DISSENTING OPINION
[Filed April 28, 1995]
DOWD, District Judge,dissenting.
The reapportionment of the Ohio General Assembly, required and strictly controlled by the Ohio Constitution, is done every ten years and follows the decennial census. Increases, decreases and shifts in population inevitably require that the boundary fines for the 99 seats in the House of Representatives be redrawn and, as a consequence, the boundary fines for the 33 seats in the Senate since each senate district consists of three discrete house districts.
The Apportionment Board (the Board), as established by the Ohio Constitution, consists of the Governor, the Secretary of State, the State Auditor and a single representative from each of the two major political parties in the Ohio General Assembly. Consequently, the political party that controls at least two of the three statewide offices will have majority representation on the Board.
At the time of the most recent reapportionment, for the first time in 30 years, the Republican Party, holding the offices of Governor and Secretary of State, had a majority of three on the Board. The two minority members of the Board, Auditor Ferguson and Representative Quilter together with other members of the Democratic Party commenced litigation to wrest control of Ohio’s reapportionment process from the majority of the Board and place it with the federal court system. The litigation, in its fourth year, continues — even after two elections conducted pursuant to Amendment D adopted by the majority of the Board.
The first effort to shift the responsibility for reapportioning Ohio from the Board failed with the decision of the United States Supreme Court in Voinovich v. Quilter, 507 U.S. 146, 113 S.Ct. 1149, 122 L.Ed.2d 500 (1993)1 and the subsequent decision of this *1035Court in Quilter v. Voinovich, 857 F.Supp. 579 (N.D.Ohio 1994) responding to the Supreme Court’s remand of the issue of whether the deviations in excess of 10% in the size of several districts in Ohio violated the Fourteenth Amendment.
Before this Court responded to the remand issue in March of 1994, but after the announcement of the Voinovich decision, and in contrast to that unanimous decision, the United States Supreme Court by a five-four vote held in Shaw v. Reno, 509 U.S. 630, 113 S.Ct. 2816, 125 L.Ed.2d 511 (1993) that a complaint that alleges redistricting so bizarre on its face that it is unexplainable on grounds other than race states a cause of action under the Equal Protection Clause of the Fourteenth Amendment and is not subject to a motion to dismiss. The Supreme Court majority further held that such allegations demand the same strict scrutiny under the Equal Protection Clause that is given other state laws that classify citizens by race.
Following Shaw v. Reno, the plaintiffs were permitted to file an amended complaint and, for the first time, raised an equal protection claim. The Court heard testimony for two days in November of 1994 and the positions of the parties have been fully briefed.
I respectfully dissent from the opinion of my colleagues as I believe judgment should be entered for the defendants on several grounds, each of which stands independently of the others. Further, my reasoning is based upon facts which I would have included in the Findings of Fact, had I written the majority opinion. These facts are attached to this dissent as Appendix A. Several of the facts are also incorporated herein.
I. THIS THREE-JUDGE PANEL’S CONSIDERATION OF THE PLAINTIFFS’ ACTION TO SET ASIDE THE REAPPORTIONMENT OF THE 99 HOUSE DISTRICTS AND 33 SENATE DISTRICTS FOR THE OHIO GENERAL ASSEMBLY WAS LIMITED TO THE SCOPE OF THE REMAND BY THE UNITED STATES SUPREME COURT AND CONSEQUENTLY THIS COURT SHOULD NOT HAVE PERMITTED THE PLAINTIFFS TO FILE A SECOND AMENDED COMPLAINT RAISING FOR THE FIRST TIME THE EQUAL PROTECTION CLAIM.
It is well established that an inferior court does not have, save in unusual circumstances, the power or authority to deviate from the mandate issued by an appellate court. Briggs v. Pennsylvania R. Co., 334 U.S. 304, 306, 68 S.Ct. 1039, 1040, 92 L.Ed. 1403 (1948); Stanton v. Stanton, 429 U.S. 501, 502, 504, 97 S.Ct. 717, 718, 719, 50 L.Ed.2d 723 (1977).
The Supreme Court remanded this ease for a single and limited purpose of determining whether the Plan’s deviation from equal population among the districts violated the Fourteenth Amendment. Voinovich v. Quilter, 507 U.S. at 150-51, 113 S.Ct. at 1154. Upon remand, this Court decided that issue. Quilter v. Voinovich, 857 F.Supp. 579 (N.D.Ohio 1994). Consequently, this case should have been concluded at that point.
In granting the plaintiffs’ motion for leave to file a second amended complaint, the majority of this Court reasoned that because Shaw v. Reno was decided after the Supreme Court issued its decision in this case, the Ohio reapportionment plan should be reevaluated. Quilter v. Voinovich, 157 F.R.D. 36, 40 (1994). Assuming that concept has merit, *1036such review required a new lawsuit and a new draw, with a probable different three-judge panel.2
I dissented when my colleagues granted the plaintiffs the right to file a Second Amended Complaint to raise for the first time, post remand, an Equal Protection Claim. I continue to hold that it was an abuse of discretion to grant that motion and that this case should have been considered closed once the Court determined the issue remanded by the Supreme Court. Thus I would rule that the motion to allow the Second Amended Complaint was improvidently granted. I would revisit the motion, deny it and close the case.
II. THE EQUAL PROTECTION CLAIM IN A LEGISLATIVE REAPPORTIONMENT CASE IS CONSTRAINED BY THE NARROW LIMITS OF THE MAJORITY OPINION IN SHAW V. RENO AND AN EXAMINATION OF THE REAPPORTIONED BOUNDARY LINES OF THE HOUSE AND SENATE DISTRICTS IN OHIO DEMONSTRATES CONCLUSIVELY THAT THEY CANNOT BE EXPLAINED ON THE BASIS OF RACE ALONE.
The Supreme Court has interpreted the “one person, one vote” principle to protect the collective rights of citizens to vote as a cohesive unit. See Shaw v. Reno, 509 U.S. -,-, 113 S.Ct. 2816, 2823, 125 L.Ed.2d 511 (1993) (citing Allen v. State Bd. of Elections, 393 U.S. 544, 569, 89 S.Ct. 817, 833, 22 L.Ed.2d 1 (1969)). As an outgrowth of the freedom of association in Article I, § 2 of the United States Constitution, the “one person, one vote” principle protects that cherished freedom to associate with others of like views, backgrounds or beliefs when bringing a united voice to the ballot box. Yet “equal protection” of the right to vote does not limit itself to the very public process of association through coalitional voting. “Equal protection” of voting rights if it means anything must protect the rights of the individual as well. Harper v. Virginia Board of Elections, 383 U.S. 663, 86 S.Ct. 1079, 16 L.Ed.2d 169 (1966) (state’s conditioning of the right to vote on the payment of poll tax violates the Equal Protection Clause of the Fourteenth Amendment). See also Gomillion v. Lightfoot, 364 U.S. 339, 349, 81 S.Ct. 125, 131, 5 L.Ed.2d 110 (1960) (redistricting of Tuskegee Alabama constituted an unlawful segregation of races of citizens in violation of the Equal Protection Clause of the Fourteenth Amendment) (Whittaker, J., concurring), approved by Shaw v. Reno, 509 U.S. at-, 113 S.Ct. at 2825-26; Wright v. Rockefeller, 376 U.S. 52, 84 S.Ct. 603, 11 L.Ed.2d 512 (1964) (Fourteenth and Fifteenth Amendment challenge to racial gerrymandering of a congressional district stated a constitutional claim, although plaintiffs failed to meet their burden of proof at trial), interpreted by Shaw v. Reno, 509 U.S. at-, 113 S.Ct. at 2826.
Congress through the enactment of the Voting Rights Act has emphasized judicial protection- of coalitional voting rights. As a result, courts have been quick to recognize that coalitional concepts such as vote dilution should be recognized as part and parcel of Fourteenth Amendment equal protection doctrine. Discussions of minority voting strength, racial bloc voting, cohesiveness, etc. became reflections of this aspect of equal protection. But these discussions of the co-alitional protections guaranteed by the Four*1037teenth Amendment have at times overshadowed that aspect of the Amendment which guarantees the individual’s voting rights. Courts faced with disparate precedent on the constitutional aspects of voting rights law have struggled to apply that law to particular cases. To a large extent those efforts have been successful. In part this may be due to the fact that as far as plaintiffs were concerned the rights of the individual and the rights of the group were not at odds. The equal protection concerns of the individual and the group to which that individual associated himself or herself were the same. This all changed with Shaw v. Reno, 509 U.S. -, 113 S.Ct. 2816, 125 L.Ed.2d 511 (1993).
