latter category, known as “dilution,” arises when voters are not deprived of the right to vote, but, through methods such as “cracking,” “stacking,” and “packing,” certain groups are denied an effective vote. See, United Jewish Organizations of Williamsburgh, Inc. v. Carey, 430 U.S. 144, 97 S.Ct. 996, 51 L.Ed.2d 229 (1977) (“UJO”); Voinovich v. Quitter, 507 U.S.-, 113 S.Ct. 1149, 122 L.Ed.2d 500 (1993). Acknowledging UJO and its progeny, Shaw went further, holding that “district lines obviously drawn for the purpose of separating voters by race require careful scrutiny under the Equal Protection Clause regardless of the motivations underlying their adoption.” Id. 508 U.S. at --, 113 S.Ct. at 2826.
Supporting this holding is the now famous case of Gomillion v. Lightfoot, 364 U.S. 339, 81 S.Ct. 125, 5 L.Ed.2d 110 (1960) in which the Alabama legislature redefined the boundaries of Tuskegee, essentially excluding all but a few black citizens from the district. The result was “a strangely irregular twenty-eight-sided figure.” Id., at 341, 81 S.Ct. at 127. The Court found the scheme repugnant to the Fifteenth Amendment, holding:
... Act 140 was not an ordinary geographic redistricting measure even within familiar abuses of gerrymandering. If these allegations upon a trial remain uncontradicted or unqualified, the conclusion would be irresistible, tantamount for all practical purposes to a mathematical demonstration, that the legislation is solely concerned with segregating white and colored voters ... • It is difficult to appreciate what stands in the way of adjudging a statute having this inevitable effect invalid in light of the principles by which this Court must judge, and uniformly has judged, statutes that, howsoever speciously defined, obviously discriminate against colored citizens.
Id. at 341, 342, 81 S.Ct. at 127, 127. Therefore, racial gerrymandering, or legislation that manipulates district lines to achieve a predetermined racial result is subject to strict scrutiny.
D
PROVING A RACIAL GERRYMANDER
“Proof of racially discriminatory intent or purpose is required to show a violation of the Equal Protection Clause.” Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 265, 97 S.Ct. 555, 563. Such invidious discriminatory intent or purpose need hot be the legislature’s dominant or primary consideration. Rather, proof that invidious discriminatory purpose was a motivating factor in the legislation will suffice. Id. Because improper racial classifications rarely appear on the face of legislation, the Supreme Court has identified subjects of proper inquiry in determining whether racially discriminatory intent existed. For example, legislation that “bears more heavily on one race than another” may indicate discrimination, Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976), as will historical patterns, Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 267, 97 S.Ct. 555, 564, 50 L.Ed.2d 450 (1977), legislative history, Id., irrationality pointing to nothing but racial classification, Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 (1886), and direct evidence adduced, as in this case, before a three judge panel. Shaw stands for the proposition that bizarre reapportionment schemes such as that challenged in North Carolina and Act 42 fall into the Yick Wo category and may, in and of themselves, be evidence of invidious discrimination.
Of course, these indicators may be rebutted by evidence of wholly legitimate purposes. “The district lines may be drawn, for example, to provide for compact districts of contiguous territory, or to maintain the integrity of political subdivisions.” Shaw, 508 U.S. at-, 113 S.Ct. at 2826. When such legitimate purposes are disclosed and accepted by the court, heightened scrutiny is inappropriate. However, if the grounds asserted are an obvious pretext for racial discrimination or are simply post hoc arguments contrived to shield the segregation from judicial inquiry, the court must pursue the strict scrutiny regime.
*1215E
STRICT SCRUTINY: WHEN IS A STATE INTEREST COMPELLING AND WHAT DETERMINES NARROW TAILORING?
1
COMPELLING STATE INTEREST
New interests will be deemed “compelling” enough to justify State classifications according to race. The Supreme Court has given little indication as to what satisfies this portion of the strict scrutiny regime. However, the Court has accepted the correction of past governmental and private sector discrimination, Richmond v. J.A. Croson, 488 U.S. 469, 109 S.Ct. 706, 102 L.Ed.2d 854 (1989), ethnic and racial diversification in the faculty and student bodies of state operated universities and professional schools, see Regents of the University of California v. Bakke, 438 U.S. 265, 98 S.Ct. 2733, 57 L.Ed.2d 750 (1978), and has suggested that States have a “very strong interest in complying with federal antidiscrimination laws that are constitutionally valid as interpreted and applied.” Shaw, 508 U.S. at--, 113 S.Ct. at 2830. Despite the language in Bakke, the Court seems unwilling to allow any race-based measures outside a remedial setting3. Croson, 488 U.S. at 493, 109 S.Ct. at 721.
