Bandemer v. Davis

PELL, Senior Circuit Judge,

concurring in part, dissenting in part.

I concur in the majority’s conclusion that defendants, by designing and implementing the present redistricting plan, did not discriminate against NAACP plaintiffs in violation of either the Fifteenth Amendment or section 2 of the Voting Rights Act. I dissent, however, from the majority’s decision that defendants violated the Equal Protection Clause of the Fourteenth Amendment by drawing a redistricting plan that diluted Bandemer plaintiffs’ and NAACP plaintiffs’ voting strength as Democrats. Because I dissent from the majority’s determination that defendants’ plan constituted an unconstitutional political gerrymander under the Fourteenth Amendment, I must address Bandemer plaintiffs’ claims that the plan violated article II, section 1, article I, section 23, and article IV, section 6 of the Indiana Constitution. In my opinion, Bandemer plaintiffs also have failed to prove that defendants violated the Indiana Constitution by adopting this redistricting plan.

I. NAACP Plaintiffs’ Claims

A. Fourteenth and Fifteenth Amendments

I concur in the majority’s conclusion that NAACP plaintiffs have failed to prove that defendants, by enacting the present redistricting plan, discriminated against plaintiffs on account of their race. NAACP plaintiffs attack the redistricting plan as unconstitutional under the Fourteenth Amendment, the Fifteenth Amendment, and section 2 of the Voting Rights Act. To demonstrate unconstitutional race discrimination under the Fourteenth and Fifteenth Amendments, plaintiffs must prove that defendants intended to discriminate against them on the basis of race. Mobile v. Bolden, 446 U.S. 55, 62-63, 66, 100 S.Ct. 1490, 1497-1498, 1499, 64 L.Ed.2d 47 (1980) (plurality opinion). See also Gomillion v. Lightfoot, 364 U.S. 339, 346-47, 81 S.Ct. 125,129-30, 5 L.Ed.2d 110 (1960) (Fifteenth Amendment challenge to redrawing boundaries of Tuskegee Alabama).

I agree with the majority that the evidence in this case establishes that defendants did not intend to discriminate against plaintiffs on account of their race in drawing the redistricting plan. For this reason, NAACP plaintiffs cannot prove Fourteenth or Fifteenth Amendment claims for race discrimination. If anything, defendants at*1497tempted, through their redistricting plan, to maximize Republican voting strength and to contain Democratic voting strength. NAACP plaintiffs, therefore, may argue that defendants discriminated against them on account of their political affiliation in violation of the Equal Protection Clause of the Fourteenth Amendment. I will address that contention in Part II of this opinion.

B. Section 2 of the Voting Rights Act

Although I agree with the majority that NAACP plaintiffs have failed to establish that defendants violated section 2 of the Voting Rights Act, I disagree with the reasoning employed by the majority. Despite the fact that the majority found that the redistrieting plan “had a significantly adverse impact upon black voters,” the majority held that .defendants did not violate section 2 because they were motivated by partisan considerations, not racial animus. Unlike claims based upon the Fourteenth and Fifteenth Amendments, a claim based section 2 does not hinge only upon the presence of discriminatory intent. For that reason, a court should not dispose of a section 2 claim simply because it finds no Fourteenth or Fifteenth Amendment violations.

In 1982, Congress amended section 2 of the Voting Rights Act to eliminate the necessity of establishing discriminatory intent to prove a violation of that section. 42 U.S.C. § 1973 (1982). To prove a violation under section 2 as amended, plaintiffs must demonstrate either that defendants intended to discriminate against them or that “the [challenged] structure or practice results in a dilution of minority voting power.” Major v. Treen, 574 F.Supp. 325, 350 (E.D.La.1983) (emphasis in original). See also Ketchum v. Byrne, 740 F.2d 1398, 1403, 1404 (7th Cir.1984), petition for cert. filed, — U.S. —, 105 S.Ct. 501, 83 L.Ed.2d 393 (1984). To determine whether plaintiffs have suffered vote dilution under the redistrieting plan, the court should examine “the totality of the circumstances.” 42 U.S.C. § 1973(b) (1982).