In Shaw v. Reno, individuals, who did not associate themselves with the group whose voting rights the state sought to protect, invoked the Fourteenth Amendment to invalidate the state’s efforts to protect the coali-tional voting rights of those others. The Court did not prohibit the state from acting to protect the coalitional voting rights guaranteed by equal protection. Instead it held that the state could not act to protect those coalitional voting principles by creating a voter eligibility classification — in this case by creating a classification through the use of the district system — “so irrational on its face that it can be understood only as an effort to segregate voters ... because of their race....” 509 U.S. at -, 113 S.Ct. at 2832. By striking the balance between individual and coalitional Fourteenth Amendment rights in this way, the Court defined the limits of a Fourteenth Amendment claim based on individual guarantees to equal protection. That the holding of Shaw v. Reno was limited to Fourteenth Amendment challenges to “bizarre” or “irrational” districts stems from the Court’s recognition of the individual right at issue: the right not to be segregated on the basis of race into bizarre or irrational districts when the state acts to protect the coalitional voting rights of others.
The nature of the individual right addressed by Shaw v. Reno is easily understood. At law, the “district” system can be understood as a type of voter eligibility classification theoretically indistinguishable from a poll tax, literacy test or residency requirement. Compare Guinn v. United States, 238 U.S. 347, 35 S.Ct. 926, 59 L.Ed. 1340 (1915) (state use of literacy test and grandfather clause to determine one’s eligibility to vote violates the Fifteenth Amendment). Each of these attributes — payment of the tax, the ability to read and write, or geographic domicile — constitutes a characteristic without which a vote cannot be cast. Likewise, in elections for representatives in a multimem-ber legislative body, a voter who must vote under a district voting system cannot cast a ballot for the candidate or his or her choice if that candidate happens to be running in another district. Without the characteristic of residing within the district, a voter cannot cast a ballot. This is not the case in an at-large voting system. To the contrary, in an at-large system an otherwise qualified voter can cast a ballot for whatever candidates or slate of candidates choose to vie for a seat in the legislature, with only the top vote-getters being seated.3 By enacting a district system instead of an at-large system, the state favors locality-based elections over ones which emphasize the majority interests of the larger political geography. In a district system it might make sense for representatives to “bring home the bacon” as it were, while' in an at-large system the interests of the overarching majority predominate. Thus, this locality-based voter eligibility classification expressed by the district system is an attribute of the law for which individual voters deserve equal protection. If the state acts to deprive an individual of equal protection of this law, then a remedy may be had through the Fourteenth Amendment.
As is the ease of other voter eligibility classifications, however, the mere fact that the state selects one classification over another does not give rise to an equal protection claim. The mere process of districting classifies voters. But that classification alone creates no constitutional violation. Moreover, the individual citizen vis a vis other individuals has no general right to be drawn *1038into one district or to be drawn out of another. As long as the citizen is included in one district that is enough. Citizens as a group, however, do have a coalitional equal protection right to have certain of their associational interests protected in the line-drawing process. Thus, in general, the coalitional interests of the group predominate over the individual’s interests and the state may engage in districting that recognizes those group interests. The difficulty comes with the realization that when the state drafts a district boundary to protect the coalitional interests of a group, the state simultaneously selects a voting classification for the individual based on that group interest. The line is drawn and the voter is classified. Shaw v. Reno stands for the proposition that where the line drawn is “so irrational on its face that it can be understood only as an effort to segregate voters ... because of their race ...,” 509 U.S. at-, 113 S.Ct. at 2832 then the state has crossed the line separating the proper from the improper state recognition of coalitional voting rights. In such a case the individual’s equal protection right not to be subject to a voter eligibility classification designed to segregate the individual into a district based on race predominates over the state’s legitimate interest in protecting the coalitional voting rights of others.
The Court in Shaw v. Reno defined the line that separates the permissible from the impermissible state recognition of coalitional voting rights with its quotation of the opinion of Justice White, joined by Justices Stevens and Rehnquist, in United Jewish Organizations v. Carey, 430 U.S. 144, 168, 97 S.Ct. 996, 1011, 51 L.Ed.2d 229 (1977):
“[W]e think it ... permissible for a State, employing sound districting principles ' such as compactness and population equality, to attempt to prevent racial minorities from being repeatedly outvoted by creating districts that will afford fair representation to the members of those racial groups who are sufficiently numerous and whose residential patterns afford the opportunity of creating districts in which they will be in the majority.”
Shaw v. Reno, 509 U.S. at-, 113 S.Ct. at 2829 (quoting UJO, 430 U.S. at 168, 97 S.Ct. at 1011) (emphasis added).4 This opinion of Justice White in UJO as endorsed by the majority in Shaw v. Reno defines the nature of a Fourteenth Amendment individual voting rights equal protection claim. Voting district classifications which group voters on the basis of race while adhering to the traditional districting principles announced by Justice White in UJO must be challenged if at all based on the vote “dilution” principles embodied in such cases as Rogers v. Lodge, 458 U.S. 613, 102 S.Ct. 3272, 73 L.Ed.2d 1012 (1982) (at large election challenged under the Fourteenth and Fifteenth Amendments) and Reynolds v. Sims, 377 U.S. 533, 555 & n. 29, 84 S.Ct. 1362, 1378 & n. 29, 12 L.Ed.2d 506 (1964) (district reapportionment challenged under the Fourteenth Amendment).5 When the state makes voting district classifications which do not adhere to traditional districting principles, then the use of districting by the state to protect coalitional interests by segregating voters on the basis of race states a claim for a prima facie violation of the Fourteenth Amendment. However, as demonstrated by the evidence in this case viewed in the light most favorable to the plaintiffs, such *1039is not the case here. Consequently, the Court’s reliance on Shaw v. Reno is misplaced.
The plaintiffs’ claim that the reapportionment of the eight challenged house districts6 constitutes racial gerrymandering under Shaw v. Reno is devoid of proof. Once again, it is helpful to recall the advice of Bernard Grofman, a national expert on apportionment issues as they relate to minority interests: “One approach to eliminating or reducing gerrymandering is through statutory or state constitutional provisions that strictly implement formal criteria such as compactness, equal population, and maintenance of the integrity of political subunits.” Quilter v. Voinovich, 794 F.Supp. 695, 704 (Dowd, J., dissenting).
The Ohio constitutional provisions mirror Grofman’s advice. Moreover, the apportioning of Ohio has produced a system whereby blacks are successful in electing members of their race to the Ohio General Assembly in impressive numbers.
The plaintiffs’ claim that the 1991 reapportionment of Ohio constitutes racial gerrymandering fails at the outset because the plaintiffs are unable to point to any house district in Ohio where the boundaries of the district can be explained solely on the basis of race. The only such attempt, i.e., to describe a district as “bizarrely drawn,” was made by the plaintiffs’ sole witness. Dr. Gordon Henderson pointed to the northwest portion of House District 38 as constituting a “moose head” or a “hand with two fingers showing.” Henderson contended that the division of House Districts 38 and 39 with the so-called “moose head” was not explainable by the Ohio Constitution but was done to pick a significant number of black voters and put them in District 38. In fact, and as demonstrated by the defendants and not contested, the “moose head” followed, the boundary lines of the City of Dayton as required by the Ohio Constitution.
In my view, Amendment D, as it relates to the eight challenged districts before the Court, reflects adherence to traditional dis-tricting principles of compactness, contiguity and respect for the integrity of political subdivisions inherent in Article XI of the Ohio Constitution. Given the major population shifts which occurred during the last decade in the State of Ohio, most of the districts established in 1981 could not be retained under Article XI, § 7(D). Further, the requirements of Article XI, §§ 8, 9 and 10 take precedence over those of § 7(D) and preclude the retention of most of the 1981 districts.