Although the States and their subdivisions may take action to remedy discrimination, “they must identify that discrimination, public or private, with some specificity before they may use race-conscious relief.” Croson, 488 U.S. at 503, 109 S.Ct. at 727. That identification occurs when “judicial, legislative, or administrative findings of constitutional or statutory violations” are made. Bakke, 438 U.S. at 308-309, 98 S.Ct. at 2757-2758. Otherwise, “the dream of a Nation of equal citizens in a society where race is irrelevant to personal opportunity and achievement would be lost in a mosaic of shifting preferences based on inherently unmeasurable claims of past wrongs.” Croson, 488 U.S. at 504, 109 S.Ct. at 728.
2
NARROWLY TAILORED
Once an interest has been properly identified and accepted as compelling, the court must examine the classification in order to determine whether it is narrowly tailored' to “fit” the interest involved. In deciding whether race-conscious remedies are appropriate, the court may consider several factors. Among these are the necessity for the relief and the efficacy of alternative remedies; the flexibility and duration of the relief; and the impact of the relief on the rights of third parties. U.S. v. Paradise, 480 U.S. 149, 169, 107 S.Ct. 1053, 1066, 94 L.Ed.2d 203 (1987). However, the -relief must not go beyond what is reasonably necessary to accomplish the compelling interests. See, Shaw, 508 U.S. at-, 113 S.Ct. at 2831.
Therefore, this court must first determine how the districts were drawn, that is, whether they were drawn along race lines or not. To do so, this Court will examine the factors listed in section D ábove. If the State counters with a legitimate non-racial explanation for Act 42’s configuration, this Court will defer to the Legislature and refrain from .reviewing the merits of their decisions. However, if a motivating factor behind the reapportionment scheme was racial, strict scrutiny applies. Then we turn to whether the State had a compelling interest supporting racial discrimination. We will expect the Staté to provide specific evidence warranting its action and require a nexus between the action and the interest. Finally, we will examine whether Act 42 itself was narrowly tailored to fit the compelling interest in light of the factors discussed above.
II
ANALYSIS
A
ACT J/2 IS A RACIAL GERRYMANDER
This court found the evidence to indicate overwhelmingly that the intent of legislature *1216was to divide Louisiana’s congressional districts along, racial lines. The inferential evidence and the direct testimony of legislators for both the plaintiffs and the State allow no other conclusion. It is true that the State attempted to demonstrate non-racial. explanations for the highly irregular districts. In light of the testimony at both the trial and evidentiary hearing, these suggestions are but post hoc rationalizations.
The evidence before the Court demonstrated that the State Legislature acted as it did to gain pre-clearance and contrived the interest of correcting past discrimination for the purpose of the evidentiary hearing alone. Finally, as the majority notes above, most witnesses readily admitted to the availability of other plans less offensive to traditional districting patterns and or smaller racial discrepancies.
B
ACT 42 IS SUBJECT TO STRICT SCRUTINY
As our factual findings denote, Act 42 is a clear example of a racial gerrymander. Specifically, District 4 permits no conclusion other than classic segregation. Both the facial irregularity without plausible non-racial explanation4 and the explicit testimony of the legislators require this finding. Since redistricting along racial lines was a motivating factor, Act 42 is subject to strict scrutiny. This panel must now determine whether Act 42 was justified by a compelling governmental interest and that the means chosen by the State to effectuate its purpose were narrowly tailored to the achievement of that goal.