In its report accompanying the 1982 amendments, the Senate Judiciary Committee set forth seven factors that a court should consider to decide whether defendants have violated section 2. S.Rep. No. 417, 97th Cong., 2d Sess. 28-29 reprinted in 1982 U.S.Code Cong. & Ad.News 206-07. The application of these factors to the facts in this case supports defendants’ position that they did not violate section 2 by adopting the redistrieting plan. According to the Report, the court should first consider “the extent of any history of official discrimination in the state or political subdivision that touched the right of the members of the minority group to register, to vote, or otherwise to participate in the democratic process.” Id. While plaintiffs correctly pointed-out that the state historically has discriminated against blacks in areas of public accommodation, education, and housing, they do not offer evidence to show that blacks suffered discrimination in voting matters.

Second, the court should examine whether, if at all, racial polarization has tainted the voting in Indiana elections. The United States Supreme Court has acknowledged the' importance of this factor: “Voting along racial lines allows those elected to ignore black interests without fear of political consequences, and without bloc voting the minority candidates would not lose elections solely because of their race.” Rogers v. Lodge; 458 U.S. 613, 623, 102 S.Ct. 3272, 3279, 83 L.Ed.2d 393 (1982). As defendants emphasize in their briefs, no evidence exists to demonstrate that racial polarization has marred Indiana elections. In fact, in 1982, voters from white-majority House districts elected two black candidates to the Indiana House. Additionally, in the same election, voters from a black-majority district elected a white candidate to the House.

The court should examine as a third possible indication of vote dilution “the extent to which the state or political subdivision has used unusually large election districts, majority vote requirements, anti-single shot provisions, or other voting practices or procedures that may enhance that opportu*1498nity for discrimination against the minority group.” S.Rep. No. 417, U.S.Code Cong. & Admin.News .1982, p. 206. Plaintiffs have not demonstrated the existence of any of these enumerated devices that could minimize black voting strength. Nonetheless, plaintiffs challenge defendants’ retention of multi-member districts within the redistricting plan as racially discriminatory. The majority stated that defendants’ use of multi-member districts adversely affected black voters in Indiana, emphasizing the fact that, while only 39% of the total population resided in multi-member districts, 81.2% of the black population resided in multi-member districts. Addressing this comparison, defendants’ expert, Dr. Bernard Grofman, pointed out that

[t]he proportion of blacks in multi-member districts is, in and of itself, no indication of anything. The relevant question is what proportion of the districts are majority black districts in the relevant geographic areas of the state, as compared to the proportions of blacks in those areas of the state.

Comparing the proportion of black-majority multi-member districts with the percentage of blacks living in those districts, I find that defendants did not violate section 2 by including multi-member districts within the redistricting plan.

Plaintiffs challenge defendants’ use of multi-member districts in Allen and Marion Counties, in particular, as discriminatory against blacks. In Allen County, which defendants divided into two three-member districts, blacks comprise approximately 8% of the population. Assuming voting along racial lines, the black population’s inability to elect any Representatives in Allen County does not demonstrate vote dilution. Even if blacks were entitled to proportional representation, but see Jones v. City of Lubbock, 727 F.2d 364, 384 (5th Cir.1984); Terrazas v. Clements, 581 F.Supp. 1329, 1356 (N.D.Tex.1984), because they comprise only 8% of the population, they would not be entitled to even one of the six seats in Allen County.

Similarly, defendants have not diluted-black voting strength in Marion County through the adoption of the five three-member districts that compose the county. Blacks constitute approximately 19% of the population in Marion County. The present redistricting plan enables blacks to elect three Representatives by creating one three-member district with a 61.2% black population.1 Thus, blacks are able to elect 20% of the Marion County Representatives. By retaining multi-member districts in Marion County, defendants have not diluted the black voting strength, but have, in fact, guaranteed blacks slightly greater than proportional representation.

The fact that blacks possess near proportional representation in Lake County also supports defendants’ position that they have not violated section 2. According to plaintiffs’ figures, blacks constitute 24% of the population in Lake County. Under the present plan, blacks constitute a majority in District 14, a two-member district. If defendants had drawn a plan that permitted blacks to elect three Representatives from Lake County, blacks would have been able to capture 25% of the Lake County seats. Defendants’ failure to accord blacks this slight overrepresentation can be explained by the position of Lake County within the seven districts that encompass it. Only five of the districts are composed entirely of Lake County residents. In the remaining two districts, Lake County residents make up only small portions of those districts. More particularly, in District 10, a two-member district, blacks constitute only .3% of the total population. Similarly, in District 16, a single-member district, blacks constitute only .1% of the total population. Under these circumstances, the black population’s ability to elect approxi*1499mately 17% of the Representatives from all the districts that include Lake County leads me to conclude that defendants have not diluted black voting strength in Lake County.