It is also my view that the eight challenged districts are not “extremely irregular,” “highly irregular,” “so irrational” or “bizarre” as to be only attributable to race-based line-drawing for the purpose of segregating the races. Rather, they are regularly drawn, compact, contiguous and geographically cohesive as required by Article XI of the Ohio Constitution.
Since “irregularity” is a somewhat subjective matter, I find that even if one were to find irregularity in the boundaries of those districts, it can be explained with reference to the boundaries of political subdivisions, in conjunction with the populations of those various subdivisions. The split of certain communities results from the fact that these communities exist geographically in nonconti-*1040guous sections. In addition, in some instances, changes in the ward and precinct boundaries, coupled with changes in population, contribute to what some might judge to be “unusual” district boundaries.
Although there may have been other constitutionally-permissible ways of drawing these districts, the Board, by drawing them as it did, has not engaged in racial gerrymandering and has not violated the Equal Protection Clause of the United States Constitution.
Given the narrow construction and limited application of Shaw v. Reno, combined with absence of any demonstrable evidence that the boundaries of the House Districts are so bizarre as to be explainable on the basis of race alone, the defendants are entitled to judgment on the plaintiffs’ Equal Protection Claim because of a failure of proof on the part of the plaintiffs.7
III. THE PROOF OFFERED IN SUPPORT OF THE SECOND AMENDED COMPLAINT IS IN REALITY A THINLY DISGUISED ATTEMPT TO REVISIT THE DILUTION ISSUE ALREADY ADVERSELY DECIDED TO THE PLAINTIFFS BY THE SUPREME COURT’S DECISION.
As indicated in the brief submitted by the Justice Department, the plaintiffs’ Second Amended Complaint presents a Shaw v. Reno claim “in only the most cursory manner.” Moreover, as predicted by the Justice Department, the plaintiffs offered precious little evidence that the challenged house districts were so irregular that they were explainable solely in racial terms. To the contrary, and in keeping with the mandates of the Ohio Constitution, the legislative districts look quite regular and compact. In contrast to a Shaw v. Reno claim, which was offered as the basis for granting the motion to file the Second Amended Complaint, the testimony offered is a thinly disguised attempt to renew the dilution claim by offering it in a Shaw garment.
The Second Amended Complaint focused on eight House Districts for being so irregular as to be explained on race alone. The eight districts, as configured by Amendment D, are composed as follows, with the first number being the percentage of black population in each district and the second number being the percentage of black voting age population in that district:
1) House District 21 (Franklin County)— 54.30% and 48.30%.
2) House District 22 (Franklin County)— 44.68% and 40.98%.
3) House District 30 (Hamilton) — 55.98% and 52.72%.
4) House District 31 (Hamilton) — 49.16% and 43.13%.
5) House District 38 (Montgomery)— 44.47% and 41.56%.
6) House District 39 (Montgomery)— 40.69% and 36.71%.
7) House District 44 (Summit) — 43.07% and 39.86%.
8) House District 49 (Lucas) — 49.99% and 46.42%.
In only one of the challenged districts is there a majority of black voters. There is nothing in the challenged districts which remotely approaches the political apartheid fear which appears to be the motivating factor in Shaw v. Reno, 509 U.S. at-, 113 S.Ct. at 2827. In reality, the plaintiffs seek an expansion of Shaw v. Reno to include any reapportionment plan that is race-conscious and, in so doing, to expand the realm of judicial supervision to every reapportionment plan. Here, the plaintiffs wish to apportion the black voters not to insure the election of additional candidates of choice for blacks, as is the motive behind much of the Voting Rights litigation, but to have the black voters distributed in such a fashion that they will have maximum voting power. That is a dilution claim rather than a Shaw v. Reno claim. I dissent for the additional reason that the majority’s opinion constitutes a renewed attempt to reapportion to maximize black voting power, a remedy rejected by the Supreme Court in this case.
*1041IV. ASSUMING ARGUENDO THAT PLAINTIFFS HAVE ESTABLISHED A PRIMA FACIE CASE OF AN EQUAL PROTECTION VIOLATION, THE PROOF OFFERED BY THE DEFENDANTS IN SUPPORT OF AMENDMENT D ENTITLES THE DEFENDANTS TO JUDGMENT UNDER A STRICT SCRUTINY EVALUATION.
As my colleagues in the majority have concluded, under Equal Protection jurisprudence a reapportionment plan that classifies citizens on the basis of race, even though not explicitly, requires strict scrutiny; that is, the plan can be upheld only if it is narrowly tailored to further a compelling state interest. Shaw v. Reno, 509 U.S. at-, 113 S.Ct. at 2825. The Supreme Court made clear that even if a racial gerrymander is done for the “benign” purpose of enhancing minority voting strength, it must be reviewed with strict scrutiny. Shaw v. Reno, 509 U.S. at-, 113 S.Ct. at 2830.
The Supreme Court, however, did not identify the threshold level of racial consideration that is necessary before a redistricting plan is characterized as a racial gerrymander subject to strict scrutiny. The Court defined “racial gerrymandering” in redistricting as “the deliberate and arbitrary distortion of district boundaries ... for [racial] purposes.” Shaw v. Reno, 509 U.S. at-, 113 S.Ct. at 2823 (quoting Davis v. Bandemer, 478 U.S. 109, 164, 106 S.Ct. 2797, 2826, 92 L.Ed.2d 85 (1986) (Powell, J., concurring in part and dissenting in part)). That definitions seems not particularly enlightening in view of the apparent conflict of meaning between “deliberate” and “arbitrary” actions. The majority has devoted a considerable amount of time trying to find in Shaw’s progeny an answer to the “trigger” question.8 However, since fundamental rights are at stake here (i.e., voting rights and equal rights), I simply take the view that caution requires strict scrutiny,9
The eight challenged districts will withstand strict scrutiny if they were drawn to meet a compelling state interest and if they were narrowly tailored to accomplish that goal. The State of Ohio has a compelling interest in complying with Article XI of its Constitution,10 requiring compact and contiguous districts which respect boundaries of political subdivisions. See, Reynolds v. Sims, 377 U.S. 533, 578, 84 S.Ct. 1362, 1390, 12 L.Ed.2d 506 (1964), cited in Shaw v. Reno, 509 U.S. at-, 113 S.Ct. at 2826, for the proposition that interests such as these are legitimate. See also, Wright v. Rockefeller, 376 U.S. 52, 84 S.Ct. 603, 11 L.Ed.2d 512 (1964) (where racial groups are highly concentrated in certain communities,- districts which likewise concentrate those racial *1042groups may reflect wholly legitimate purposes).
The State of Ohio also has the compelling state interest of complying'with the Voting Rights Act.11 As a matter of fact, at the time of the reapportionment under scrutiny here, the case of Armour v. State of Ohio, 775 F.Supp. 1044 (N.D.Ohio 1991) had just made that clear. Armour was a challenge brought by black voters, after the 1981 reapportionment, claiming that the line drawn between two districts in Mahoning County split and diluted black voting strength in that community. Armour found that there was a history of discrimination against blacks such that blacks were deprived of an opportunity for effective participation in the democratic process. Id., at 1058-59. The court further found that there was racial bloc voting and that blacks were unable to elect candidates of their choice. Id. The Armour decision was issued on September 4, 1991, a mere month before the 1991 Reapportionment Plan was due. For that reason, the court did not order that the districts be redrawn. However, it did retain jurisdiction to see what would happen with the districts in the 1991 Plan.
The defendants here were without a doubt aware of the Armour decision which required the Board to consider race when drawing lines. In a strange twist, the defendants having done what they were effectively ordered to do by the Armour court, the majority now levels a charge of “race motivation.” It seems there is no way to win and no clear guidance for persons in the defendants’ position.