1
COMPELLING INTERESTS
The State advanced two main compelling interests behind the racial gerrymander. I discussed the findings required by Croson, Wygant, and Bakke when a State attempts to rely on prior discrimination as a foundation for remedial action. I see no reason why the same analysis should not apply when a state argues that compliance with federal anti-discrimination law mandated the jurisdiction’s race-based action. In order to rely on “remedying past discrimination” and “obeying the law,” a State must “demonstrate a strong basis in evidence for its conclusion that remedial action was necessary.” Croson, 488 U.S. at 510, 109 S.Ct. at 730. I examine each purported interest in turn to see if the State has met this burden.
a
Past or Present Discrimination
“Societal discrimination, without more, is too amorphous a basis for imposing a racially classified remedy.” Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 106 S.Ct. 1842, 90 L.Ed.2d 260 (1986). The Supreme Court has *1217firmly held that States must have “convincing evidence that remedial action is warranted.” Id. While there is no doubt that Louisiana has a sorry history of race relations, the defense did not provide evidence that the Legislature had before it the necessary factual predicate warranting a voluntary affirmative action redistrieting plan. In fact, the evidence supports the conclusion that the Legislature did not create Act 42 for the purpose of remedying past discrimination at all. Thus, if the State does intend to redistrict along racial lines with the goal of correcting past electoral discrimination, it must demonstrate what evidence warrants a finding of discrimination and how a specific plan relates to the elimination thereof.
b
Pre-clearance from the Department of Justice
The State legislators acted under the assumption that failure to create a second majority-minority district would result in the denial of pre-clearance by the .Department of Justice. This assumption seems to be founded upon the rejection of two non-congressional plans by the Department of Justice. However, both letters from the Civil Rights Division acknowledged that the" plans satisfied Section 5 pre-clearance requirements but rejected the plans because they could have been drawn more effectively. The Shaw opinion held that a state interest in complying with federal law is compelling only as constitutionally interpreted and applied. Additionally, by pointing out the distinction between what the law requires and what it permits, the Court stated .that even valid plans under the Voting Rights Act must comport with the Fourteenth Amendment. Because the Voting Rights requirements do not give covered jurisdictions carte blanche to engage in racial gerrymandering in the name of nonretrogression, the question for this court is whether the State of Louisiana had a strong basis in evidence for the belief that failure to create a second majority-minority district would violate Section 2 or 5 of the Voting Rights Act.
(1)
Section '2 of the Voting Rights Act
Section 2 of the Voting Rights Act of 1965, 42 U.S.C. § 1973 was enacted to accomplish the guarantees of the Fifteenth Amendment. Specifically, Section 2(a) 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.” This section therefore rejects State actions that, “interacting with social and historical conditions, impair the ability of a protected class to elect its candidate of choice on an equal basis with other voters.” Voinovich v. Quilter, 507 U.S.-, -, 113 S.Ct. 1149, 1155, 122 L.Ed.2d 500 (1993). If, under the totality of the circumstances, a State’s apportionment scheme has the effect of diminishing or abridging the voting strength of a protected class,' a Section 2 violation has occurred. Id. These “dilution” claims involve three threshold conditions.
First, they must show that the minority group ‘is sufficiently large and geographically compact to constitute a majority in a single member district.’ Second, they must prove that the minority group “‘is .politically cohesive.’. ” Third, the plaintiffs must establish ‘that the white majority votes sufficiently as a bloc to enable it ... usually to defeat the minority’s preferred candidate.’
Id. 507 U.S. at-, 113 S.Ct. at 1157 (quoting Gingles, 478 U.S. 30, 50-51, 106 S.Ct. 2752, 2766, 92 L.Ed.2d 25 (1986)). District 4 is evidence alone that the minority population large enough to constitute a majority in a single member district is not geographically compact. Without satisfaction of this initial Gingles condition, it is impossible to find that the State had a rational basis to believe that failure to create a second majority-minority district would violate Section 2. Reliance on possibly invalid applications of the Voting Rights Act by the Department of Justice cannot create a compelling state interest. If so, the Department of Justice and various States could sidestep the holdings of Croson, Gingles, and Shaw with ease.
*1218(2)
Section 5 of the Voting Bights Act
Similar findings are required under the “nonretrogression” analysis-of Section 5.- If the State had no basis to believe that one majority-minority district out of seven districts would- constitute retrogression, then ■reliance on Section 5 as a compelling interest is misplaced. “Under [the nonretrogression] principle, a proposed voting change cannot be pre-cleared if it,will lead to a retrogression in the position of racial minorities with respect to their effective exercise of the electoral franchise.” Shaw, 508 U.S. at —-, 113 S.Ct. at 2830 (quoting Beer v. U.S., 425 U.S. 130, 141, 96 S.Ct. 1357, 1364, 47 L.Ed.2d 629 (1976)). On its face, creating one district out of seven when the, previous ratio was one district out of eight is not retrogressive. Once again, the legislature appears to have founded their belief that one district out of seven is retrogressive completely on the Department of Justice’s previous unrelated rulings and the assumption that a gerrymandered second district was a requisite to preclearance. Without restating the points made above, I find such an assumption, without additional evidence, uneompelling.
