concurring in part and dissenting in part.
I concur fully with the judgment of this court that the changes to the rules of the State Democratic Executive Committee (SDEC) must be precleared by the United *1098States Justice Department pursuant to section 5 of the Voting Rights Act. I also agree with the court’s judgment with respect to the various county plans. I do not agree, however, that our remedial powers are as limited as suggested by the majority opinion and, therefore, must respectfully dissent from that portion of the judgment.
The majority concludes that its only recourse is to enforce the Democratic Party’s 1983 plan of electing and choosing members to the SDEC. Neither the law nor the facts of this case require such a resolution. The state Democratic Party made three changes to the executive committee election and selection process: 1) the “loser eligibility” rule for qualifying for an appointed seat; 2) the manner in which the number of appointed seats is calculated; and 3) the provision placing the appointive powers in the hands of the elected Afro-American members of the SDEC. As more thoroughly discussed in the majority opinion, the first two changes directly affect voting and could have a potential for discrimination. Thus, it is appropriate that these two changes not be enforced unless preclearance is obtained. For the time required for the Democratic Party to achieve preclearance of a plan, I would agree with the majority opinion that the 1983 plan for appointing black seats at twenty-three should be followed and effect should not be given to the loser-eligibility rule.
I do not believe, however, that the portion of the 1983 plan placing complete power over appointing Afro-American seats with the Chairman of the Alabama Democratic Conference (ADC) must be enforced. Both parties agree that the ADC represents only a portion of the Afro-American members of the Democratic Party. The Democratic Party has attempted to change this patently unfair and undemocratic practice by placing the appointive power in a body of Afro-Americans elected by their representative group. As implicitly recognized by the majority, this change from a selection process that ignores a significant portion of the Afro-American Democratic voters to a process which democratically elects those Afro-American members who will make the appointments has no plausible potential to discriminate against Afro-American voters. I, therefore, would permit the newly elected black members of the SDEC to select the twenty-three persons to fill the additional seats as part of an interim remedy until a plan is proposed which meets the requirements of Section 5 of the Voting Rights Act.
This is not to say that the entire election and selection plan does not have to be precleared. Obviously, it represents a comprehensive program that should not be submitted piecemeal to the Justice Department. As a three judge panel, however, we have the authority to fashion a remedy “appropriate” to the situation presented to us. See NAACP v. Hampton County Election Comm’n, 470 U.S. 166, 183 n. 36, 105 S.Ct. 1128, 1138 n. 36, 84 L.Ed.2d 124 (1985); Perkins v. Matthews, 400 U.S. 379, 396-97, 91 S.Ct. 431, 440-41, 27 L.Ed.2d 476 (1971). Factors relevant in fashioning an appropriate remedy include “the nature of the changes complained of, and whether it was reasonably clear at the time of the election that the changes were covered by § 5.” Perkins, 400 U.S. at 396, 91 S.Ct. at 441. The latter factor is important insofar as it indicates a “deliberate defiance of the [Voting Rights] Act.” Allen v. State Board of Elections, 393 U.S. 544, 572, 89 S.Ct. 817, 835, 22 L.Ed.2d 1 (1969). The Democratic Party has made a substantial effort in this case to comply with the pre-clearance requirements of the Voting Rights Act. It first submitted proposed changes to the Attorney General in 1989. In response to objections made by the Attorney General to that plan, the Democratic Party drafted the plan before this Court. It was submitted to the Attorney General in March, 1990, with a request for expedited consideration pursuant to 28 C.F.R. § 51.34(a). Even without expedited consideration, the March, 1990 filing was long enough before the June, 1990 election to allow the Attorney General the full sixty days usually required to evaluate a submission. 28 C.F.R. § 51.9. The Attorney General, however, has requested additional time for considering the Democratic Party’s submission and has yet to make a final *1099determination on this plan. Under these circumstances, and given that the change concerning appointment power has no potential to discriminate, I believe it is appropriate to give effect as an interim plan to the change sought by the Democratic Party with respect to the appointment power.
Although not strictly applicable in this case, the Voting Rights Act cases addressing reapportionment plans also are instructive in determining what might be an “appropriate” remedy. In these cases, voting districts had to be redrawn to account for new congressional seats added or removed after the national census. Because the old plans were in violation of the constitutional principle of one man one vote, they could not be enforced. See Upham v. Seamon, 456 U.S. 37, 38, 102 S.Ct. 1518, 1519-20, 71 L.Ed.2d 725 (1982). Often, however, election dates approached before new plans could be precleared by the Attorney General. Federal three judge panels, therefore, routinely had to draft interim reapportionment plans that would allow the elections to go forward. The Supreme Court cautioned these three judge district court panels to be mindful of the political choices of the entities they were reviewing while being sure to adopt interim plans that honored the Constitution. Upham v. Seamon, 456 U.S. at 43, 102 S.Ct. at 1522. Thus, the standard under which the district courts operated in forming interim plans was to defer to the political judgments of the legislating body where such deference would not result in a Constitutional or Voting Rights Act violation. Upham v. Seamon, 456 U.S. at 41, 102 S.Ct. at 1521, quoting White v. Weiser, 412 U.S. 783, 794-95, 93 S.Ct. 2348, 2354-55, 37 L.Ed.2d 335 (1973); see Burton v. Hobbie, 543 F.Supp. 235 (M.D.Ala.1982) (three judge court) (Johnson, Hobbs, and Thompson, JJ.).
I see no reason for not applying the same rationale to the changes before us. The 1983 plan is itself discriminatory against a significant portion of the Afro-American Democratic voters. See Burton v. Hobbie, 543 F.Supp. at 243-43 (Johnson, J., concurring) (refusing to accept an interim remedy which itself was discriminatory). The choice to shift the appointive power from the exclusive control of one Afro-American group to a more democratically elected Afro-American group represents the resolution of a political battle within the Alabama Democratic Party. That choice has no potential for discrimination, and thus no potential for violating the Constitution and Voting Rights Act. Faced with a choice between the two plans, I think it not only “appropriate” but also wise to defer to the Party’s political choice and allow the Afro-American elected members of the SDEC to appoint additional members. A refusal to allow this change adopted by the Democratic Party could well result in a continuation for several years of the unfair practice, which the Party sought to correct, of having one Afro-American group impose its choices irrespective of the wishes of other Afro-American groups.