V. REMEDY.
The opinion of my colleagues declares that the apportionment of black voters in the eight legislative districts in Hamilton, Franklin, Montgomery, Summit and Lucas Counties is unconstitutional in the context of the Equal Protection Clause of the Fourteenth Amendment. However, the opinion fails to declare the contours of the remedy. Also, absent a remedial order, it would appear that there is no definitive judicial action from which the defendants could appeal. Assuming that the majority has not chosen to engage in rendering an advisory opinion, it would seem that the public officials charged with running the next election scheduled for 1996, the voters, and the potential candidates for the next election to the General Assembly, should be given some guidance on what happens next.12 In addition, guidance is needed to reconcile the majority opinion with Armour. For example, under the teaching of Armour, it was acceptable to put 35% of the black voting age population into one district rather than split the blacks into two districts having 11% and 24% blacks, respectively. In Armour, that percentage of black voters was not considered packing and, in fact, was required to avoid minority vote dilution. In the instant case, where House District 39 in Montgomery County contains 36.71% black voting age population, the majority calls that impermissible “packing.”
Presumably, the majority will eventually enter a Rule 54 final judgment and that judgment will undoubtedly delineate in considerable detail exactly what relief the plaintiffs are awarded. I also presume that the judgment entry will provide some guidance regarding deadlines and time lines in view of the upcoming primary and general elections. I reserve the right to comment on any such judgment after it is entered.
VI. CONCLUSION.
In summary, I respectfully dissent for the following reasons:
1. A majority of this Court erred in granting the plaintiffs’ motion to file a Second Amended Complaint which action was contrary to and in excess of the narrow limits of the remand from the Supreme Court.
*10432. The majority’s expansive interpretation of the narrow teachings of Shaw v. Reno, if unchallenged, effectively converts the reapportionment process as mandated by the Ohio Constitution into a judicial exercise with no guidelines for the unprecedented exercise of federal judicial power.
3. In the event the opinion in Shaw v. Reno does provide, as my colleagues contend, that the state violates the Equal Protection Clause where race is a substantial and motivating factor in drawing boundary lines for reapportionment processes, the plaintiffs nevertheless have failed to prove that the race-conscious concerns of the majority members of the Ohio Reapportionment Board constituted a substantial and motivating factor in the drawing of the boundary lines for the eight challenged districts.
4. In the event the opinion in Shaw v. Reno does allow for, as my colleagues contend, the requirement that the state must demonstrate a compelling interest in the reapportionment of a legislative district where it is found that race was a substantial and motivating factor in the drawing of the boundary lines of the challenged district, I find that the state has demonstrated such a compelling interest, i.e., compliance with the Voting Rights Act and the provisions of the Ohio Constitution which deal with reapportionment.
5. The decision of the majority fails to establish, for the purpose of guidance, what constitutes “dilution” as opposed to “pacldng” in the distribution of black voters into districts in highly urbanized counties in Ohio consistent with the reapportionment mandates of the Ohio Constitution.
6. The majority opinion of the Court is devoid of guidelines to direct state officials in the reapportionment process so as to, on the one hand, avoid offending the Voting Rights Act as interpreted by the decision in Armour v. State of Ohio and, on the other hand, avoid offending the Equal Protection Clause of the Fourteenth Amendment given the pronouncements of the majority in this case which reject that “bizarrely-drawn lines” are a condition of proof to an equal protection claim.
APPENDIX A
FINDINGS OF FACT
1. The 1991 Apportionment Board (the Board) consisted of defendants, Governor George V. Voinovich, Secretary of State Robert A. Taft, Jr., and Ohio Senate President Stanley J. Aronoff, and two of the plaintiffs, Auditor of State Thomas E. Ferguson and Speaker Pro Tempore of the Ohio House of Representatives Barney Quilter. (Report of James R. Tilling, p. 2) (Tilling Report).a
2. On August 22, 1991, the Board appointed defendant James R. Tilling (Tilling), the then Chief Executive Officer of the Ohio Senate, as its Secretary. (Tilling Report, p. 2).b
3. Tilling has a Bachelor of Science degree in Social Sciences from Clarkson University and a Masters Degree in Political Science from the University of Illinois, with a major in urban and metropolitan politics; in addition, he has completed course work toward a doctorate. He is a former professor of political science at Ohio University where he taught from 1969-1976. (Tilling Report, pp. 2-3). During the four years prior to the convening of the Board, Tilling served on the Task Force of the National Conference of State Legislators (NCSL), a bipartisan group of legislators, legislative staff, and members of other interested groups from all fifty states. (Transcript of Proceedings, November 17, 1994, Docket No. 312 [TR-2], p. 197; Tilling Report, p. 3).
4. Voinovich, Taft, and Aronoff directed Tilling to draft and submit an apportionment plan which complied with the Ohio Constitution, the United States Constitution, and the Voting Rights Act, 42 U.S.C. § 1973, et seq. (TR-2, pp. 207-208). Pursuant to this authority, Tilling drafted the 1991 Apportionment Plan, including Amendment D. (Tilling Report, p. 2).
*10445. Tilling testified that by the Fall of 1990 he had developed a good understanding of the legal issues involved in re-districting and had become sensitized to those issues. (TR-2, p. 198). Among those issues was concern for the Fourteenth and Fifteenth Amendments to the United States Constitution, the Voting Rights Act and Ohio’s constitutional requirements. (TR-2, p. 199).
6. Tilling testified that, in the course of his work on the NCSL Task Force, it was made clear to him by various groups representing minorities that the current interpretation of the Voting Rights Act was that, first, there should be no attempt to dilute minority voting strength and, second, every opportunity should be taken to increase minority voting strength. (TR-2, p. 201).
7. Article XI of the Ohio Constitution (Article XI or Art. XI) dictates the basic method for apportioning the State of Ohio for members of the General Assembly.c
8. The method for apportionment found in Article XI includes a framework not only for an orderly succession for apportionment (Art. XI, § 10), but also for principles of population equality (Art. XI, § 3), compactness, contiguity and geographical cohesion (Art. XI, § 7(A)), and respect for the boundaries of political subdivisions and communities of interest (Art. XI, §§ 7(B), 7(C), 8, 9 and 10).
9. The first requirement in the constitutionally-defined apportionment process is to determine the ideal population for a district by dividing the State’s population by 99, the number of house seats. (Art. XI, § 2). In 1991, using the most recent federal decennial census information, that ideal mathematical number was 109,567. (Tilling Report, ¶ 6).
10. The Ohio Constitution specifies that the population of any house district cannot be less than 95% nor more than 105% of the ideal population number. (Art. XI, § 3). In 1991, that range in population was from 104,-089 to 115,045. (Transcript of Proceedings, November 16, 1994 [TR-1], p. 78) (Docket No. 311).
11. The Ohio Constitution also requires that if a county, or part of a county, is not large enough to meet the population requirement of Section 3, the district must be formed by combining governmental units, giving preference in the following order: counties, townships, municipalities, and city wards. (Art. XI, § 7(B)).
12. Where a county or political subdivision is too large to comply with the Section 3 population requirement, the Ohio Constitution requires that the excess population be split off along geographical lines, giving preference in order as follows: township, city ward, city, and village. Where division is necessary, only one unit may be divided between two districts. (Art. XI, § 7(C)).
13. Article XI, § 10 provides the sequence for creating and numbering house districts. The first step is to designate the counties which are either mandatorily or permissively entitled to be constituted as single member districts. (Art. XI, §§ 10(A) and 10(B)). In 1991, four counties (Allen, Warren, Columbiana and Wood) were in the mandatory category and three counties (Ash-tabula, Fairfield and Wayne) were in the permissive category. (Tilling Report, ¶¶ 12, 13). The majority of the Apportionment Board elected to designate Fairfield, Wayne and Ashtabula as single member districts.
14. The next step is to create districts out of whole counties, beginning with the county having the largest population, where obviously more than one house district will be allocated, and fixing the boundaries for the appropriate number of house districts. In this process, the remaining territory in any county must be combined with adjoining territory outside the county before proceeding to combine the remaining territory of the state into representative districts.d (Art. XI, § 10(C)). *1045After the apportionment is completed for the most populous county, then the process moves to the next most populous county and continues in that fashion until all counties entitled to more than a single district have been accommodated. In Ohio, which has 88 counties, a substantial majority of the house districts are contained in. the 26 most populous counties. House Districts 8 through 81 were created in this manner. (Tilling Report, ¶ 14).