A court should measure vote dilution by analyzing the effects of redistricting in those areas that contain majorities of the minority population. According to a recent case that addressed the issue of vote dilution under section 2 of the Voting Rights Act:

the raw power of such an aggregation ‘to elect’ provides a clear measure of its voting strength, hence a fair and workable standard by which to measure dilution of that strength. Short of that level, there is no such principled basis for gauging voting strength, hence dilution of that strength.

Gingles v. Edmisten, 590 F.Supp. 345, 381 (E.D.N.C.1984). Thus, the black community’s inability to exercise effective voting power in those areas in which they comprise voting majorities may indicate vote dilution. In this case, however, a comparison of the percentage of blacks with the number of black majority districts in Marion and Lake Counties demonstrate that defendants have not diluted the black vote through the redistricting plan.

The majority asserts that defendants’ use of multi-member districts is “particularly effective in ‘stacking’ blacks into large majority districts and fragmenting their population among other districts.” I disagree with this conclusion. In Marion County, defendants have drawn District 51 to contain a 61.2% black population. To ensure effective black voting power, defendants had to construct that district to include at least a majority of the black population, and perhaps a super-majority. See Ketchum, 740 F.2d at 1413. Even if defendants had placed all of the other blacks into one district, they could not have constructed another black-majority district. Under these circumstances, defendants did not stack black votes in Marion County.

Similarly, I cannot find that defendants “packed” the black vote in Lake County, the other county containing a black-majority district. If defendants had drawn District 14 to contain a 51% black majority, rather than the 69.9% majority that exists in that district under the plan, defendants conceivably could have placed the rest of the black population in the remaining districts in such a way as to create another black majority district. But see Major v. Treen, 574 F.Supp. 325, 354 (E.D.La.1983) (“[W]e are not unmindful of the legitimate debate among academics and courts about the relative merits of concentrating a minority population within one district or dividing that population into two or more districts so that it exerts a substantial influence in each.”). Undoubtedly, because seven districts compose Lake County, and because Lake County houses a total population of over one-half million people, defendants would have been hard-pressed to construct another majority district while still making the districts compact and contiguous. Additionally, as discussed previously, the present plan ensures near proportional representation for the black community in Lake County. Defendants should not be faulted for designing a plan that should guarantee that two representatives will be elected from a black-majority district; if defendants had drawn even one more black-majority district, they would have enabled blacks to wield voting strength greater than their percentage within the community would suggest. Certainly, a court should not obligate legislators to overrepresent the voting strength of a particular minority within the community. See Gingles v. Edmisten, 590 F.Supp. 345, 382 (E.D.N.C.1984).

I cannot agree, either, with the majority’s assertion that defendants used multimember districts to fragment black voting strength. In Lake County, of the 8% to 9% black population that exists outside District 14, defendants have arranged it among the remaining districts so that one district contains a 30.6% black population and another contains a 13.3% black population. These figures do not suggest that fragmentation of the black vote exists in Lake County. *1500Similarly, in Marion County, of the 8% to 9% black population that exists outside District 51, defendants have constructed one of the remaining four districts to contain a 21.6% black population. Again, defendants have not fragmented the black vote among the districts in Marion County.

Plaintiffs also have failed to demonstrate that any of the final four factors listed in the Senate Report indicates that defendants violated section 2 by adopting the redistricting plan. Plaintiffs have not proven that blacks have been denied access to the candidate slating process, S.Rep. No. 417; rather, defendants have offered evidence to show that blacks hold positions of leadership within both major political parties. Additionally, plaintiffs have failed to prove that blacks “bear the effects of discrimination in such areas as education, employment and health, which hinder their ability to participate effectively in the political process.” Id. To the contrary, defendants have shown that blacks involve themselves both within the parties’ structures and within the elected government. Also, plaintiffs have tendered no evidence to suggest that Indiana elections have been marked by “overt or subtle racial appeals.” Id. Lastly, defendants have shown that blacks “have been elected to public office” in Indiana, id.; in fact, more blacks now hold seats in the Indiana General Assembly than before the adoption of the redistricting plan.

