Dissenting;
Because the majority has erred in: (1) finding that plaintiff Andrew Johnson has standing in this lawsuit; (2) denying Corrine Brown’s motion to dismiss; (3) holding that the DeGrandy court’s injunction violates the Constitution; and (4) granting plaintiffs summary judgment on their claim that the Third District constitutes a racial gerrymander, I dissent.
Preliminarily, it is important to emphasize that today the majority has not held that the Third District is unconstitutional. Rather, the majority has found that the Third District, due to its appearance, cannot rationally be understood as anything other than an effort to segregate voters on account of race. In the alternative, the majority has held, solely on the basis of the DeGrandy opinion and without permitting the parties to engage in discovery, that race was the predominant factor motivating the three-judge federal court in drawing the Third District. Accordingly, this lawsuit will continue, and this court will have to determine whether the Third District is narrowly tailored to achieve a compelling interest. If it is, the Third District will pass constitutional muster.
1. Standing
Plaintiff Andrew Johnson does not reside in the Third District, and he has presented no specific evidence showing that he has personally been subjected to a racial classification. Thus, he lacks standing to bring this lawsuit. United States v. Hays, — U.S. -,-, 115 S.Ct. 2431, 2436, 132 L.Ed.2d 635 (1995). I fail to see how the majority’s reference to the Qualifications Clause has any relevance to this inquiry.
2. Motion to dismiss
I would grant Corrine Brown’s motion to dismiss this action for the reasons stated in *1561my dissenting opinion to this court’s unpublished order of August 31, 1994. See Appendix B to the majority’s opinion.
3. Constitutionality of the DeGrandy injunction
In deciding that the DeGrandy court’s injunction violates the Constitution, the majority has improperly gone out of its way to decide an issue that has not been presented to this court. The majority asserts that “[pjlaintiffs have challenged the DeGrandy court’s imposition of a permanent state redistricting plan20, and this panel may properly consider such a challenge.” In footnote twenty, the majority states:
While Plaintiffs did not expressly challenge the permanence of the DeGrandy plan in their complaint (see doc. 2), they have raised such a challenge in their motions for summary judgment (doc. 26 at 8; doc. 64 at 5), which should be treated as a motion to amend their complaint. This Court has substantial discretion in allowing the parties to amend their pleadings, and leave to amend is to “be freely given when justice so requires.” Fed.R.Civ.P. 15(a).
A reading of the complaint not only confirms the majority’s contention that the plaintiffs “did not expressly challenge the permanence of the DeGrandy plan,” but also reveals that the plaintiffs did not even implicitly raise this issue.1 Moreover, the majority’s citations to the plaintiffs’ motions for summary judgment simply do not support its contention that the plaintiffs have challenged the DeGrandy injunction. Page five of the plaintiffs’ supplemental motion for summary judgment (doc. 64) states in part:
At the July 1, 1994 hearing on the parties’ Motion for Summary Judgment, the Court was advised that the Florida Legislature desired the opportunity to redistrict the State should it be determined that any or all of Florida’s Congressional Districts were unconstitutional racial gerrymanders. In response to the ruling of the Supreme Court in Miller v. Johnson, Peter Wallace, the speaker of the Florida House of Repre-sentativest,] called a press conference at which he indicated a willingness to move quickly on legislative redistricting and at which he suggested the necessity of calling a special session of the Florida Legislature in the fall of 1995 to consider legislative redistricting. There is little doubt that this Court does not want to the [sic] burdened with the process of legislatively redistricting the State of Florida on a second occasion during this decade. Consequently, rapid action on the movants’ motion would most likely lead to legislative redis-trieting being resolved in the legislative forum rather than a judicial forum.
(doc. 64 at 5).2 This language does not even remotely indicate that the plaintiffs “have challenged the DeGrandy court’s imposition of a permanent state redistricting plan.”
The majority’s citation to the plaintiffs’ motion for summary judgment (doc. 26) also fails to support its contention. Page eight of that motion reads, in relevant part:
The Florida Legislature in this case was prevented from enacting a replacement plan by paragraph 2 of the [DeGrandy ] court’s judgment which stated that plan 308 would not be merely a temporary plan but instead would be “the plan to be utilized in the 1992 Florida congressional elections and in Florida congressional elections thereafter.” To this extent, the court appears to have deviated from the limited authority to create court-drawn redistricting plans set out by the Supreme Court. It has also violated the principle of the separation of powers and has prevented the Florida Legislature from fulfilling its obligations under Article III, Section 3 of the Florida Constitution to redistrict the State after the decennial census. Any alternative adopted by the court should cure that initial defect in the Judgment by making any court-ordered redistricting plan a temporary measure pending legislative action.
*1562(doe. 26 at 8) (emphasis added).3 As the emphasized language shows, in this motion the plaintiffs only request that if this court issues a redistricting plan as part of its relief, that plan should be temporary in nature. Though the rest of the plaintiffs’ language certainly opines that the DeGrandy court exceeded its authority in rendering its injunction, I do not see how the majority can fairly transform that language into a challenge to that injunction.
Even assuming that one could read the plaintiffs’ pleadings as somehow asserting this challenge, events at this court’s October 19, 1995 hearing render the majority’s position wholly unsustainable. Amazingly, the majority’s creation of the plaintiffs’ challenge to the DeGrandy injunction persists despite the plaintiffs’ express admission that they are not pursuing such a challenge. At the October hearing, at which time the parties orally argued the plaintiffs’ motions for summary judgment, the following exchange transpired between this court and plaintiffs’ counsel:
JUDGE HATCHETT: Let me make sure I understand your position. As I understand it at this point, you’re urging that this Court simply read the DeGrandy opinion and hold that District 3 is unconstitutional based upon Shaw and cases that have come down since this Court ruled in DeGrandy.
MR. SULLIVAN: That’s correct.
JUDGE HATCHETT: That’s your position?