15. Once the process has been completed with respect to counties entitled to more than one district, the apportionment of the remainder of the State is accomplished by following the provisions of Article XI, Section 10(D). Under this provision, the 62 counties which had a 1990 population number less than 90% of the ideal number of 109,567 were combined with other counties to create House Districts 82 through 99. (Tilling Report, ¶ 16).
16. Amendment D, also referred to as the 1992 Plan, is the currently effective version of the Apportionment Plan. Amendment D was effective during the 1992 and 1994 Ohio elections. (Joint Stip., Docket No. 305, ¶ 3).e
17. The Ohio Supreme Court has previously held that the Plan complies with the requirements of Article XI. Voinovich v. Ferguson, 63 Ohio St.3d 198, 586 N.E.2d 1020 (1992).f
18. Between 1980 and 1990, the total population of Ohio remained virtually the same, with the State gaining only 50,000 people. However, there were significant population shifts within the State; specifically, there was a shift from the Northeast quadrant to the Central and Southwest portions, particularly to Franklin, Delaware, Union and Madison Counties. There also occurred a shift from Cincinnati and Hamilton County to Butler, Clermont and Warren Counties. Cuyahoga County lost one entire house district in population (109,000 people), while Franklin County gained one entire house district. Franklin County replaced Hamilton County as the second most populous county of the State. There were also significant population shifts from the inner cities to the suburbs, as well as changes in municipal corporation, ward and precinct boundaries.g (Tilling Report, ¶ 42-43).
19. In Ohio, significant minority populations are concentrated in the major urban counties. These populations are geographically compact and contiguous. (Tilling Report, ¶ 61, 65).h
20. The plaintiffs have leveled a challenge against the formation of House Districts 21, 22, 30, 31, 38, 39, 44 and 49.i All of these districts are located in Ohio’s major urban counties. (Tilling Report, ¶ 63).
21. Handwritten notes made by Tilling in the process of drafting Amendment C to the 1991 Plan reflect his step by step thought process in the line drawing. (Tilling Notes).j
22. Plaintiffs have challenged House Districts 21 and 22 in Franklin County.k
23. As regards H.D. 21, Tilling’s notes indicate that he would first “draw minority *1046districts” and that he would “avoid primarily white Bexley and Whitehall.” (Tilling Notes on H.D. 21).
24. As configured in Amendment D, H.D. 21 contains a population of 108,859 consisting of the following political subdivisions:
Franklin County, OH
02 Columbus City—
Fifty-sixth Ward—
Twenty-third Ward—
25096023A Precinct A
25096023B Precinct B
25096023E Precinct E
25096023G Precinct G
25096023H Precinct H
Twenty-fifth Ward—
Twelfth Ward—
Thirteenth Ward—
Sixteenth Ward—
Seventeenth Ward—
Twenty-sixth Ward—
Forty-first Ward—
Sixth Ward—
Seventh Ward—
Eighth Ward—
15 Clinton Township—
(No Wards)
25M020B121531 Clinton B
21 Mifflin Township—
(Defendants’ Supplemental Exhibits, Vol. I, Exhibit C).
25. As H.D. 21 is configured in Amendment D, blacks are 54.30% of the total population. The black voting age population of H.D. 21 is 48.30%. (Defendants’ Supplemental Exhibits, Vol. I, Exhibit DD).
26. H.D. 21 is bordered by H.D. 26 and H.D. 27 on the north, H.D. 23 on the west, H.D. 22 on the south, and H.D. 25 on the north and east.
27. The boundaries of H.D. 21 are partially coterminous with the boundaries of the City of Columbus, which boundaries resulted from irregular annexation.1 Clinton Township, part of which is in H.D. 21, consists of geographically non-contiguous sections. (TR-2, p. 225, 229-230; Tilling Report, ¶ 37c; Plaintiffs’ Exhibit 1; Defendants’ Supplemental Exhibit MM (Docket No. 319)). Ward 23, part of which is in H.D. 21, also consists of non-contiguous sections. (Tilling Report, ¶ 37c; Plaintiffs’ Exhibit 1, Defendants’ Supplemental Exhibit MM).
28. In the November 3,1992 general election, conducted under Amendment D, a black Democrat prevailed in H.D. 21, there being no challenger. (Defendants’ Supplemental Exhibits, Vol. I, Exhibits GG and JJ).
29. In the November 8,1994 general election, conducted under Amendment D, a black Democrat prevailed in H.D. 21 over a white candidate. (Defendants’ Supplemental Exhibits, Vol. I., Exhibits KK and LL).
30. As regards H.D. 22, Tilling’s notes indicate that he would “create as close to a majority-minority district as possible” and “avoid Bexley and Whitehall, which are mostly white areas.” (Tilling Notes on H.D. 22).
31. As configured in Amendment D, H.D. 22 contains a population of 110,848 consisting of the following political subdivisions:
Franklin County, OH
02 Columbus City—
First Ward—
Second Ward—
Thirty-fifth Ward—
Third Ward—
Fourth Ward—
Fiftieth Ward—
Fifty-first Ward—
Fifty-fifth Ward—
Fifth Ward—
Twenty-seventh Ward—
25096027A Precinct A
25096027B Precinct B
25096027C Precinct C
25096027F Precinct F
25096027G Precinct G
25096027H Precinct H
250960271 Precinct I
25096027J Precinct J
25096027K Precinct K
25096027M Precinct M
Twenty-eighth Ward—
Forty-fourth Ward—
Forty-seventh Ward—
Forty-eighth Ward—
Madison Township, Precinct 0—
Portion on the inside of I-270
*1047(Defendants’ Supplemental Exhibits, Vol. I, Exhibit C).
32. As H.D. 22 is configured in Amendment D, blacks are 44.68% of the total population. The black voting age population of H.D. 22 is 40.98%. (Defendants’ Supplemental Exhibits, Vol. I, Exhibit DD).
33. H.D. 22 is bordered by H.D. 21 on the north, H.D. 23 on the south and west, H.D. 24 on the south and east, and H.D. 25 on the north and east.
34. Madison Township,m part of which is in H.D. 22, consists of geographically non-contiguous sections. (TR-2, p. 232; Tilling Report, ¶ 37c; Plaintiffs’ Exhibit 1, Defendants’ Supplemental Exhibit MM).
35. In the November 3,1992 general election, conducted under Amendment D, a black Democrat prevailed in H.D. 22 over a white candidate. (Defendants’ Supplemental Exhibits, Vol. I, Exhibits GG and JJ).
36. In the November 8,1994 general election, conducted under Amendment D, a black Democrat prevailed in H.D. 22 over another black candidate and a white candidate. (Defendants’ Supplemental Exhibits, Vol. L, Exhibits KK and LL).
37. Plaintiffs have challenged House Districts 30 and 31 in Hamilton County.n
38. As regards H.D. 30, Tilling’s notes indicate that he would “start[ ] with majority-minority districts” and “includ[e] the greatest portion of the eastern segment of black population.” (Tilling Notes on H.D. 30).
39. As configured in Amendment D, H.D. 30 contains a population of 108,885 consisting of the following political subdivisions:
Hamilton County, OH
03 Cincinnati City—
Thirteenth Ward—
Fifteenth Ward—
Seventh Ward—
Fourteenth Ward—
Second Ward—
3108652A Precinct A
3108652B Precinct B
3108652C Precinct C
3108652D Precinct D
3108652E Precinct E
3108652F Precinct F
3108652G Precinct G
3108652H Precinct H
31086521 Precinct I
3108652L Precinct L
3108652M Precinct M
3108652P Precinct P
3108652R Precinct R
3108652T Precinct T
3108652U Precinct U
3108652V Precinct V
3108652W Precinct W
Third Ward—
15 St. Bernard City—
24 Columbia Township—
(No Wards)
31M020B Precinct B
31M020C Precinct C
31M020D Precinct D
31M020E Precinct E
27 Elmwood Township—
30 Golf Manor Township—
39 Springfield Township—
(No Wards)
31M075DD Precinct DD
(Defendants’ Supplemental Exhibits, Vol. I, Exhibit C).