Analyzing the factors set out in the Senate Judiciary Committee’s Report, I find that plaintiffs have failed to prove that defendants diluted the black voting strength in Indiana. Furthermore, defendants have established that the redistricting plan resulted in no “retrogression” of the black vote. As the Seventh Circuit stated in Ketchum v. Byrne, “ ‘Retrogression’ may be defined as á decrease in the new districting plan or other voting scheme from the previous plan or scheme in the absolute number of Representatives which a minority group has a fair chance to elect.” 740 F.2d at 1402 n. 2. For purposes of this case, retrogression would occur if defendants reduced the number of black majority districts that exist under the present redistricting plan from the number of black majority districts that existed under the previous redistricting plan. Defendants preserved both the two black-majority Senate districts and the two black-majority House districts in their redistricting plan. Thus, defendants’ plan did not cause any retrogression of the black vote.

In conclusion, I agree with the majority’s determination that defendants did not violate section 2 of the Voting Rights Act by adopting the present redistricting plan. As the majority notes, plaintiffs have failed to prove that defendants intended to discriminate against them on account of their race. Plaintiffs also have failed to establish that the redistricting plan resulted in a dilution of their voting strength.

II. Bandemer Plaintiffs’ Claims

A. Political Gerrymandering under the Equal Protection Clause

The Supreme Court of the United States never has addressed directly the justiciability of a political gerrymandering claim. Nonetheless, five Justices have expressed a willingness to analyze such claims under the Equal Protection Clause of the Fourteenth Amendment. Karcher v. Daggett, 462 U.S. 725, 744, 775, 103 S.Ct. 2653, 2667, 2683,77 L.Ed.2d 133 (1983) (Stevens, J., concurring) (White, J., dissenting, joined by Burger, C.J., Powell, J., and Rehnquist, J.). Because I believe that the facts of this case do not demonstrate a political gerrymander, I do not reach the constitutional question whether a cause of action for political gerrymandering exists under the Equal Protection Clause.

According to Justice Stevens, “political gerrymandering is one species of ‘vote dilution’ that is proscribed by the Equal Protection Clause.” 103 S.Ct. at 2667 (Stevens, J., concurring). To shift the burden of proof to defendants to justify the redistricting plan, plaintiffs first must prove that the plan diminishes the voting strength of an identifiable political group within the *1501state.2 Id. at 2672 (Stevens, J., concurring). Specifically, plaintiffs

must first prove that they belong to a politically salient class.... Second, they must prove that in the relevant district or districts or in the State as a whole, their proportionate voting influence has been adversely affected by the challenged scheme. Third, plaintiffs must make a prima facie showing that raises a rebuttable presumption of discrimination.

Id. (Stevens, J., concurring). Defendants must justify the adoption of the redistricting plan as serving “neutral, legitimate interests” of the state only if the plaintiffs first can prove the existence of the three elements that Justice Stevens sets forth.

Plaintiffs have failed to prove that this redistricting plan constitutes an unconstitutional gerrymander because they have failed to prove that the plan has diluted their voting strength ,as Democrats. As the majority points out, plaintiffs have offered statistical data that, according to plaintiffs, proves that their voting strength has been minimized. Of this data, the majority emphasizes two numerical comparisons to prove vote dilution. First, plaintiffs point out that, although Democratic candidates for the Indiana House received 51.9% of the vote statewide in 1982, only 43 Democrats were elected to the available 100 seats. Second, plaintiffs point out that although Democratic candidates for the Indiana Senate received 53.1% of the vote statewide, only 13 Democrats were elected to the available 25 seats.3

Unlike the majority, which finds that these figures “signal” Democratic vote dilution, I find that a comparison between the percentage of Democratic votes cast statewide for legislative candidates and the number of seats actually won, standing alone, fails to prove vote dilution. According to authorities that Justice Stevens cited approvingly in Karcher, 103 S.Ct. 2672 n. 13,

This method of identifying gerrymandering ... has major flaws.... [T]he approach fails to account for the fact that the difference between the percentage of votes and number of seats captured may in fact be the result of natural advantages — the inordinate concentration of partisans in one place — rather than any deliberate partisan districting scheme.