MR. SULLIVAN: Yes. There was a suggestion made by the Department of Justice that this Court simply modify its prior order and order that Plan 308 would only be the congressional districting plan until the legislature came forward with another plan.
That particular suggestion sidesteps the basic issue here, which is, has this district been constitutionally racial gerrymandered, and are my clients, in fact, aggrieved parties as a result of that racial gerrymandering?
If the court wants to take that particular course of action, first of all, it would be almost an invitation to grid lock the legislature, since there are parties who both support and oppose the currently existing plan.
Secondly, it would ignore the fact that the plan, as it currently exists, is unconstitutional and would give solace to people who would believe that it can continue to hold elections according to an unconstitutional redistricting plan, and overlook the violations of the rights of the plaintiffs in this particular case.
JUDGE HATCHETT: I want to make sure I understand you on that, too. You are not urging this Court to amend its injunction in the DeGrandy case?
MR. SULLIVAN: That’s correct.
JUDGE HATCHETT: All right.
(doc. 90 at 116-17). The majority’s holding that the plaintiffs have raised a challenge to the DeGrandy injunction, in light of plaintiffs’ express admission to the contrary, is simply incomprehensible.
Furthermore, assuming (now hypothetically) that the plaintiffs somehow presented this challenge, the majority fails to provide legal support for its conclusion in footnote twenty that the plaintiffs’ alleged challenge “should be treated as a motion to amend their complaint.” In support of this conclusion, the majority states that this court “has substantial discretion in allowing parties to amend their pleadings, and leave to amend is to be ‘freely given when justice so requires.’ Fed. R.Civ.P. 15(a).” This is a correct statement of the law, but one that has no relevance here because the plaintiffs have not moved to amend their pleadings to include this challenge.4 Rule 15(a) of the Federal Rules of Civil Procedure addresses a party amending its pleadings; the rule does not speak to a court amending a party’s pleadings sua sponte. See Fed.R.Civ.P. 15(a). Additionally, because the plaintiffs never made this *1563challenge, the defendants and intervenors never had an opportunity to respond to it.5 Therefore, the majority’s granting of summary judgment on this “issue” is fundamentally unfair.
In sum, the majority possesses no support for its contention that the plaintiffs have challenged the DeGrandy injunction.6 Unfortunately, what seems clear is that the majority so wants to expound on the propriety of the injunction that it is willing to overlook the parties’ failure to raise the issue. I cannot condone the majority’s action.
I also disagree with the majority’s contention that this panel could consider such a challenge. The DeGrandy action ended when none of the parties to that lawsuit appealed that court’s May 29, 1992 judgment. On March 14, 1994, the Chief Judge of the Eleventh Circuit designated this panel to preside over this ease. The issue of the propriety of the DeGrandy injunction should be addressed when a party to the DeGrandy litigation raises that issue to the DeGrandy court.7
As to the resolution of the plaintiffs’ “challenge” to the injunction, I note only that the majority cites no precedent to support its holding that the DeGrandy court’s injunction violates constitutional separation of powers and federalism principles.
4. Summary judgment on the racial gerrymander claim
In granting summary judgment for the plaintiffs on their racial gerrymander claim, the majority holds that Shaw v. Reno, 509 U.S. 630, 113 S.Ct. 2816, 125 L.Ed.2d 511 (1993), and Miller v. Johnson, — U.S.-, 115 S.Ct. 2475, 132 L.Ed.2d 762 (1995), control this case.8 It is evident, however, that *1564the principles expressed in Shaw and Miller are confined to the context of a Fourteenth Amendment challenge to a state legislature’s redistrieting scheme. The introductory sentence of Justice O’Connor’s opinion in Shaw states: “This case involves two of the most complex and sensitive issues this Court has faced in recent years: the meaning of the constitutional ‘right’ to vote, and the ‘propriety of race-based, state legislation designed to benefit members of historically disadvantaged racial minority groups.” Shaw, 509 U.S. at -, 113 S.Ct. at 2819 (emphasis added). Moreover, the Shaw Court framed its holding as follows:
[W]e conclude that a plaintiff challenging a reapportionment statute under the Equal Protection Clause may state a claim by alleging that the legislation, though race-neutral on its face, rationally cannot be understood as anything other than an effort to separate voters into different districts on the basis of race, and that the separation lacks sufficient justification.
Shaw, 509 U.S. at-, 113 S.Ct. at 2828 (emphasis added).
Justice Kennedy’s opinion in Miller also unequivocally restrains the principles expressed in that case to the context of a challenge to a state legislature’s redistrieting plan:
The courts, in assessing the sufficiency of a challenge to a districting plan, must be sensitive to the complex interplay of forces that enter a legislature’s redistrieting calculus. Redistrieting legislatures will, for example, almost always be aware of racial demographies; but it does not follow that race predominates in the redistrieting process. The distinction between being aware of racial considerations and being motivated by them may be difficult to make. This evidentiary difficulty, together with the sensitive nature of redistrieting and the presumption of good faith that must be accorded legislative enactments, requires courts to exercise extraordinary caution in adjudicating claims that a state has drawn district lines on the basis of race. The plaintiffs burden is to show, either through circumstantial evidence of a district’s shape and demographics or more direct evidence going to legislative purpose, that race was the predominant factor motivating the legislature’s decision to place a significant number of voters within or without a particular district. To make this showing, a plaintiff must prove that the legislature subordinated traditional race-neutral districting principles, including but not limited to compactness, contiguity, respect for political subdivisions or communities defined by actual shared interests, to racial considerations. Where these or other race-neutral considerations are the basis for redistrieting legislation, and are not subordinated to race, a state can “defeat a claim that a district has been gerrymandered on racial lines.”
Miller, — U.S. at-, 115 S.Ct. at 2488 (citations omitted) (emphasis added) (quoting Shaw, 509 U.S. at-, 113 S.Ct. at 2827).
This case, in contrast, involves a challenge to a congressional district a three-judge federal court drew in fashioning a remedial state-wide congressional redistrieting plan in response to the Florida Legislature’s failure to do so. Accordingly, the prescriptions of Shaw and Miller do not apply here.
