(Filed Feb. 9, 1990)
On December 4, 1989, we held unlawful the present plan of apportionment for the Arkansas General Assembly and directed the defendant Board of Apportionment to submit a new, lawful plan by January 15, 1990. 730 F.Supp. 196. On January 16, 1990 (the time being extended one day on account of a legal holiday), the Board submitted its new plan. On the next day, January 17, the plaintiffs, having obtained a further one-day extension from us, submitted an alternative remedy plan. Plaintiffs take exception to four of the districts proposed by the Board, two in the House and two in the Senate. We also have before us subsequent filings from both plaintiffs and defendants.
We now approve the plan submitted by the Board, except that it must be modified in accordance with plaintiffs’ objections with respect to House Districts (HD) 74 and 75 and Senate District (SD) 19 (SD 30 according to the Board’s numbering system). Plaintiffs’ objections with respect to their proposed SD 27 are overruled.
I. PENDING MOTIONS
Before dealing with the merits, we first address two pending motions. On January 25, 1990, a group of five black registered voters from Crittenden County filed a Motion for Leave to File Objections to Remedial Plans and to File Alternative Remedial Plan, or in the Alternative, to Intervene as Parties Plaintiff. These voters are James Wilburn, Christine Brownlee, James Walter Adams, Louise Evans, and the Rev. Robert *1197Nelson. And on February 1, 1990, the defendant Bill Clinton, Governor of Arkansas and Chairman of the Board of Apportionment, filed a Motion for Leave to File Memorandum of Fact and Law in Support of an Alternative Remedy Plan.
The motion of James Wilburn and others will be denied. They seek to object both to the plan submitted by the Board and to the plaintiffs’ alternative plan. Their objections are confined to one proposed district, the Senate District referred to as SD 30 in the Board’s plan and as SD 19 in the plaintiffs’ plan. Under the Board’s plan, SD 30 would have a black voting-age percentage (BVAP) of 55%. Plaintiffs’ proposed SD 19 would have a BVAP of 60.5%. The Wilburn petitioners propose changes in plaintiffs’ SD 19 that would increase its minority population. They say that plaintiffs’ SD 19 has a total black population of 64%,1 while their own proposed SD 19 would have a total black population of 66%. Their papers do not tell us what the BVAP of their proposed SD 19 would be, but it seems likely that it would be in the neighborhood of 61 or 62%.
These petitioners claim a right to be heard on two bases. First, they argue that, if a class action had been certified in this case, they would be class members and would have a right to be heard on any proposed remedy. The short answer to this contention is that this is not a class action. Plaintiffs’ motion for class certification was denied because it was untimely. Petitioners next argue, and with some justification, that the case is the functional equivalent of a class action. It affects the rights of all citizens in their part of the State, and their general interests are congruent with those of the plaintiffs. In the non-class-action context, this kind of interest is amply safeguarded by Fed.R.Civ.P. 24, which provides for intervention by non-parties who need to become parties to protect their interests. So, in the alternative, petitioners ask to intervene as parties plaintiff. Their request is for permissive intervention under Fed.R.Civ.P. 24(b).
Petitioners' motion for leave to intervene is denied as untimely. This case has been pending for more than a year. Petitioners appear to be politically active and knowledgeable citizens. Three of them are elected mayors of municipalities in Crit-tenden County, and another is a former volunteer deputy voter registrar. The last-named person, the Rev. Robert Nelson, was one of the witnesses for plaintiffs at the trial of this case. Certainly Mr. Nelson was well aware of the pendency of the case, the issues involved, and the potential effect of any order, and it is fair to assume that the other petitioners were too. Petitioners knew that our order of December 4 would require the formulation of a new plan, and that the Board would be holding public hearings to carry out our order. Presumably they had an opportunity to appear at these hearings, if they did not do so in fact. If intervention were to be allowed now, these proceedings would be seriously complicated and delayed. Filing for the party primaries opens on March 20, 1990. See Ark.Code Ann. § 7-7-203(c) (1987). It is important for legislative districts to be settled well in advance of that date, so election officials, candidates, and the public can understand and get used to the new system. If petitioners were allowed to come into the case now, time would have to be given to answer their complaint in intervention, and another trial would have to be held, because the complaint makes allegations of fact that, so far as we know, would be contested by other parties, either the Board or the plaintiffs. In all of the circumstances, we believe that we should exercise our discretion to deny petitioners’ motion.