Backstrom, Robins & Eller, Issues in Gerrymandering: An Exploratory Measure of Partisan Gerrymandering Applied to Minnesota, 62 Minn.L.Rev. 1121, 1127 (1978). To measure the pure voting strength of a particular party within the state, these authors suggest isolating “typical” statewide races, those concerning “relatively invisible offices,” and determining the percentage of votes cast for each candidate in these races. Id. at 1131. These “typical” races more accurately reflect partisan voting strength because their outcome depends, more often than not, on straight party affiliation rather than on the personalities of the particular candidates. Id.

Comparing the number of seats gained by the Democrats in the Senate and House elections with the base voting strength of the Democrats statewide, I find that plaintiffs have not demonstrated that they have suffered vote dilution under the redistricting plan. To minimize the controversy over which typical race to use, the authors suggest adopting “an average of several statewide partisan races from recent elections.” Id. In 1982, in the race for State Auditor, the Democratic candidate received 50.8% of the vote. In the election for Clerk of the Supreme Court and Court of Ap*1502peals, the Democratic candidate received 48.7% of the vote. In 1980, the Democratic candidate for the office of Reporter of the Supreme Court and Court of Appeals won 43.9% of the vote.4 Averaging the 1980 results with the average of the 1982 races yields 46.8% as the measure of the Democratic voting strength statewide in Indiana.

Under a comparison of the Democratic voting strength statewide and the percentage of Democratic seats captured in the House and Senate, plaintiffs have failed to demonstrate vote dilution. Although the Democrats won fewer House seats than the base voting strength suggested, they won considerably more seats in the Senate. Compared with a base percentage of 46.8%, the Democrats won 43% of the House seats in 1982. In the Senate elections, however, they won 52% of the seats. Thus, even if the purpose behind the plan was to favor the Republicans, the result of the plan was to advantage and disadvantage both parties equally under the plan.

Most likely, under these circumstances, factors other than political gerrymandering caused the House and Senate race results to be skewed in relation to the base Democratic voting strength statewide. The personality of the particular candidates and the specific political issues of the day may explain the small disparity between percentages. Certainly, the personality of a candidate for the Indiana House or Senate bears more heavily on the outcome than does the personality of a candidate for a relatively invisible office. In fact, Bandemer plaintiffs, in their reply brief, cited instances where both Democratic and Republican candidates ran ahead of the base vote and overcame the political complexion of their districts. Also, the heavy concentration of Democratic voters in urban areas may account for the discrepancy between the base vote and the seats won in the House elections. In these districts, any Democratic votes in excess of the number needed to elect the candidate will be politically ineffectual. Nonetheless, these votes will be influential in the statewide races from which the Democratic base vote derives. Under the facts of this case, I disagree with the majority’s conclusion that plaintiffs have demonstrated unconstitutional political gerrymandering. I would hold that plaintiffs have failed to satisfy the heavy burden of proving vote dilution. Karcher, 103 S.Ct. at 2672 (Stevens, J., concurring) (“[T]his is a. burden that plaintiffs can meet in relatively few cases.”).

The presence of multi-member districts in the redistrieting plan does not convert a legitimate plan into an unconstitutional gerrymander. The Supreme Court has noted frequently that multi-member districts are not per se unconstitutional. Rogers v. Lodge, 458 U.S. 613, 617, 102 S.Ct. 3272, 3275, 73 L.Ed.2d 1012 (1982); Chapman v. Meier, 420 U.S. 1, 15, 95 S.Ct. 751, 760, 42 L.Ed.2d 766 (1975); White v. Regester, 412 U.S. 755, 765-66, 93 S.Ct. 2332, 2339-40, 37 L.Ed.2d 314 (1973); Reynolds v. Sims, 377 U.S. 533, 577, 84 S.Ct. 1362, 1389, 12 L.Ed.2d 506 (1964). In fact, single-member districts may be drawn to discriminate against an identifiable political group just as easily as multi-member districts.

According to the Supreme Court, to prove that multi-member districts deprive an identifiable political group of equal protection:

[T]here must be more evidence than a simple disproportionality between the voting potential and the legislative seats won by a racial or political group. There must be evidence that the group has been denied access to the political process equal to the access of other groups.