40. As H.D. 30 is configured in Amendment D, blacks are 55.98% of the total population. The black voting age population of H.D. 30 is 52.72%. (Defendants’ Supplemental Exhibits, Vol. I, Exhibit DD).
41. H.D. 30 is bordered by H.D. 36 on the north and east, H.D. 31 and H.D. 21 on the west, and H.D. 37 on the south.
42. In H.D. 30, Columbia and Springfield Townships both consist of geographically *1048non-contiguous sections. (TR-2, p. 235; Tilling Report ¶ 37d; Plaintiffs’ Exhibits 6 and 7; Defendants’ Supplemental Exhibit NN).
43. In the November 3,1992 general election, conducted under Amendment D, a black Democrat prevailed in H.D. 30 over two white candidates. (Defendants’ Supplemental Exhibits, Vol. I, Exhibits GG and JJ).
44. In the November 8,1994 general election, conducted under Amendment D, a black Democrat prevailed in H.D. 30 over another black candidate. (Defendants’ Supplemental Exhibits, Vol. I., Exhibits KK and LL).
45. As regards H.D. 31, Tilling’s notes indicate that he would “draw [a] second majority-minority district, using areas of black population.” (Tilling Notes on H.D. 30).
46. As configured in Amendment D, H.D. 31 contains a population of 105,573 consisting of the following political subdivisions:
Hamilton County, OH
03 Cincinnati City—
Twenty-third Ward—
Twenty-second Ward—
Tenth Ward—
Eleventh Ward—
Twelfth Ward—
Sixteenth Ward—
Seventeenth Ward—
Eighteenth Ward—
Sixth Ward—
Eighth Ward—
Ninth Ward—
39 Springfield Township—
(No Wards)
31M075L Precinct L
(Defendants’ Supplemental Exhibits, Vol. I, Exhibit C).
47. As H.D. 31 is configured in Amendment D, blacks are 49.16% of the total population. The black voting age population of H.D. 31 is 43.13%. (Defendants’ Supplemental Exhibits, Vol. I, Exhibit DD).
48. H.D. 31 is bordered by H.D. 35 on the north, H.D. 33 and H.D. 34 on the west, and H.D. 30, H.D. 32, and H.D. 37 on the east.
49. Springfield Township, partially in H.D. 31, consists of geographically non-eon-tiguous sections. (TR-2, p. 234-235; Plaintiffs’ Exhibits 6 and 7; Defendants’ Supplemental Exhibit NN).
50. In the November 3,1992 general election, conducted under Amendment D, a black Democrat prevailed in H.D. 31 over two white candidates. (Defendants’ Supplemental Exhibits, Vol. I, Exhibits GG and JJ).
51. In the November 8,1994 general election, conducted under Amendment D, a black Democrat prevailed in H.D. 31 over another black candidate and a white candidate. (Defendants’ Supplemental Exhibits, Vol. I., Exhibits KK and LL).
52. Plaintiffs have challenged House Districts 38 and 39 in Montgomery County.o
53. As regards H.D. 38, Tilling’s notes state that he would create a “majority-minority district[.]” (Tilling Notes on H.D. 38).
54. As configured in Amendment D, H.D. 38 contains a population of 106,899 consisting of the following political subdivisions:
Montgomery County, OH
02 Dayton City—
Tenth Ward—
Eleventh Ward—
First Ward—
Fifth Ward—
5711105A Precinct A
5711105B Precinct B
5711105D Precinct D
5711105F Precinct F
5711105G Precinct G
57111051 Precinct I
Sixth Ward—
Seventh Ward—
Eighth Ward—
Twelfth Ward—
Thirteenth Ward—
Fourteenth Ward—
Fifteenth Ward—
57111015A Precinct A
57111015B Precinct B
57111015C Precinct C
57111015D Precinct D
57111015E Precinct E
57111015F Precinct F
57111015G Precinct G
57111015H030537 Precinct H
57111015H030636 Precinct H
571110151030636 Precinct I
Nineteenth Ward—
Twentieth Ward—
18 Jefferson Township
*1049(Defendants’ Supplemental Exhibits, Vol. I, Exhibit C).
55. As H.D. 38 is configured in Amendment D, blacks are 44.47% of the total population. The black voting age population of H.D. 38 is 41.56%. (Defendants’ Supplemental Exhibits, Vol. I, Exhibit DD).
56. H.D. 38 is bordered by H.D. 39 on the north and east, H.D. 40 on the west, H.D. 41 on the south, and H.D. 42 on the east.
57. In H.D. 38, the boundary lines are partially coterminous with the municipal boundaries of the City of Dayton. (TR-2, p. 238; Tilling Report, ¶ 37e; Plaintiffs’ Exhibit 2).
58. In the November 3,1992 general election, conducted under Amendment D, a black Democrat prevailed in H.D. 38 over a white candidate. (Defendants’ Supplemental Exhibits, Vol. I, Exhibits GG and JJ).
59. In the November 8,1994 general election, conducted under Amendment D, a black Democrat prevailed in H.D. 38 over another black candidate and a white candidate. (Defendants’ Supplemental Exhibits, Vol. I., Exhibits KK and LL).
60. As regards H.D. 39, TOling’s notes state that he would “create an influence district with the highest possible minority vote” and that he would “[t]ake in Madison [Township], Trotwood, [and] portions of Harrison [Township].” (Tilling Notes on H.D. 39)).
61. As configured in Amendment D, H.D. 39 contains a population of 107,079 consisting of the following political subdivisions:
Montgomery County, OH
02 Dayton City—
Third Ward—
5711103A Precinct A
5711103B0303539 Precinct B
5711103C Precinct C
5711103D Precinct D
5711103E Precinct E
5711103F030540 Precinct F
5711103F030639 Precinct F
5711103G Precinct G
5711103H Precinct H
57111031 Precinct I
5711103J Precinct J
5711103K Precinct K
5711103L Precinct L
5711103M Precinct M
5711103N030540 Precinct N
5711103N030639 Precinct N
57111030 Precinct O
5711103P Precinct P
Fifteenth Ward—
571110151030537 Precinct I
Sixteenth Ward—
Seventeenth Ward—
Eighteenth Ward—
Twenty-first Ward—
Twenty-second Ward—
Fourth Ward—
Fifth Ward—
5711105C Precinct C
5711105E Precinct E
5711105H Precinct H
10 Trotwood City—
19 Madison Township—
20 Mad River Township—
(No Wards)
57M045B Precinct B
57M045E Precinct E
57M045F Precinct F
57M045K Precinct K
57M045S Precinct S
57M045T Precinct T
57M045U Precinct U
57M045W Precinct W
Harrison Township, Precinct C—
Only the non-eontiguous portion to East
(Defendants’ Supplemental Exhibits, Vol. I, Exhibit C).
62. As H.D. 39 is configured in Amendment D, blacks are 40.69% of the total population. The black voting age population of H.D. 39 is 36.71%. (Defendants’ Supplemental Exhibits, Vol. I, Exhibit DD).
63. H.D. 39 is bordered by H.D. 43 on the north, H.D. 40 on the north and west, and H.D. 38 and H.D. 42 on the south.
*105064. Some wards in H.D. 39 exist as non-contiguous portions of the City of Dayton. (TR-2, pp. 239-240; Tilling Report ¶376; Plaintiffs’ Exhibit 2).
65. In the November 3,1992 general election, conducted under Amendment D, a black Democrat prevailed in H.D. 39 over another black candidate. (Defendants’ Supplemental Exhibits, Vol. I, Exhibits GG and JJ).
66. In the November 8,1994 general election, conducted under Amendment D, a black Democrat prevailed in H.D. 39 over a white candidate. (Defendants’ Supplemental Exhibits, Vol. I, Exhibits KK and LL).
67. Plaintiffs have challenged House District 44 in Summit County.p
68. As regards H.D. 44, Tilling’s notes indicate that he would “try to maximize the minority voters in [Representative Vernon Sykes’] district,” including the “city of Akron, Wards 2, 3, 5 and parts of 1, 4, and 10.” (Tilling Notes on H.D. 44).