The Governor’s motion, on the other hand, will be granted. As Chairman of the Board of Apportionment, he is already a party to this case. One purpose of his motion is simply to get before the Court the views which he expressed at meetings of the Board. The Governor dissented in part from the Board’s action adopting the plan that is now before us. His position *1198does not require us to decide any issues of fact not already in the case as a consequence of the Board’s plan and the plaintiffs’ objections. Therefore, no delay in final disposition would be occasioned. The defendant Clinton’s motion for leave to file a memorandum of fact and law in support of an alternative remedy plan is therefore granted. His substantive contentions will be considered at the appropriate place later in this opinion.
II. THE HOUSE
The Board’s House plan creates 21 new House districts, of which eight have black voting-age majorities. (The other 13 are created because of the ripple effect produced by the changes necessary to create majority-black districts.) The BVAP in the eight majority-black districts range from 53% in [¶] 80 to 64% in [¶] 82. Only one of the eight has a BVAP in excess of 58%, and that one, [¶] 82, is similar to existing [¶] 82, which already had a black-voting age majority and has been represented by a black State Representative since 1973.
Plaintiffs take exception to [¶] 74 and [¶] 75 as proposed. [¶] 74 as proposed has a BVAP of 58%, includes parts of Lee arid St. Francis Counties, and has a resident incumbent white State Representative. [¶] 75 as proposed has a BVAP of 56%, includes parts of Monroe and Phillips Counties, and also has a resident incumbent white State Representative. Plaintiffs say these percentages are too small to give black voters a realistic chance to elect representatives of their choice. They propose modifications under which [¶] 74 will have a 63% BVAP, and [¶] 75 a 64% BVAP. If we understand the situation correctly, no incumbent would reside within [¶] 75 if it were revised in accordance with plaintiffs’ position. The change, however, would put two incumbent white Representatives in the same district.
The law requires equal opportunity. It does not require proportional representation, or that black political superiority be ensured by artificial means. On a strictly numerical and quantitative view of equality, any district with a BVAP of 50% or higher would be per se lawful. We think the Voting Rights Act means something more than this. Suppose two people are in a race, and one of them has had to run the first three laps with a 100-pound weight on his back. Suddenly it occurs to the referee that this is unfair. Something must be done to correct the injustice. Is it corrected just by removing the weight from the disadvantaged runner for the last lap? Of course not. If no more than this is done, equality of opportunity is nothing but an empty promise, a form of words better left unsaid by honest people. Past injustice, especially centuries of it, cannot be ignored. In Justice Blackmun's elegant phrase, “[i]n order to get beyond racism, we must first take account of race.” University of California Regents v. Bakke, 438 U.S. 265, 407, 98 S.Ct. 2733, 2807, 57 L.Ed.2d 750 (1977) (separate opinion).
It was just this reasoning that led this Court, less than two years ago, to hold unanimously that something on the order of a 60% BVAP is required to remedy a vote-dilution violation of the Voting Rights Act. Smith v. Clinton, 687 F.Supp. 1361, 1362-63 (E.D.Ark.) (three-judge court), aff'd mem., 488 U.S. 988, 109 S.Ct. 548, 102 L.Ed.2d 576 (1988). We said:
In shaping a remedy under the Voting Rights Act, this Court must “exercise its traditional equitable powers to fashion the relief so that it completely remedies the prior dilution of minority voting strength and fully provides equal opportunity for minority citizens to participate and to elect candidates of their choice.” S.Rep. No. 417, 97th Cong., 2d Sess. 31 (1982), reprinted in 1982 U.S.Code Cong. & Ad.News 177, 208 (footnote omitted). It is widely understood 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.” Ketchum v. Byrne, 740 F.2d 1398, 1413 (7th Cir.1984), cert. denied, 471 U.S. 1135, 105 S.Ct. 2673, 86 L.Ed.2d 692 (1985). Moreover, the extent to which minorities must outnumber whites in the relevant jurisdiction is a matter of “gen*1199eral acceptance in redistricting jurisprudence.” Id. at 1415-16 (citing cases).