The Supreme Court’s treatment of DeWitt v. Wilson, 856 F.Supp. 1409 (E.D.Cal.1994), aff'd in part and appeal dismissed in part, — U.S. -, 115 S.Ct. 2637, 132 L.Ed.2d 876 (1995), bolsters this conclusion. In fact, DeWitt constitutes a more analogous (and thus more persuasive) precedent for this case than does Shaw or Miller. In DeWitt, a three-judge federal court upheld the constitutionality of the 1992 redistrieting plan the California Supreme Court enacted in the face of legislative impasse. The DeWitt court noted that the district lines were not “based deliberately and solely on race, with arbitrary distortions of district boundaries.” 856 F.Supp. at 1413. Rather, the redistrieting plan “looked at race ... as one of the many factors to be considered,” which included population equality, compliance with the Voting Rights Act, and respect for communities of interest, compactness, geographic integrity, contiguity, and political boundaries. 856 F.Supp. at 1413. The Supreme Court summarily affirmed DeWitt the same day it issued its opinion in Miller. DeWitt v. Wilson, — U.S.-, 115 S.Ct. 2637, 132 L.Ed.2d *1565876 (1995). Because a review of the DeGran-dy opinion shows that the three-judge court “did not redistrict based solely on race, but ... considered] race as a component of traditional redistricting principles,” I would deny the plaintiffs’ motions for summary judgment on the authority of DeWitt. 856 F.Supp. at 1415.
Assuming, however, that Shaw and Miller do apply to this ease, those decisions do not compel granting summary judgment for the plaintiffs on their racial gerrymander claim at this stage of the litigation. Miller construed and modified Shaw as follows:
Shape is relevant not because bizarreness is a necessary element of the constitutional wrong or a threshold requirement of proof, but because it may be persuasive circumstantial evidence that race for its own sake, and not other districting principles, was the legislature’s dominant and controlling rationale in drawing its district lines.
Miller, — U.S. at-, 115 S.Ct. at 2486. The Court went on to state that “[i]n the absence of a pattern as stark as those in Yick Wo [v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 (1886),] or Gomillion [v. Lightfoot, 364 U.S. 339, 81 S.Ct. 125, 5 L.Ed.2d 110 (1960) ], ‘... the Court must look to other evidence’ of race-based decisionmak-ing.” Miller, — U.S. at-, 115 S.Ct. at 2487 (quoting Arlington Heights v. Metropolitan Hous. Dev. Corp., 429 U.S. 252, 266, 97 S.Ct. 555, 563, 50 L.Ed.2d 450 (1977)).
In granting summary judgment to the plaintiffs pursuant to Shaw, the majority provides one paragraph of analysis. The majority first states that “one does not need to look any further than a map of the Third District to reach the conclusion that race was in fact the predominant motivating factor of the De-Grandy court.” I find this eonclusory, “it is because it is” reasoning wholly unpersuasive. I, for one, need to look further than a map to reach such a conclusion; apparently, so do the legal representatives of the United States and Florida governments. The majority must recognize the weakness in its first statement, however, because it next provides a quotation from a newspaper editorial (entitled “Odd Shape a Travesty”) describing the inelegant appearance of the Third District. I am sure the majority comprehends the persuasive effect that newspaper editorials have in the Eleventh Circuit. Next, the majority refers to Judge Vinson’s concurring opinion in DeGrandy, where he wrote that the Third District “has the appearance of something lifted from a Rorschach test.” DeGrandy v. Wetherell, 794 F.Supp. 1076, 1090 (N.D.Fla.1992) (Vinson, J., specially concurring). Judge Vinson, of course, joined the DeGran-dy court’s opinion and explained in his special concurrence that the redistricting plan “is fair and accomplishes what we are striving to do.” 794 F.Supp. at 1084. Finally, the majority asserts that the Third District’s shape is more bizarre than the shape of the district at issue in Miller, Georgia’s Eleventh District. This comparison has absolutely no relevance because the Supreme Court did not find, pursuant to Shaw, that Georgia’s Eleventh District constituted, on its face, a racial gerrymander. Rather, the Court considered “additional evidence showing that the General Assembly was motivated by a predominant, overriding desire to assign black populations to the Eleventh District” in order to create a third African-American majority congressional district in Georgia. Miller, — U.S. at-, 115 S.Ct. at 2489.
The shape of the Third District may be so bizarre that it can rationally be understood only as an effort to segregate voters on the basis of race. Shaw, 509 U.S. at-, 113 S.Ct. at 2826. At this stage of the litigation, however, I cannot say that it is. If I did, I would be engaging in the same eonclusory reasoning that the majority employs. As the Supreme Court has explained, only in “rare” and “exceptional” Gomillion-like eases will a district’s facial bizarreness give rise, without further evidence, to a racial gerrymander finding. Miller, — U.S. at-, 115 S.Ct. at 2487. Consequently, at this stage of the litigation, I would deny the plaintiffs’ summary judgment motions to the extent that they allege, pursuant to Shaw, that the shape of the Third District, without more, proves the existence of a racial gerrymander.
I would, however, permit the parties to engage in discovery on this claim. The products of discovery would provide this court with evidence that it could use to support its resolution of this issue. The parties could *1566secure affidavits or depose experts who could opine on such questions as: (1) whether the Third District is more or less bizarre than the districts at issue in Shaw, North Carolina’s First and Twelfth Districts; (2) where the Third District ranks in terms of “bizarreness” with other congressional districts; and (3) ultimately, whether the shape of the Third District is so bizarre that it can rationally be understood only as a racial gerrymander. Again, allowing the parties to pursue discovery as to the plaintiffs’ facial bizarreness claim would enable this court to provide substantial reasons for its decision, and not just eonclusory assertions and quotations from newspaper editorials.