Chapman, 420 U.S. at 17, 95 S.Ct. at 761. Thus, the fact that Democrats gained only 20% of the House seats in Marion County in 1982 does not prove that defendants unconstitutionally employed multi-member districts in Marion County. In fact, defendants have offered into evidence the certified election returns for Marion Coun*1503ty for the State Auditor’s race to demonstrate that the base Democratic voting strength in Marion County was considerably less than their strength statewide.5

The Supreme Court has enumerated three factors as demonstrative of a denial of access to the political process. First, the court should determine the predominance of multi-member districts within the redistricting scheme. Here, of a total of seventy-seven House districts, the legislature has drawn only nine two-member districts and seven three-member districts. The fact that 20% of the districts are multimember and that 39% of the Representatives come from these districts does not demonstrate that “multi-member districts compose a large part of the legislature.” Id. Second, the presence of multi-member districts within both the House and the Senate plans may indicate that the multimember districts are designed to deny a particular political group access to the political process. Id. Here, following past practice, the Senate plan contains no multimember districts. Third, the court should consider whether the plan allows candidates to run from the same subdivisions of a particular district or whether it imposes some type of residency requirement. Id. Neither party has offered any evidence that bears on this issue. '

According to the majority, the redistricting plan unconstitutionally dilutes Democratic voting strength because, among other things, the multi-member districts stack Democratic voters. In other words, the majority finds that Democrats “have been overconcentrated in single districts] greatly in excess of the percentage needed to elect candidate[s] of their choice.” Karcher, 103 S.Ct. at 2672 n. 13 (Stevens, J., concurring). If defendants can be faulted for overconcentrating Democrats in multimember districts, they can be faulted equally for stacking Republicans in single-member districts. In the 1982 House elections, Republicans won twenty-seven contested elections in single-member districts. Of these twenty-seven elections, Republicans won two races with over 65% of the vote, eight races with over 60% of the vote, and twelve races with over 55% of the vote. Certainly, these statistics indicate that defendants placed Republicans in single-member districts in excess of the pure majority needed to exercise effective voting strength.

Defendants did not deny equal protection to Democrats by retaining multi-member districts within the redistricting plan, but they demonstrated a willingness to convert multi-member districts into single-member districts. Under the present redistrieting plan, there are four fewer two-member districts than under the previous plan. According to defendants, the legislators changed multi-member districts into single-member districts in those districts in which all the Representatives requested such a change. This fact, coupled with the absence of vote dilution either within the multi-member districts themselves or within the state as a whole, demonstrates that defendants have not violated plaintiffs’ equal protection rights by retaining multimember districts in the House redistricting plan.

Defendants adhered to “neutral, legitimate interests” in enacting the present redistricting plan. Karcher, 103 S.Ct. at 2670 (Stevens, J., concurring). They adhered to the “one-man one-vote” principle contained in article I, section 2 of the United States Constitution by formulating a House plan with a population deviation of only 1.05% and a Senate plan with a population deviation of 1.33%. These minor deviations clearly pass muster under article I, section 2. Brown v. Thomson, 462 U.S. 835, 103 S.Ct. 2690, 2696, 77 L.Ed.2d 214 (1983) (“Our decisions have established, as a general matter, that an apportionment plan with a maximum population deviation under 10% falls within this category of minor deviations.”). In addition to avoid*1504ing dilution of the Democratic vote, defendants prevented any retrogression in the black voting strength in Indiana by maintaining all districts which had been black-majority districts under the former plan. Finally, by adopting the plan, defendants advanced subsidiary objectives that the Supreme Court has sanctioned as permissible state interests. First, defendants protected incumbents by drawing a plan which avoided placing them in the same district. Burns v. Richardson, 384 U.S. 73, 89 n. 16, 86 S.Ct. 1286, 1295 n. 16, 16 L.Ed.2d 376 (1966). See also Karcher, 103 S.Ct. at 2663. Second, defendants preserved the integrity of political subdivisions within the redistricting plan, which also constitutes a legitimate state interest. Mahan v. Howell, 410 U.S. 315, 328, 93 S.Ct. 979, 987, 35 L.Ed.2d 320 (1973), modified, 411 U.S. 922, 93 S.Ct. 1475, 36 L.Ed.2d 316. See also Karcher, 103 S.Ct. at 2663. In this plan, as the majority points out, defendants preserved township lines in most cases.