A guideline of 65% of total population is frequently used, and is derived by supplementing a simple majority with an additional 5% to offset the fact that minority population tends to be younger than that of whites, 5% for the well-documented pattern of low voter registration, and 5% for low voter turnout among minorities. When voting-age population figures are used, a 60% nonwhite majority is appropriate. Id.
687 F.Supp. at 1362-63 (footnote omitted).
The present case is indistinguishable from Smith in any significant way. We are bound by Smith. The doctrine of stare decisis is strongest in matters of statutory interpretation, and that’s what this case is about — determining the meaning of the Voting Rights Act at the remedial stage of a case in which defendants are proven violators of the law. The districts proposed by plaintiffs are no less compact and contiguous than those proposed by the Board. They would meet the 60% rule of thumb. The law requires us to adopt them.2
Defendants point out that they are the authorities charged by law with drawing the lines. Their action represents official State policy. It should be treated with some deference. If the districts they propose would have been upheld at the liability stage of the case, they must be upheld now. See McGhee v. Granville County, 860 F.2d 110, 115 (4th Cir.1988). At least in the present context,3 we agree with all of that. But the point is precisely that the Board’s HDs 74 and 75 would have been held unlawful at the liability stage of this case, simply because they are (1) below 60% BVAP and (2) easily expanded without sacrificing principles of compactness and contiguity.
In reaching this result, we act against a well-documented factual background of black political disadvantage, some of it due to intentional racial discrimination. The proof before us, some of which is detailed in our opinion filed December 4, 1989, is every bit as cogent on the point, if not more so, than was the proof in Smith. See also the declaration of Jerry Wilson, attached to plaintiffs’ Memorandum of Law in Support of Remedy Plan. Defendants have not contested any of Mr. Wilson’s factual allegations.4
If there were a good reason — some neutral, nondiscriminatory reason — for the way [¶] 74 and [¶] 75 have been drawn by the Board, the result might well be otherwise. The Board’s submission, however, suggests no such reason, and we can think of none. The only reason that comes to mind is the desire to make it easier for white incumbent legislators to win re-election against black challengers, coupled with the desire to avoid races in which one white incumbent legislator must run against another. The Board’s plan as submitted includes only two districts, one in the House and one in the Senate, in which incumbents would have to run against each other. Both these districts are in the Pine Bluff-Jefferson County area. All other things being equal, there is nothing wrong with a desire to protect incumbents. But in the *1200present case, all other things are not equal. The desire to protect incumbents, either from running against each other or from a difficult race against a black challenger, cannot prevail if the result is to perpetuate violations of the equal-opportunity principle contained in the Voting Rights Act.
For these reasons, we will adopt the Board’s House plan, modified, however, in accordance with plaintiffs’ present proposals as to [¶] 74 and [¶] 75. In taking this action, we also adopt in principle the position taken by Governor Clinton in his separate filing. Like the plaintiffs, he objects to the Board’s plan on the ground that it fails to create a majority-black district without an incumbent in Eastern Arkansas, the center of black population. We agree with the Governor that the Board’s approach does not present “the best opportunity to resolve the historic dilution of black voting strength in that region.” Defendant Bill Clinton’s Memorandum of Fact and Law, p. 3. We adopt plaintiffs’ alternative rather than the Governor’s because the plaintiffs’ plan is more fully articulated: it clearly indicates how the ripple effect is handled, and what the BVAP in each district will be.