The majority also holds, in the alternative, that the DeGrandy opinion, the Special Master’s Report, and the Independent Expert’s Report show that “race was the predominating factor in the creation of District Three,” and thus the plaintiffs are entitled to summary judgment pursuant to Miller.9 A review of those documents, however, does not support the majority’s holding.10
In drawing Florida’s congressional districts, the DeGrandy court considered race among several variables. The court recognized that it had a constitutional obligation to achieve population equality among the districts. See 794 F.Supp. at 1084 (“To satisfy the one person-one vote requirement, this court must draw the congressional districts so that their populations are equal.”); see also Special Master’s Report at 8; Independent Expert’s Report at 4, 8-9. The court also drew the districts in light of the principles of section 2 and section 5 of the Voting Rights Act. See 794 F.Supp. at 1083 (“[T]his court must consider in crafting the redistricting plan the section 2 requirement of ensuring that the plan does not dilute the votes of racial or language minorities.”) and at 1084 (“This court should also consider issues of possible retrogression affecting the five Florida counties which come under the protection of section 5 of the Voting Rights Act.”); see also Special Master’s Report at 12 (“[A]ll the parties and amici curiae agree that section 2 must, at a minimum, be considered in crafting the redistricting plan.”) and at 19-20; Independent Expert’s Report at 10-13. The court also decided to draw contiguous districts. See 794 F.Supp. at 1084 (“Although no federal or state requirement that congressional districts be contiguous exists, contiguity is appropriate.”); see also Independent Expert’s Report at 14-15. Moreover, the court found that respecting traditional county boundaries was a “desirable approach.” 794 F.Supp. at 1085; see also Independent Expert’s Report at 16.11
Similarly, the court held that generating compact districts was “desirable.” 794 F.Supp. at 1084. The court also found the prescriptions of Thornburg v. Gingles, 478 U.S. 30, 106 S.Ct. 2752, 92 L.Ed.2d 25 (1986), which, inter alia, require plaintiffs mounting a section 2 challenge to make a threshold showing that their group is sufficiently large and geographically compact to constitute a majority in a single-member district, “helpful.” 794 F.Supp. at 1083. The court further stated that
[t]he consideration of communities of interest is also relevant to the determination of compactness. If a district is so spread out that no sense of community exists, then that district is not sufficiently compact. However, members of a minority group who live in separate enclaves may still be included in a single district where it can be shown that they constitute a single community having similar interests.
*1567794 F.Supp. at 1085 (citation omitted); see also Independent Expert’s Report at 16-17. Critically, the Special Master found that Af-ricanr-Americans residing in the Third District constituted a community of interest:
Several parties proposed districts in Northeast Florida which contained African-American majority [voting-age] populations. The evidence showed that due to the cohesiveness of the African-American population, African-Americans may constitute a community of interest even if they live in different municipalities. Therefore, an African-American majority district, such as the Independent Expert Plan’s District 3, may spread over a number of counties without damaging a community of interest. Of course, there are a number of non-racial factors considered in the makeup of a community of interest, e.g., similar economic status, background and aspirations.
Special Master’s Report at 27-28 (citations omitted).12 Incredibly, the majority does not address this finding even though Miller directs that “[a] State is free to recognize communities that have a particular racial makeup, provided its action is directed toward some common thread of relevant interests.” Miller, — U.S. at-, 115 S.Ct. at 2490. Finally, the DeGrandy court contemplated “maintaining party competitiveness” in adopting its redistricting plan. 794 F.Supp. at 1085; see also Independent Expert’s Report at 17-18, 38-39.
In short, in drawing the congressional districts, the DeGrandy court considered numerous traditional, non-racial districting principles, including population equality, compliance with sections 2 and 5 of the Voting Rights Act, and the maintenance of contiguity, county boundaries, compactness, communities of interest, and political party competitiveness. Moreover, the court expressly found that the African-American population in the Third District constituted a community of interest. In addition, the court rejected two proposed redistricting plans because they included districts containing African-American populations that did not comprise communities of interest. In rejecting the Ireland plan, the court wrote:
The ... plan’s African-American majority district in central Florida is extremely long, irregularly shaped, and extends from Palm Beach County in south Florida to Volusia County in central Florida, and from St. Lucie County on the Atlantic Coast to Pinellas County on the Gulf Coast. This long, irregularly shaped district traverses parts of seventeen counties and involves three major media markets. The communities linked in this sprawling district are likely to have competing interests and do not constitute communities of interest.
794 F.Supp. at 1086. The court also rejected the DeGrandy plan because, inter alia, “the plan’s sprawling [African-American] influence district in central Florida links together populations in the Tampa and Orlando areas likely to have competing interests.” 794 F.Supp. at 1086. The majority addresses none of these factors, except when it admits that “[t]he DeGrandy court closely followed the dictates of the Voting Rights Act and traditional redistricting principles throughout th[e redistricting] process.”
In sum, I cannot find, on the basis of the DeGrandy opinion, that race was the predominant factor motivating the three-judge court in drawing the Third District. I also believe, however, that genuine issues of material fact exist concerning this issue. These factual issues include: (1) whether the Third District is functionally compact; and (2) whether the DeGrandy court subordinated Florida’s traditional race-neutral districting principles to radal considerations in drawing the Third District. Accordingly, Miller does not justify the granting of summary judgment for the plaintiffs on their racial gerrymander claim at this stage of the litigation.