Although the Supreme Court has recognized that the Constitution places limits upon the legislature’s freedom to enact any redistricting plan, the Court has emphasized that redistricting remains essentially a political task. Gaffney v. Cummings, 412 U.S. 735, 749, 93 S.Ct. 2321, 2329, 37 L.Ed.2d 298 (1973). See also Karcher, 103 S.Ct. at 2671-72 (Stevens, J., concurring); id. at 2689 (Powell, J., dissenting). As the Supreme Court stated in Gaffney, “From the very outset, we recognized that the apportionment task, dealing as it must with fundamental ‘choices about the nature of representation,’ Burns v. Richardson, 384 U.S. at 92, [86 S.Ct. at 1297], is primarily a political and legislative process.” 412 U.S. at 749, 93 S.Ct. at 2329. In his concurrence in Karcher, Justice Stevens recognized that the determination whether a redistricting plan constitutes political gerrymandering must turn primarily upon the actual effect of the plan and not upon the intent of the legislators:

I would not condemn a legislature’s districting plan in the absence of discriminatory impact simply because its proponents were motivated, in part, by partisanship or group animus. Legislators are, after all, politicians; it is unrealistic to attempt to proscribe all political considerations in the essentially political process of redistricting.

Karcher, 103 S.Ct. at 2671-72 (Stevens, J., concurring). In this case, because Bandemer plaintiffs have failed to prove that, as Democrats, they suffered any actual vote dilution under the redistricting plan, I find that defendants have not violated the Equal Protection Clause of the Fourteenth Amendment. Under these circumstances, the judiciary should not be concerned with whether another conceivable plan might maximize a group’s voting strength. Rather, in cases such as this, the court should defer to the legislature and affirm its constitutional redistricting plan. Wise v. Lipscomb, 437 U.S. 535, 539, 98 S.Ct. 2493, 2496, 57 L.Ed.2d 411 (1978) (White, J., announcing the judgment of the court in an opinion joined by Stewart, J.) (“[R]edistricting and reapportioning legislative bodies is a legislative task which the federal courts should make every effort not to preempt.”).

B. Political Gerrymandering under the Indiana Constitution

Plaintiffs’ inability to prove vote dilution under the redistricting plan also disposes of their claims under article II, section 1 and article I, section 23 of the Indiana Constitution. Article II, section 1 provides that “All elections shall be free and equal.”

According to the Indiana Supreme Court, this provision means that “the vote of every elector is equal in its influence upon the result to the vote of every other elector.” Blue v. State ex rel. Brown, 206 Ind. 98, 114, 188 N.E. 583, 589 (1934). Accord State Election Board v. Bartolomei, 434 N.E.2d 74, 78 (Ind.1982); Oviatt v. Behme, 238 Ind. 69, 75, 147 N.E.2d 897, 900-901 (1958). Because defendants have maintained population equality between districts and have not diluted the Democratic voting strength, they have complied with article II, section 1 of the Indiana Constitution.

*1505Article 1, section 23 provides: “The General Assembly shall not grant to any citizen, or class of citizens, privileges or immunities which, upon the same terms, shall not equally belong to all citizens.” This equal protection clause of the Indiana Constitution protects the same rights as the federal Equal Protection Clause. Reilly v. Robertson, 266 Ind. 29, 37, 360 N.E.2d 171, 175 (1977), cert. denied, 434 U.S. 825, 98 S.Ct. 73, 54 L.Ed.2d 83; Haas v. South Bend Community School Corp., 259 Ind. 515, 526, 289 N.E.2d 495, 501 (1972). Naturally, as with the federal Constitution, the Indiana Constitution does not entitle every voter to the representative of his or her choice. Addressing this issue, the United States Supreme Court stated:

[T]ypical American legislative elections are district-oriented, head-on races between candidates of two or more parties. As our system has it, one candidate wins, the others lose.... [A]rguably [the losing candidates’ supporters] have been denied equal protection of the laws since they have no legislative voice of their own.... But we have not yet deemed it a denial of equal protection to deny legislative seats to losing candidates, even in those so-called ‘safe’ districts where the same party wins year after year.