69. As configured in Amendment D, H.D. 44 contains a population of 104,538 consisting of the following political subdivisions:
Summit County, OH
01 Akron City—
Tenth Ward—
First Ward—
7700351A Precinct A
7700351B Precinct B
7700351C Precinct C
7700351D Precinct D
7700351E Precinct E
7700351G Precinct G
7700351H Precinct H
77003511 Precinct I
7700351L Precinct L
7700351M Precinct M
77003510 Precinct O
7700351P42 Precinct P
7700351P44 Precinct P
7700351Q Precinct Q
7700351R Precinct R
7700351S Precinct S
7700351T Precinct T
7700351U Precinct U
7700351V Precinct V
7700351W Precinct W
7700351X Precinct X
7700351Y42 Precinct Y
7700351Y44 Precinct Y
Second Ward—
Third Ward—
Fourth Ward—
(Defendants’ Supplemental Exhibits, Vol. I, Exhibit C).
70. As H.D. 44 is configured in Amendment D, blacks are 43.07% of the total population. The black voting age population of H.D. 44 is 39.86%. (Defendants’ Supplemental Exhibits, Vol. I, Exhibit DD).
71. H.D. 44 is bordered by H.D. 46 on the north, H.D. 45 on the west, H.D. 47 on the south, and H.D. 48 on the east.
72. In the November 3,1992 general election, conducted under Amendment D, a black Democrat prevailed in H.D. 44 over a white candidate. (Defendants’ Supplemental Exhibits, Vol. I, Exhibits GG and JJ).
73. In the November 8,1994 general election, conducted under Amendment D, a black Democrat prevailed in H.D. 44 over a white candidate. (Defendants’ Supplemental Exhibits, Vol. I., Exhibits KK and LL).
74. Plaintiffs have challenged House District 49 in Lucas County.q
75. As regards H.D. 49, Tilling’s notes state that he would “[d]raw minority district first, based upon minority population distribution display” and that he would “follow[ ] the black population concentration to Ward 6 [and] ... then ... add Hispanic voters.” (Tilling Notes on H.D. 49).
*105176. As configured in Amendment D, H.D. 49 contains a population of 105,798 consisting of the following political subdivisions:
Lucas County, OH
04 Toledo City—
Second Ward—
4842652K Precinct K
4842652L Precinct L
Fourth Ward—
Sixth Ward—
Tenth Ward—
Eighth Ward—
Thirteenth Ward—
Fourteenth Ward—
Seventeenth Ward—
(Defendants’ Supplemental Exhibits, Vol. I, Exhibit C).
77. As H.D. 49 is configured in Amendment D, blacks are 49.99% of the total population. The black voting age population of H.D. 49 is 46.42%. (Defendants’ Supplemental Exhibits, Vol. I, Exhibit DD).
78. H.D. 49 is bordered by H.D. 50 on the north and east, and H.D. 52 on the south and west.
79. In the November 3,1992 general election, conducted under Amendment D, a black Democrat prevailed in H.D. 49 over a white candidate. (Defendants’ Supplemental Exhibits, Vol. I, Exhibits KK and LL).
80. In the November 8,1994 general election, conducted under Amendment D, a black Democrat prevailed in H.D. 49 over another black candidate. (Defendants’ Supplemental Exhibits, Vol. L, Exhibits KK and LL).
81. Given the percentage of black population in the eight challenged districts, i.e., 54.30% (H.D. 21), 44.68% (H.D. 22), 55.98% (H.D. 30), 49.16% (H.D. 31), 44.47% (H.D. 38), 40.69% (H.D. 39), 43.07% (H.D. 44), and 49.99% (H.D. 49), the average percentage of black population in those districts is 47.79%. (Defendants’ Supplemental Exhibits, Vol. I, Exhibit DD).
82. Given the percentage of black voting age population in the eight challenged districts, i.e., 48.30% (H.D. 21), 40.98% (H.D. 22), 52.72% (H.D. 30), 43.13% (H.D. 31), 41.56% (H.D. 38), 36.71% (H.D. 39), 39.86% (H.D. 44), and 46.42% (H.D. 49), the average percentage of black voting age population in those districts is 43.71%. (Defendants’ Supplemental Exhibits, Vol. I, Exhibit DD).
83. There was one more minority representative and one more minority senator elected in 1992 under Amendment D than had last been elected under the 1981 Apportionment Plan, for a total of fifteen, as compared to thirteen, minority legislators. (TR-2, p. 256).
84. In the 1994 election, the same number of minority representatives was elected plus one additional senator, for a total of sixteen minority legislators. (TR-2, p. 260).
. The rulings challenged before the Supreme Court were reached in several incremental steps. On January 31, 1992, a majority of this Court, addressing only the federal statutory challenge, found in favor of the plaintiffs and ordered that the Board either redraft the Plan or demonstrate that the existing Plan was remedying a Section 2 violation. Quilter v. Voinovich, 794 F.Supp. 695 (N.D.Ohio 1992). I dissented. Subsequently, the Board presented to the Court its justification for the creation of majority-minority districts, along with certain ''technical” amendments to the Plan. The Board's Findings and Conclusions are on the record of this case at Docket No. 147, Exhibit A. They include findings that voting in Ohio is significantly racially polarized, that there is a history of official discrimination in Ohio affecting the rights of minorities to participate in the democratic process, that there is racial bloc voting, and that minorities have experienced racial barriers to effective participation in the democratic process in Ohio. (Docket No. 147, Exh. A, ¶¶ 99-100, 107-137). These findings were simply disregarded by the majority when, on March 10, 1992, it held once again that the Plan, as amended, violated the Voting Rights Act. The Court appointed a special master to prepare a *1035redistricting plan. Quilter v. Voinovich, 794 F.Supp. 756 (N.D.Ohio 1992). Again I dissented. Later, a majority of the Court found that the Plan also violated the Fourteenth and Fifteenth Amendments to the United States Constitution. Quilter v. Voinovich, No. 5:91CV2219, 1992 WL 677145 (N.D.Ohio Mar. 19, 1992). In that opinion, the majority specifically found that there were “three critical facts: the absence of racial bloc voting, the fact that black voters have been able to elect both black and white candidates of their choice, and the fact that such candidates have been elected over a sustained period of time.” Id. at *2. The Supreme Court never directly addressed these particular findings of the majority, other than to note them. See, Voinovich v. Quilter, 507 U.S. at 150-51, 113 S.Ct. at 1154. I, however, adhere to my original view that the defendants did properly justify a need to create majority-minority districts. Quilter v. Voinovich, 794 F.Supp. at 758 (Dowd, J., dissenting).
. This district court has gone to great lengths in the past five years to avoid any opportunity for lawyers to select the judge they wish to have adjudicate their lawsuit. The related case rule has been abolished and, consequently, even if a new case appears related to an existing case on another judge's docket, it cannot be shifted to the docket of the judge who drew the first case absent the consent of both judges. See, Local Rules 1:2.4(2) and 6:2.5(c). Moreover, one judge cannot transfer an unrelated case on his or her docket to another judge without the approval of the Chief Judge of the district. See, Local Rule 6:2.4. Consequently, had "new law suit” been filed challenging the reapportionment based on Shaw v. Reno, it could have been filed in either the Northern or Southern District of Ohio and it would have been assigned to a judge of that district. The provisions of 28 U.S.C. § 2284 would then have been invoked and the Chief Judge of the Circuit would have had the opportunity to determine anew which judges he wished to assign to the case.’ However, a majority of this Court, presumably unaware of or, as Circuit Judges, completely indifferent to the impact of the Court's Local Rules, elected to use their assignment to this three-judge panel to give the plaintiffs another bite at the apple.
. Of course where an election is held for a single political office such as with elections for a president, governor, mayor, or county executive, the district system and the at-large system are one in the same.