I would also permit the parties to engage in discovery on this issue. The majority does not, however, because it believes “[t]he issue of whether District Three is a racially gerrymandered district turns on an examination of the DeGrandy court’s motivations in creating *1568the Third District, as memorialized in the independent expert’s report, Special Master’s Report and Recommendation, and the De-Grandy decision itself.” Though the majority is correct in asserting that this issue turns on the DeGrandy court’s motivations, I fail to understand why only the three enumerated documents can be used to discern those motivations. The majority provides no legal support for this conclusion; indeed, the majority’s decision to prohibit discovery on the plaintiffs’ racial gerrymander claim contravenes the Supreme Court’s directive that “courts ... exercise extraordinary caution in adjudicating claims that a state has drawn district lines on the basis of race.” Miller, — U.S. at-, 115 S.Ct. at 2488 (emphasis added). It is not obvious to me why the parties should be precluded from engaging in discovery, which could involve, among other options, deposing the independent expert, or, for that matter, members of the DeGrandy court.13 When parties challenge legislatively-drawn districts, they are not restricted to the four corners of legislative histories in attempting to discern a legislature’s motives; rather, they depose legislators as a matter of practice. Courts permit this to occur, of course, because governmental actors do not always document their true motives. Therefore, if Miller applies to court-drawn districts, why should this court preclude the parties from looking beyond the DeGrandy court’s judicial pronouncements?14 In short, the majority’s assertion that “[additional discovery would not lead to any evidence that would create a material question of fact on this issue” is indefensible.15
In closing, I must state that I find the majority’s approach troubling. This case involves a challenge to a court-drawn congressional district. The majority gives short shrift to this fact (and the DeWitt precedent), which enables it to apply the less-deferential Miller standard. The majority, however, does not permit the parties to litigate fully the Miller claim — that would involve the parties questioning the responsible governmental actors about their motivations in drawing the Third District’s lines. Instead, the majority restricts its Miller inquiry to three documents. I believe the majority does this because this case involves a challenge to a court-drawn district, and the majority realizes that allowing the parties to develop their contentions under Miller may lead to messy results (like federal judges being deposed about what their intentions were in drawing redistricting lines) that the majority wants to avoid. The majority, however, cannot have it both ways. If judicially-drawn districts are entitled to greater deference from reviewing courts than legislatively-drawn districts (and I believe they are), the DeWitt standard applies. If not, Miller applies, and the parties must be afforded the opportunity to litigate fully the issue of whether race was the predominant factor driving the DeGrandy court in drawing the Third District — even if that inquiry leads to consequences the majority dislikes.
The majority’s granting of summary judgment to the plaintiffs on their racial gerrymander claim pursuant to Shaw and, in the alternative, Miller, without first affording the parties the opportunity to engage in discovery in this complex and important case, is a grave error.
For the foregoing reasons, I dissent.
*1569APPENDIX A
UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF FLORIDA TALLAHASSEE DIVISION
Andrew E. JOHNSON, Thomas S. Blood-worth, Charles Henry Bloodworth, III, Bill Boyer, Frances Brown, Robert T. Conner, Harold F. Davis, Arthur Wilson Devoe, Robert Ellison, George Erdel, Paul Farley, Sue Hall, Hugh Milton Hays, Jr., Hugh Milton Hays, Sr., Carson Thomas Howes, Jr., Ron Jackson, Carolyn Janice Johnson, Coranell H. Johnson, Susan M. Lamb, Jim Lewis, Pat Mathis, Cynthia McKinney, Daniel McKinney, Jim Neill, Tommy Praeter, Charles Romero, Vicki T. Romero, and Dana Wine, Plaintiffs,
vs.
Jim SMITH, in His Official Capacity as Secretary of the State of Florida; Pat Thomas, in His Official Capacity as President of the Florida Senate; and Bolley L. Johnson, in His Official Capacity as Speaker of the Florida House of Representatives,
Defendants.
CASE NO.: 94-40025
COMPLAINT
Plaintiffs, ANDREW E. JOHNSON, THOMAS S. BLOODWORTH, CHARLES HENRY BLOODWORTH, III, BILL BOYER, FRANCES BROWN, ROBERT T. CONNER, HAROLD F. DAVIS, ARTHUR WILSON DEVOE, ROBERT ELLISON, GEORGE ERDEL, PAUL FARLEY, SUE HALL, HUGH MILTON HAYS, JR., HUGH MILTON HAYS, SR., CARSON THOMAS HOWES, JR., RON JACKSON, CAROLYN JANICE JOHNSON, CORA-NELL H. JOHNSON, SUSAN M. LAMB, JIM LEWIS, PAT MATHIS, CYNTHIA MCKINNEY, DANIEL MCKINNEY, JIM NEILL, TOMMY PRAETER, CHARLES ROMERO, VICKI T. ROMERO, and DANA WINE sue the Defendant, JIM SMITH, SECRETARY OF THE STATE OF FLORIDA; PAT THOMAS, in his official capacity as PRESIDENT OF THE FLORIDA SENATE; and BOLLEY L. JOHNSON, in his official capacity as SPEAKER OF THE FLORIDA HOUSE OF REPRESENTATIVES, and allege:
1. This Court has jurisdiction over this cause pursuant to 28 U.S.C. Section 1343(1), (2), (3) and (4). This is a civil action to redress the deprivation of a right, privilege, or immunity secured by the Constitution of the United States pursuant to 42 USC Section 1985.
2. During the 1992 Congressional elections, the Plaintiff, ANDREW E. JOHNSON was a candidate for Congress in the United States Third Congressional District in the State of Florida, who resided in Jacksonville, Florida and who was and still is a registered voter in the State of Florida. At and during all times mentioned herein, the Plaintiffs, ANDREW E. JOHNSON, THOMAS S. BLOODWORTH, CHARLES HENRY BLOODWORTH, III, BILL BOYER, FRANCES BROWN, ROBERT T. CONNER, HAROLD F. DAVIS, ARTHUR WILSON DEVOE, ROBERT ELLISON, GEORGE ERDEL, PAUL FARLEY, SUE HALL, HUGH MILTON HAYS, JR., HUGH MILTON HAYS, SR., CARSON THOMAS HOWES, JR., RON JACKSON, CAROLYN JANICE JOHNSON, CORA-NELL H. JOHNSON, SUSAN M. LAMB, JIM LEWIS, PAT MATHIS, CYNTHIA MCKINNEY, DANIEL MCKINNEY, JIM NEILL, TOMMY PRAETER, CHARLES ROMERO, VICKI T. ROMERO, and DANA WINE were and still are residents of Duval, Clay, and St. Johns Counties, Florida and are citizens and registered voters in the State of Florida, all of whom are similarly situated as:
A. Residents in the 1992-1994 Third Congressional District, who have been deliberately relegated to minority voting status within the Third Congressional District by the 1992 redistricting plan, and/or
B. Residents of the State of Florida who live in districts which were created with the intent to separate voters into different districts on the basis of race.