In summary, I find post hoc reliance on past discrimination and warrantless assertions that the Voting Rights Act mandated a second district, unpersuasive. This is not to say that the State cannot rely on those interests to justify future affirmative action. Rather, I find that the basis forwarded by the State to claim these interests as compelling is so slim that they reek of the pretextual and the contrived.
2
NARROWLY TAILORED
Even if this panel, were to overlook the .dearth of Croson-type findings in this case, Act 42 cannot ,be termed narrowly tailored to fit the interests above. Since I concur in the majority opinion, I find no reason to reiterate their conclusions that Act 42 is not narrowly tailored to fit any compelling interest.
Ill
CONCLUSION
I am gravely disturbed by the history of racial discrimination in this country and State, but I believe that segregation of voters by race will achieve nothing but more discrimination, more separation, more animosity and would push Justice Harlan’s and Dr. King’s dream for this nation ever further into the future. One hundred and thirty years ago this nation endured a bloody civil war to ensure freedom and equality for all. That pledge, so dearly bought, remains elusive, but the concept that people defined only by race should receive separate representation in the legislative bodies of our government mocks the goals for which so many have suffered and died. Indeed, in' my opinion, it breathes life into the discredited doctrine announced by the majority in Plessy, forty years after the Supreme Court administered what should have been its mortal wound.
The districts created under Act 42 are the creatures of a racial gerrymander. The circumstantial and direct evidence supported no other conclusion. Therefore, strict scrutiny applies to Act 42. Under that regime, the justifications offered'by the State for its race-based measures were not accompanied by the requisite factual predicate. Additionally, the measures taken were not narrowly tailored to'fit the interests, however baseless, advánced by the State.
. Gerrymander is "[a] name given to the process of dividing state or other territory into the authorized civil or political divisions, but with such a geographical arrangement as to accomplish an ulterior or unlawful purpose, as for instance, to secure a majority for a given political parly in districts where the result would be otherwise if they were divided 'according to obvious natural lines.” Black’s Law Dictionary (5th Ed.).
. It is my opinion that Shaw v. Reno did not fully address the constitutional or statutory authority behind Department of Justice pre-clearance requirements that arguably go beyond the Voting Rights Act. Thus, the Supreme Court may veiy well hold the Department of Justice’s reliance on minimum "safe” percentages unconstitutional. I do not reach that question today but am troubled by the effect that these demands are having upon states seeking administrative pre-clearance rather than a declaratory judgment from the District Court of the District of Columbia.
. Compliance with federal law under the Voting Rights Act may be viewed as remedial and, therefore a state interest and perhaps compelling.
. The defense elicited testimony that District 4 actually represents certain commonalities of interest. Essentially, the State suggested that certain interests are predominantly shared by Blacks and therefore District 4 has a sufficient. non-racial justification. This is exactly the type State action that our color-blind Constitution prohibits. As the Shaw Court held:
"A reapportionment plan that includes in one district individuals who belong to the same race, but who are otherwise widely separated by geographical and political boundaries, and who may have little in common but the color of their skin, bears an uncomfortable resemblance to political apartheid. It reinforces the perception that members of the same racial group — regardless of their age, education, economic status, or the community in which they live — think alike, share the same political interests, and will prefer the same candidates at the polls. We have rejected such perceptions elsewhere as impermissible racial stereotypes. By perpetuating such notions, a racial gerrymander may exacerbate the very patterns of racial bloc voting that majority-minority districting is sometimes said to counteract.
The message that such districting sends to elected representatives is equally pernicious. When a district is obviously created solely to effectuate the perceived common interests of one racial group, elected officials are more likely to believe that their primary obligation is to represent only thé members of that group, rather than their constituency as a whole. This is altogether antithetical to our system of representative democracy.” Id. 508 U.S. at -, 113 S.Ct. at 2827.
I agree with what I perceive to be Justice O'Con-nor's views. If a multi-cultural State in which voters shared interests not according to the color of their skin but the content of their lives and experiences was the Legislature's goal, the tampering would have resulted in more evenly split districts. The races would then have to reconcile their differences with one another and move forward on common ground.