III. THE SENATE
Defendants’ Senate plan creates eight new districts, SDs 18, 19, 27, 28, 29, 30, 34, and 35. Six of these districts owe their existence to the ripple effect. The other two, SD 27 and SD 30, have black voting-age majorities. SD 27 has a 58% BVAP, and SD 30 has a 55% BVAP. A white incumbent Senator lives in proposed SD 30, but no incumbent Senator lives in proposed SD 27.
Plaintiffs object to both of these districts, making the same type of argument that we have already considered in respect to the House. In place of the Board’s proposed SD 30, they propose a district, numbered 19 according to their system, that would include portions of Crittenden, Cross, Lee, Phillips, and St. Francis Counties. Plaintiffs’ SD 19 would have a 60.5% BVAP. For reasons already discussed in connection with the House, we hold that this objection is well taken. Defendants have suggested no countervailing policies. Plaintiffs’ SD 19 would include the residences of two incumbent white State Senators, but, as we have already explained, that consideration cannot prevail in the present context.
Plaintiffs also object to the Board’s proposed SD 27. It would have a BVAP of 58% and would not include the residence of any incumbent Senator. Plaintiffs’ proposal, which would also be a non-incumbent district, would result in a BVAP of 61%. We reject plaintiffs’ position with respect to this district. Plaintiffs point out, and it is true, that a higher BVAP in SD 27 could have been obtained simply by adding certain portions of the City of Pine Bluff to the district instead of a largely white township, Cane Creek, located in Lincoln County. The Board articulates no reason for the selection of Cane Creek over the suggested portions of Pine Bluff, but we do not believe this is fatal to the Board’s position. As noted above, the Board, as the regularly constituted authority for this kind of decision, is entitled to some deference. If it creates a district in which, in practical terms, black voters have an equal opportunity, we do not think it should be faulted for failing to give black voters an additional edge. Here we again take our cue from Smith v. Clinton, supra. There, a 60.55% BVAP district, in which an incumbent white State Representative resided, was held to comply with the law fully. We think a 58% BVAP district with no white incumbent is the equivalent in practical political terms. The opportunity to run for an open seat is worth at least two or three points. This is especially true when we consider that the white incumbent in question, if SD 27 had been drawn to include his residence, would have been a prominent State Senator who has recently been elected Chairman of the Democratic Party of Arkansas.
For these reasons, the Board’s Senate plan will be adopted, modified, however, in accordance with plaintiffs’ objections with respect to the Board’s proposed SD 30, numbered SD 19 in plaintiffs’ listing.
*1201Governor Clinton also objects to the Board’s Senate plan, but for reasons other than the plaintiffs’. He argues that the population difference between SD 28 and SD 29 is 11.5% (using 1980 census numbers, which are the most reliable data we have and the basis for all our other computations). This difference, he says, exceeds the 10% deviation which the Supreme Court has indicated is presumptively lawful. See, e.g., Connor v. Finch, 431 U.S. 407, 418, 97 S.Ct. 1828, 1835, 52 L.Ed.2d 465 (1977). In the first place, the deviation involved here is, according to our computation, 10.9%, not 11.5%. “Deviation” or “variance,” for this purpose, does not mean the percentage difference between the population in the two districts to be compared, here SD 28 and SD 29. It means, instead, the total deviation of these two districts from the norm, or the ideal district if absolute population equality were to be achieved. SD 28 is 5.8% above the norm, and SD 29 is 5.1% below it, so the total deviation is 10.9%. We do not find this discrepancy sufficiently significant to justify rejecting the Board’s plan. That plan represents official State policy. It is close to the 10% rule of thumb. The Board justifies it by pointing, among other things, to the desireability of keeping three cities in Lonoke County in the same district. This is an entirely legitimate community-of-interest consideration. There are no racial implications in this difference between districts. Both of them will be majority white no matter how this issue is resolved. All of these reasons combine to persuade us not to upset the Board’s action on this question.