*15703. At and during all times mentioned herein, the Defendant, JIM SMITH, was and still is the Secretary of State of Florida. As Secretary of State, Mr. SMITH is charged with administering elections to the United States Congress in the State of Florida. At and during all times mentioned herein, the Defendants, PAT THOMAS and BOLLEY L. JOHNSON are the President of the Florida Senate and Speaker of the Florida House of Representatives respectively and are charged by the Florida Constitution with responsibility for redistricting the Congressional districts after each decennial reapportionment.
4. On or about July 17, 1992, the State of Florida, in accordance with the opinion and order of the United States District Court, Northern District of Florida in the cases of Miguel De Grandy, et al. vs. T.K Wetherell, TCA 92-40015-WS; Florida State Conference of NAACP Branches vs. Chiles, TCA No. 92-40131-WS; and United States of America vs. State of Florida, TCA-No. 92-40220-WS created a new Third Congressional District. A general layout map of the new Third Congressional District is attached hereto and incorporated herein as Exhibit “A”.
5. The newly drawn Third Congressional District was created by assembling pockets of African-American voters from fourteen counties extending from Orlando through Jacksonville to Ocala. The African-American population in Northeast Florida is neither sufficiently large nor sufficiently geographically compact to constitute a single Congressional District without resorting to racial gerrymandering. Because of the manner in which the District was created, the Third Congressional District is not reasonably compact.
6. The new Third Congressional District cannot rationally be understood as anything other than an effort to separate voters into different districts on the basis of race.
7. The creation of the new Third Congressional District deprives each of the Plaintiffs of a right, privilege or immunity secured by the United States Constitution and particularly the Fourteenth and Fifteenth Amendments to the Constitution.
8. The Third Congressional District is objectionable because:
A. The creation of the District was not narrowly tailored to further a compelling governmental interest.
B. The shape of the District results in a political unit incapable of meaningful representation.
C. The District contains no coherent communities of shared interest and shows no respect for traditional political boundaries.
D. The District links together populations in Orlando, Daytona, and Jacksonville, likely to have competing interests.
E. The District lacks real and effective contiguity.
9. As a direct and proximate result of the creation of the 1992-1994 Third Congressional District in the State of Florida, the Plaintiffs have been deprived of equal protection under the law.
10. The Plaintiffs have retained the services of the firm of Sullivan & Boyd to represent them in this matter.
WHEREFORE, the Plaintiffs demand in-junctive and other relief against the Defendant including, but not limited to the following:
A. The entry of an order setting aside the July 17, 1992 order of the United States District Court, Northern District of Florida in the cases of Miguel De Grandy, et al. vs. T.K Wetherell, TCA 92-40015-WS; Florida State Conference of NAACP Branches vs. Chiles, TCA No. 92-40131-WS; and United States of America vs. State of Florida, TCA-No. 92-40220-WS for the reasons set out in the Supreme Court’s ruling in Shaw vs. Reno, 113 S.Ct. 2816, 125 L.Ed.2d 511 (1993) and enjoining JIM SMITH, SECRETARY OF THE STATE OF FLORIDA from holding any future congressional elections based upon the 1992 redistricting plan set forth therein.
B. The entry of an order directing that the term of office of each member of the United States House of Representatives from *1571Florida who represents a district created under the 1992 redistricting plan, and each district created under such plan, shall expire at noon on the 3rd day of January, 1995, and such terms of office and such districts shall not be extended or carried over into the next Congress in any manner whatsoever.
C. The entry of an order compelling PAT THOMAS and BOLLEY L. JOHNSON as representatives of the Florida Legislature to redistriet the State of Florida in accordance with the principles established by the Supreme Court. ;
D. The entry of an order awarding the Plaintiffs reasonable attorneys fees plus prejudgment interest and costs.
Respectfully submitted,
SULLIVAN & BOYD
G.J. ROD SULLIVAN, JR. P.A.
/s/ G.J. Rod Sullivan
G.J. Rod Sullivan, Jr.
Florida Bar ID No. 356794
Post Office Box 4519
Jacksonville, FL 32201
(904) 356-2050
Attorney for Plaintiffs
APPENDIX B
[Page 5 of August 31, 1994 unpublished order]
narrowly tailored to satisfy a compelling governmental interest, it is similarly prohibited to a United States District Court. If anything, Federal District Courts need to be more cognizant of the Constitutional prohibitions against racial classifications than State legislatures.
9. At the July 1, 1994 hearing on the parties’ Motion for Summary Judgment, the Court was advised that the Florida Legislature desired the opportunity to redistrict the State should it be determined that any or all of Florida’s Congressional Districts were unconstitutional racial gerrymanders. In response to the ruling of the Supreme Court in Miller v. Johnson, Peter Wallace, the speaker of the Florida House of Representatives called a press conference at which he indicated a willingness to move quickly on legislative redistricting and at which he suggested the necessity of calling a special session of the Florida Legislature in the fall of 1995 to consider legislative redistricting. There is little doubt that this Court does not want to the burdened with the process of legislatively redistricting the State of Florida on a second occasion during this decade. Consequently, rapid action on the movants’ motion would most likely lead to legislative redistricting being resolved in the legislative forum rather than a judicial forum.
APPENDIX C
[Page 8 of plaintiffs’ motion for summary judgment]
417, 98 S.Ct. 2493 (1977). After the impending elections are completed, the legislature is supposed to recommence its deliberations in an attempt to come up with a legislative redistricting plan.