Whitcomb v. Chavis, 403 U.S. 124, 153, 91 5. Ct. 1858, 1874, 29 L.Ed.2d 363 (1971). Rather, the equal protection clause of the Indiana Constitution, like the Fourteenth Amendment of the federal Constitution, guarantees to each voter the right not to have his vote diluted under a redistricting plan. Defendants have not violated article I, section 23 of the Indiana Constitution in this case.

Bandemer plaintiffs challenge the constitutionality of the redistricting plan on one additional ground. They argue that the plan violates article IV, section 6 of the Indiana Constitution, which states: “A Senatorial or Representative District, where more than one county shall constitute a district, shall be composed of contiguous counties; and no county, for Senatorial apportionment, shall ever be divided.”6 The redistricting plan satisfies the first clause mandating that counties be contiguous in districts composed of more than one county. Concededly, the redistricting plan violates the second clause prohibiting a division of counties within the Senate redistricting plan. Nonetheless, the legislators presumably could not satisfy this clause and comport with the Supreme Court’s requirement of substantial population equality within districts. After all, the legislators sought to apportion Indiana’s 92 counties into only 50 districts, representing the 50 seats in the Indiana Senate. To accomplish this apportionment while still complying with the one-man one-vote requirement, the legislature inescapably divided counties. In Whitcomb v. Chavis, the United States Supreme Court recognized the unavoidability of a conflict between article IV, section 6 of the Indiana Constitution and article I, section 2 of the United States Constitution. 403 U.S. 125, 162 n. 42, 91 S.Ct. 1879 n. 42 (plurality opinion). The Court affirmed a district court’s redistricting plan for Indiana that split the counties 90 times. Id.

Although the redistricting plan may contravene the literal meaning of article IV, section 6, it does not undermine the original purpose behind the second clause of section 6. This clause, according to the Indiana Supreme Court, was enacted to promote proportional popular representation. Denney v. State ex rel. Basler, 144 Ind. 503, 519, 42 N.E. 929, 934 (1895). The present one-man one-vote requirement, however, advances that aim to an even greater degree. Thus, I conclude that defendants’ Senate redistricting plan, which splits counties seventy-three times, does not violate article IV, section 6 of the Indiana Constitution because it embodies an attempt to apportion 92 counties into 50 district while still retaining population equality among districts.

*1506III. Conclusion I concur in the majority’s decision that defendants have not discriminated against NAACP plaintiffs on account of their race in violation of either the Fifteenth Amendment or section 2 of the Voting Rights Act.

I dissent, however, from that part of the majority’s decision that holds that defendants discriminated against NAACP and Bandemer plaintiffs as Democrats in violation of the Equal Protection Clause of the Fourteenth Amendment.

*1507COURT EXHIBIT A

*1508

. In Ketchum v. Byrne, the Seventh Circuit noted that "minorities must have something more than a mere majority even of voting age population in order to have a reasonable opportunity to elect a representative of their choice." 740 F.2d at 1413. The fact that, in 1982, two of the three Representatives elected to the House from the black-majority district were black indicates that blacks possessed considerable voting strength in that district.

. Although the four dissenters do not delineate the framework within which they would analyze a political gerrymandering claim, Justice Powell intimates that he would require greater proof than minimization of voting strength to establish a political gerrymandering claim. According to Justice Powell, a redistricting plan rises to the level of an unconstitutional gerrymander only if its "purpose and effect [are] substantially [to] disenfranchis[e] identifiable groups of voters.” 103 S.Ct. 2689 (Powell, J., dissenting) (emphasis added).

. As these numbers indicate, the percentage of seats actually won by the Democrats in the Senate is 52%, approximately the number to which they were entitled under plaintiffs’ theory-

. That this election occurred under a former redistricting plan does not affect its relevance to this calculation. The manner in which a state is districted has no bearing on the way in which votes are cast in a statewide election.

. In Marion County, the Democratic candidate for State Auditor received only 39% of the vote in 1982.

. 1982 Ind.Acts 232, § 4, as concurred in by 1984 Ind.Acts 219, § 3, repeals this section. This repeal was passed by the voters at the November 1984 general election.