IV. CONCLUSION
An order is being entered today to carry out the conclusions expressed in this opinion. We remind the parties that the question of preclearance under Section 3 of the Voting Rights Act, 42 U.S.C. § 1973a(c), remains pending. The Court is working on this issue and will file its opinion in due course.
It is so ordered.
EISELE, Chief District Judge, dissents, and will file an opinion in due course stating his views.
ORDER
(Filed Feb. 9, 1990)
ARNOLD, Circuit Judge and GEORGE HOWARD, Jr., District Judge.In accordance with the opinion filed today, it is CONSIDERED, ORDERED, ADJUDGED, and DECREED as follows:
1. The motion of James Wilburn, Christine Brownlee, James Walter Adams, Louise Evans, and the Rev. Robert Nelson for leave to file objections to remedial plans and to file alternative remedial plan, or in the alternative, to intervene as parties plaintiff, is denied.
2. The motion of the defendant Bill Clinton for leave to file memorandum of fact and law in support of an alternative remedy plan is granted.
3. Defendants are instructed to adopt, as the plan of apportionment of the Arkansas General Assembly in effect henceforth and until the adoption of a new plan following the 1990 Census, the plan submitted by the Board of Apportionment on January 16, 1990, modified, however, in accordance with plaintiffs’ objections with respect to House District 74, House District 75, and Senate District 30 (Senate District 19 in the plaintiffs’ listing). So long as plaintiffs’ plan with respect to these three districts is adopted in full, the Board is free to adopt its own plan with regard to the new ripple districts which will be necessitated by the adoption of plaintiffs’ majority-black districts.*
4. Defendants are instructed to file with this Court, within one week of the date of the entry of this Order, a final plan including a detailed description of both House and Senate Districts, with maps attached, in accordance with paragraph 3 of this order. The plan shall be submitted to counsel for plaintiffs for their approval as to form, and shall, when submitted, bear the approval as to form of counsel for *1202plaintiffs and counsel for defendants. The signatures of counsel evidencing this approval as to form shall not be construed as a waiver of any objections that have been previously preserved.
5. Defendants, and each of them, are hereby permanently restrained and enjoined from using, giving effect to, or operating under any other plan of apportionment for the Arkansas General Assembly than the one described in paragraphs 3 and 4 of this Order.
6. The Court retains jurisdiction for the purpose of entering such other orders, if any, as may be necessary to effectuate this decree.
It is so ordered.
ORDER ON CLARIFICATION
(Filed Feb. 16, 1990)
We have before us a motion for clarification filed on February 13, 1990, by the defendants. Instructions are requested with respect to the meaning of our order entered on February 9, 1990.
The order directed defendants to adopt as a final plan the plan submitted by them on January 16, modified, however, in accordance with plaintiffs’ objections with respect to House District 74, House District 75, and Senate District 30 (Senate District 19 in the plaintiffs’ listing.) Defendants interpret the order to mean that they must adopt the plaintiffs’ plan with respect to H.D. 74, H.D. 75, and S.D. 30 (plaintiffs’ S.D. 19), but are not necessarily bound to adopt, as part of the final plan, the “ripple districts” proposed by plaintiffs in their submission of January 17. Plaintiffs, on the other hand, take the position that the final plan must include their entire proposal, including the “ripple districts.”
Our order of February 9, 1990, is not completely clear in this respect, and it should be amplified. So long as H.D. 74, H.D. 75, and S.D. 30 (S.D. 19 in the plaintiffs’ listing) are adopted in a manner fully consistent with plaintiffs' objections, both the law and the purpose of our order will be satisfied. What the “ripple districts” should be is the kind of political decision that should be left to the Board. The Board should be left free to adjust the ripple effect in accordance with its own best judgment. When we entered our order of February 9, 1990, we were not aware (because none of the parties had told us) that the plaintiffs’ plan included ripple effects that would adversely affect incumbent legislators who were not within the target zone, so to speak, of the case. Whether, and to what extent, these legislators should be affected is a matter for the Board of Apportionment, not for the Court.