The Florida Legislature in this case was prevented from enacting a replacement plan by paragraph 2 of the court’s judgment which stated that plan 308 would not be merely a temporary plan but instead would be “the plan to be utilized in the 1992 Florida congressional elections and in Florida congressional elections thereafter.” To this extent, the court appears to have deviated from the limited authority to create court-drawn redistricting plans set out by the Supreme Court. It has also violated the principle of the separation of powers and has prevented the Florida Legislature from fulfilling its obligations under Article III, Section 3 of the Florida Constitution to redistrict the State after the decennial census. Any alternative adopted by the court should cure that initial defect in the Judgment by making any court-ordered redistricting plan a temporary measure pending legislative action.
Failing the enactment of a congressional districting plan, Congress has developed a procedure for holding elections. That procedure is set out in 2 U.S.C. Section 2a(c)(2). It requires
*1572APPENDIX D
[Pages 46-51 of discussion by plaintiffs’ counsel of Milliken issue]
the evidence in this case clearly points to the fact that District 3 is a racial gerrymander either under the Shaw test or the Miller test.
Having established that it is a racial gerrymander, it is presumptively unconstitutional, and our inquiry should probably be able to end at that particular point. The reason for that is that this Court was never asked to develop a remedy other than to remedy population inequalities and the legislature’s failure to draw the plan.
However, the United States and the Florida Secretary of State have argued in their briefs that this was, in effect, a remedial plan. And while it may have been remedial with regards to population inequalities and the legislature’s failure to draw a plan, it was not, in our opinion, remedial as to the question of racial fairness.
The first element of the Milliken test is: Did the plan directly address a constitutional violation? There was no specific constitutional violation asserted, first of all, alleged in the complaints filed in this matter or asserted by the Court, other than the ones we’ve already discussed — population inequality and legislature’s failure to draw a plan.
Population inequality could very easily have been resolved and is resolved every ten years without resorting to racial gerrymandering. So, consequently, the racial gerrymandering remedy is not necessary to address the question of population inequality. Similarly, the legislature redraws the districts every ten years and does so without racial gerrymandering. Consequently, racial gerrymandering was not necessary to address the proposed or the alleged constitutional violation of the legislature’s failure to draw a plan.
So, consequently, since the racial gerrymandering did not directly address a constitutional violation that’s relevant, the racial gerrymander itself could not satisfy the criteria for a remedial plan.
Now, the Court does make a finding on Page 1079 of fourteen individual examples of official racial discrimination in the state of Florida that it asserts have influenced the Florida’s electoral process. However, those generalized suggestions or examples of official racial discrimination are all remote in time. At the time that the Court issued its opinion, there were no more called poll taxes; there was no more prohibition against intermarriage between the races; there was no more official segregation on public buses; there were few, if any, remaining vestiges of school desegregation; there were no more white primaries; there were no more at-large voting schemes for congressional seats.
Consequently, while all of these examples did exist at one time, they do not exist and were not proved in the De Grandy litigation to have existed at the time that this Court was drafting its plan. Consequently, the plan, though it is remedial as to certain constitutional violations, is not remedial as to any of these particular examples of racial discrimination.
Secondly, the plan does not pass the second Milliken test as to remedial plans, which is: Does the remedy restore the victims of discrimination to the same position that they would have been in in the absence of discrimination?
In this particular case, there are fourteen counties that are within the Third Congressional District; however, none of those fourteen counties is within the pre-clearance requirements of the U.S. Department of Justice. Those counties are Collier, Har-dee, Hendry, Hillsborough and Monroe, none of which are included in the Third Congressional District.
Furthermore, in the Third Congressional District many African-American candidates for public office had won in majority white districts. We have contacted the supervisor of elections in each of the fourteen counties and have found between 20 and 30 examples of where African-American candidates ran for school board races, county and circuit judgeships, city councils and county commissions in each of which they were elected in a majority white district by a majority of the votes.
*1573Specifically, in Duval County, where Corrine Brown resides and where a number of the plaintiffs in this case reside, Earl M. Johnson had been elected in an at-large council seat against white opponents in Duval County on at least two occasions. More recently, Sheriff Glover was elected sheriff of Duval County — he is African-American — in an at-large election in Duval County. Gwenn Chandler Thompson, an African-American candidate for city council in a city council at-large race, similarly won.
So, consequently, there is no — in this case the remedy is not designed to address a specific constitutional violation.
Thirdly—
JUDGE HATCHETT: Mr. Sullivan, you combined your motions for this argument. We’ll have to ask you to conclude in about six minutes.
MR. SULLIVAN: Your Honor, I’ll even cut it shorter than that, I think. We have covered the majority of the points.
Let me say that the third element of the Milliken test is this: Does the remedy adequately take into account the interest of the state legislature managing state government?
Now, there is a case called McDaniel versus Sanchez, which dealt with the question of when the court can step in and create a districting plan where the legislature has faded to act, and I think particularly important in this particular ease is Footnote 30 of that decision, which says that the court must give the legislature every opportunity to devise an acceptable plan.
Now, the factual situation in that case was where the court was developing a plan before elections had come forward, but we think the principle is equally applicable where the court develops a plan because of the imminence of the coming election. We think that to narrowly tailor any remedy or to satisfy the third element of the Milliken test, this Court would have to have made its congressional districting plan, Plan 308, an interim plan or a temporary plan; and that, as soon as the congressional elections were completed in 1992, the legislature should have been permitted the opportunity to go back, and, as a matter of fact, should have been ordered to go back, and attempt to legislatively redraw the districts.
And, consequently, that’s what we are asking to happen here, is that the legislature, which has already filed in this case a stipulation to abate and to abide decree, has asked this Court for permission to redistrict the state of Florida, the congressional districts, in accordance with constitutional principles; and that they, therefore, should be granted that right because it is their responsibility under the Florida Constitution to do so. And I think that under the U.S. Constitution, it is this Court’s responsibility to exercise all of its discretion in allowing the legislative redistricting process to go forward whenever possible.