. Cf. also Karcher v. Daggett, 462 U.S. 725, 740-44, 103 S.Ct. 2653, 2663-65, 77 L.Ed.2d 133 (1982) (acknowledging that the state may vary from "one person, one vote” principles for "[a]ny number of consistently applied [nondiscriminatory] legislative policies ... [including] making districts compact, respecting municipal boundaries, preserving the cores of prior districts, and avoiding contests between incumbent Representatives,” and implicitly acknowledging that "preserving the voting strength of racial minority groups” might be one of those policies); Metro Broadcasting, Inc. v. FCC, 497 U.S. 547, 583-84, 110 S.Ct. 2997, 3018-19, 111 L.Ed.2d 445 (1990) (minorities have particular viewpoints worthy of protection in the effective exercise of their electoral franchise such that neither the Fourteenth nor the Fifteenth Amendments mandate any perse rule against using racial factors in districting and apportionment).
. The Court expresses no opinion on whether failure to abide by these traditional districting principles when creating voter eligibility qualifications on bases other than race states a claim under the Fourteenth Amendment. See generally Harper v. Virginia Bd. of Elections, 383 U.S. 663, 666, 86 S.Ct. 1079, 1081, 16 L.Ed.2d 169 (1966) ("Our cases demonstrate that the Equal Protection Clause of the Fourteenth Amendment restrains the States from fixing voter qualifications which invidiously discriminate.").
. Although the majority opinion accepts the plaintiffs' assertion that they are challenging the entire Plan, not just these eight districts I find that the Second Amended Complaint cannot reasonably be read to challenge any more than the eight specified districts. Paragraph 56 of the Second Amended Complaint alleges that “[t]he districts which have been modified solely on the basis of race include House Districts 31, 30, 22, 21, 38, 39, 44 and 49." (emphasis added). Plaintiffs take the position that these eight districts are merely illustrative of the racially gerrymandered districts. However, if the entire Plan were really being challenged, there would be no need to state that the Plan "included” these districts. It is a given that the Plan includes all of the Plouse Districts, these eight as well as those not specified. Furthermore, ¶ 55 of the Second Amended Complaint, which alleges that the defendants have drawn irregular districts "in numerous places throughout the state,” further supports, the interpretation that only certain districts are being challenged, not the entire Plan. Notwithstanding plaintiffs' present position, I would find that the Second Amended Complaint states a Shaw v. Reno claim only as regards the eight specified districts.
. The Court solicited an amicus brief from the Justice Department and that brief, in a more scholarly fashion than this dissent, arrives at the same conclusion.
. As the majority opinion has acknowledged, the Shaw v. Reno Court discussed the fact that, in the redistricting context, it is not mere race "consciousness” or "awareness” which triggers strict scrutiny. This is true because, when drawing district lines, the legislature is always aware of race, as well as other factors such as age, religion, economic status, and politician persuasion. The Supreme Court’s position is consistent with the long-recognized distinction between race-conscious, as opposed to race-based, decisions. See, e.g., Personnel Admin. of Mass. v. Feeney, 442 U.S. 256, 279, 99 S.Ct. 2282, 2291, 60 L.Ed.2d 870 (1979) (" ‘Discriminatory purpose’ ... implies more than intent as volition or intent as awareness of consequences” but rather implies "action at least in part 'because of,’ not merely 'in spite of,' its adverse effects upon an identifiable group.”).
As discussed at some length in the majority opinion, different courts since Shaw v. Reno have adopted different triggering tests. See, e.g., Johnson v. Miller, 864 F.Supp. 1354, 1372 (S.D.Ga.1994), probable jurisdiction noted, —— U.S.-, 115 S.Ct. 713, 130 L.Ed.2d 620 (1995) (race the "substantial or motivating consideration”); DeWitt v. Wilson, 856 F.Supp., 1409, 1413 (E.D.Cal.1994), petition for cert. filed, 63 U.S.L.W. 3127 (U.S. Aug. 8, 1994) (No. 94-275) (race "the sole criteria [sic]”); Shaw v. Hunt, 861 F.Supp. 408, 431 (E.D.N.C.1994), petition for cert. filed, 63 U.S.L.W. 3439 (U.S. Nov. 21, 1994) (Nos. 94-923, 94-924) (“ 'race-a-motivating-factor' triggering test”).
. The notes of James R. Tilling strongly suggest that he purposefully considered race when he drew the house district boundaries reflected in Amendment D and challenged here. Since citizens were, at least in certain parts of the State, classified by race, the eight challenged districts arguably must be subjected to strict scrutiny.
. There is no argument advanced that Article XI is facially in violation of the Equal Protection Clause. The plaintiffs have not challenged the constitutionality of Article XI.
. See, United Jewish Organizations, Inc. v. Carey, 430 U.S. 144, 161-168, 97 S.Ct. 996, 1007-1011, 51 L.Ed.2d 229 (1977) (plurality opinion); id. at 179-180, 97 S.Ct. at 1017 (Stewart, J., concurring in the judgment).
. Since the 1996 Ohio Primary Election has been moved up to March 19, 1996, partisan candidates must declare their candidacy by no later than January 19, 1996. This time line could easily he put in jeopardy.
. A copy of the Tilling Report is found at Defendants’ Supplemental Exhibits, Vol. I, Exhibit A.
. Tilling was not himself a member of the Board. (Transcript of Proceedings, November 17, 1994, p. 274).
. A true and correct copy of Article XI of the Ohio Constitution is found at Defendants' Supplemental Exhibits, Vol. I, Exhibit G. (Joint Stip., Docket No. 305, ¶ 4).
. For example, Cuyahoga County, the most populous county, is entitled to 12.88 districts. Quilter v. Voinovich, 794 F.Supp. 695, 705 (N.D.Ohio 1992). Twelve of those districts must be contained wholly within Cuyahoga County and the thirteenth district will, of necessity, spill over into an adjoining county. Selecting a portion of the county for "spill-over" is governed by Article XI, § 7(C).
. The original 1991 Apportionment Plan, as amended by Amendment C, has not been used in any election and is no longer the current plan.
. A copy of this opinion is found at Defendants’ Supplemental Exhibits, Vol. I, Exhibit D.
. Several counties experienced significant changes in wards, for example: Franklin County went from 58 wards to 74; Lucas County went from 24 wards to 23; and Summit County ward boundaries were changed dramatically. (Tilling Report, ¶ 51).
. Maps showing the 1990 census concentration of voting-age blacks in each of the counties where districts are challenged are found at Defendants' Supplemental Exhibits, Vol. I, Exhibit T (Franklin County, Districts 21 and 22); Exhibit V (Hamilton County, Districts 30 and 31); Exhibit X (Montgomery County, Districts 38 and 39); Exhibit Z (Summit County, District 44); and Exhibit BB (Lucas County, District 49).
. See, note 4, in the dissenting opinion.
. A copy of the notes is found at Plaintiffs' Prior Proceeding Trial Exhibits, Vol. 2 of 4, Exhibit 120.
. A map of the Franklin County House Districts, including District 21 and District 22, is found at Defendants’ Supplemental Exhibits, Vol. I, Exhibit U. A map showing the political subdivision boundaries is found in the same Volume at Exhibit II.
. Tilling pointed out that what, to an outsider, might appear to be an “unusual" boundary is actually the result of Franklin county's having been "subjected to rampant annexations for at least the last 20 years.” (TR-2, p. 225).
. Plaintiffs' expert, Dr. Gordon Henderson, criticized this District for containing only one precinct of Hamilton Township. However, it appears to me that this is an error and that Henderson intended to refer to the split of Madison Township. (TR-2, pp. 129-130).
. A map of the Hamilton County House Districts, including District 30 and District 31, is found at Defendants’ Supplemental Exhibits, Vol. I, Exhibit W. A map showing the political subdivision boundaries is found in the same Volume as Exhibit II.
. A map of the Montgomery County House Districts, including District 38 and District 39, is found at Defendants' Supplemental Exhibits, Vol. I, Exhibit Y. A map showing the political subdivision boundaries is found in the same Volume at Exhibit II.
. A map of the Summit County House Districts, including District 44, is found at Defendants’ Supplemental Exhibits, Vol. I, Exhibit AA. A map showing the political subdivision boundaries is found in the same Volume at Exhibit II.
. A map of the Lucas County House Districts, including District 49, is found at Defendants’ Supplemental Exhibits, Vol. I, Exhibit CC. A map showing the political subdivision boundaries is found in the same Volume at Exhibit II.