Accordingly, the motion of defendants for clarification is granted, and paragraph 3 of our order entered February 9, 1990, is modified by adding thereto the following sentence: “So long as plaintiffs’ plan with respect to these three districts is adopted in full, the Board is free to adopt its own plan with regard to the new ripple districts which will be necessitated by the adoption of plaintiffs’ majority-black districts.”
It is so ordered.
OPINION ON RECONSIDERATION
(Filed March 5, 1990)
ARNOLD, Circuit Judge.We have before us defendants’ motion for reconsideration, filed on February 16, 1990. The motion requests that Senate District 30 (District 19 in plaintiffs’ numbering system), as described in our order of February 9, 1990, be modified. The modification would increase the black voting age population (BVAP) of this District from 61% to 62%. It would also change the boundary lines of the District in such a way as to prevent two incumbent white senior Senators from being placed in the same district. Plaintiffs have responded to the motion. Their response, filed February 23, 1990, does not take a clear position on the merits of the motion.
The motion is granted. From the point of view of the rights of the plaintiffs under the Voting Rights Act, SD 19 as modified in accordance with defendants’ latest proposal would actually be superior to SD 19 as prescribed in our order dated *1203February 9. The motive behind defendants’ motion may well be, as plaintiffs suggest, the simple desire to protect white incumbents from political damage, but we are not for that reason persuaded that the motion should be denied. Continuity of representation, which is a sort of euphemism for protection of incumbents, is not an unlawful consideration, so far as the Voting Rights Act is concerned, so long as the equality of political opportunity that the Act protects is ensured. If plaintiffs’ rights are fully protected, whether, and, if so, to what extent, incumbent senators should be helped or hurt is a political consideration wholly within the competence of the political body constituted by State law to handle it, in this instance the Board of Apportionment.
We confess to some disappointment at having to address these matters piecemeal. Defendants could well have brought to our attention all of their concerns, including alternative proposals, before entry of our order of February 9. We do not believe, however, that it would be appropriate to deny their motion for this reason. These matters are important, politically as well as legally, and we believe that we should defer to the constituted authorities of the State unless to do so would violate plaintiffs’ federal rights. For reasons already explained, we do not believe that the granting of this motion would violate such rights.
Accordingly, the motion for reconsideration will be granted, and our order of February 9, 1990, as initially modified on February 16, 1990, will be further modified by adopting defendants’ latest proposal for Senate District 30 (numbered 19 by the plaintiffs).
We are filing today an amended and substituted order, embodying all of our actions to date. This order finally disposes of the Voting Rights Act phase of this case.
It is so ordered.
. This figure is actually 65.94%. See Plaintiffs’ Supplement to Proposed Remedy Plan, p. 2, filed January 26, the day after the Wilburn petitioners’ motion was filed.
. Defendants’ five other proposed black-majority House Districts (38, 80, 83, 88, and 100) are all below 60% BVAP, but they are not for that reason unlawful. Plaintiffs have not objected to them, presumably because there is no practical way to increase their BVAP while still meeting reasonable standards of compactness and contiguity.
. The concept of equal opportunity necessarily contains some imprecision. At the remedy stage — a violation having been established — it may be appropriate to resolve some marginal doubts against the wrongdoers. Courts should not be grudging in remedying injustice. "Equity delights to do justice, and not by halves.” It is unnecessary to resort to this line of reasoning to resolve the present case.
.Plaintiffs ask for an evidentiary hearing in the event that defendants contest any of their factual allegations. See Memorandum of Law in Support of Remedy Plan, p. 3. No such contest has occurred. The Board has not asked for an evidentiary hearing. It is fair, therefore, to take these allegations as uncontested, if not admitted. The allegations build mainly on proof already in the record, anyway. The Board’s motion to strike the affidavit of Oily Neal is denied as moot. Plaintiffs have withdrawn the affidavit.
Modified by order of Feb. 16, 1990, see p. 1202.