So, just to summarize, Your Honor, in this case, the Third District is a racial gerrymander, presumptively unconstitutional. This particular plan, even though the defendants have argued that it is a remedial plan, was, in fact, remedial only as to the population violations and legislature’s failure to draw a plan; and even if it were remedial, it would not pass strict scrutiny.
We would, therefore, ask the Court to refer this case — refer this redistricting process back to the state legislature.
JUDGE HATCHETT: Are there any other motions for you to argue today?
MR. SULLIVAN: Judge, there is a motion for a preliminary injunction, which, quite frankly, repeats a lot of the argument that was made in the motion for summary judgment.
The first element of that is that there is a substantial likelihood that we will prevail. The other three elements, I can address later without duplicating any of the
. A copy of the plaintiffs’ complaint is set forth as Appendix A to this opinion.
. A copy of page five of plaintiffs' supplemental motion for summary judgment is provided as Appendix B to this opinion.
. A copy of page eight of plaintiffs’ motion for summary judgment is put forth as Appendix C to this opinion.
. Of course, one would not expect the plaintiffs to amend their pleadings to include a challenge that they have admitted they are not pursuing.
. Indeed, if, as the majority asserts, the plaintiffs have raised this challenge, one wonders why none of the defendants or intervenors has responded to it in their pleadings.
. The majority’s response to my dissent in footnote twenty of its opinion does not affect this conclusion. There the majority writes that the plaintiffs have “consistently attacked” the constitutionality of the DeGrandy injunction. In support of this assertion, however, the majority only provides language (selectively edited at that) from one pleading — the plaintiffs’ motion for summary judgment. As discussed above, that language, when read in context, cannot fairly be characterized as constituting a challenge to the injunction. The majority does not, because it cannot, cite language from the plaintiffs’ complaint or supplemental motion for summary judgment in support of its position. The only other evidence the majority provides to demonstrate the existence of the plaintiffs’ challenge is a selectively edited excerpt of plaintiffs' counsel’s statements made at the October hearing. The majority's reference to this language proves the desperate state of its position. Plaintiffs' counsel made those comments in responding to the Justice Department and State of Florida's contention that the DeGrandy redistricting plan constituted a remedial plan pursuant to Milliken v. Bradley, 433 U.S. 267, 97 S.Ct. 2749, 53 L.Ed.2d 745 (1977); even the most creative reading of those comments does not reveal that counsel was articulating a constitutional challenge to the De-Grandy injunction. (A copy of plaintiffs’ counsel’s discussion of the Milliken issue (doc. 90 at 46-51) is provided as Appendix D to this opinion.) Finally, the majority writes that though plaintiffs’ counsel expressly admitted that he was not asking this court to amend the DeGrandy injunction, "[p]laintiffs were not abandoning their attack" on the injunction. In other words, the majority is reduced to contending that plaintiffs' counsel did not mean what he said at the October hearing.
. The DeGrandy court has continuing power to supervise and modify its injunction. See Mann Mfg., Inc. v. Hortex, Inc., 439 F.2d 403, 407 (5th Cir.1971) ("It is well settled that the issuing court has continuing power to supervise and modify its injunctions in accordance with changed conditions.”); see also United States v. Swift & Co., 286 U.S. 106, 114, 52 S.Ct. 460, 462, 76 L.Ed. 999 (1932) (power to modify an injunction "directed to events to come is subject always to adaptation as events may shape the need”). Moreover, the parties to the DeGrandy action can move that court to modify the injunction. See Fed.R.Civ.P. 60(b); United States v. Georgia Power Co., 634 F.2d 929, 933 (5th Cir. Unit B Jan. 1981) (the issuing court can prospectively modify a permanent injunction pursuant to rule 60(b)(5) when the "court is convinced 'it is no longer equitable that the judgment should have prospective application' ”) (quoting Fed.R.Civ.P. 60(b)(5)), vacated and remanded on other grounds, 456 U.S. 952, 102 S.Ct. 2026, 72 L.Ed.2d 477 (1982). None of the parties to the DeGrandy action, however, have sought to modify the injunction.
Clearly, the majority is usurping the Chief Judge's power to assign judges to specific cases.
. Of course, this is the same majority that states, in footnote twenty-six of its opinion, that it "is unwilling to reach ... [the] conclusion” that "the Fourteenth Amendment does not apply to federal courts.”
. The majority’s analysis on this issue also spans one paragraph.
. The appendices to the DeGrandy court's opinion, which include the Special Master’s Report and the Independent Expert’s Report, were not published along with the court’s opinion, but are on file with the United States District Court for the Northern District of Florida. The DeGrandy court's opinion expressly incorporated the Special Master’s and Independent Expert's Reports. 794 F.Supp. at 1090.
.The Independent Expert's Report noted, however, that ”[t]here is no requirement that traditional boundaries be followed in drawing congressional redistricting plans for Florida.” See In re Apportionment Law, Senate Joint Res. No. 1305, 263 So.2d 797, 801 (Fla.1972) (‘‘[Tlhere is no requirement that district lines follow precinct or county lines...."), supplemented by, 279 So.2d 14 (Fla.) and 281 So.2d 484 (Fla.1973).
. The “Independent Expert Plan's District 3” is now the Third District.
. Of course, granting such a discovery request could lead to the reconstitution of this panel because two members of this court participated on the DeGrandy court.
. The majority's decision to foreclose discovery and decide the racial gerrymander claim based solely on the DeGrandy opinion is especially inappropriate given that the DeGrandy opinion preceded Shaw and Miller.
. Because I disagree that "most of the undisputed material facts are contained in the De-Grandy decision itself,” I do not believe that the plaintiffs have "substantially complied” with local rule 56.1 solely by submitting a photocopy of the DeGrandy opinion to this court. Local rule 56.1 provides that "[a]ny motion for summary judgment ... shall be accompanied by a separate, short and concise statement of the material facts as to which the moving party contends there is no genuine issue to be tried. Failure to submit such a statement constitutes grounds for denial of the motion.” N.D.Fla.Loc.R. 56.1(A).