Henry J. Kirksey, Individually and on Behalf of All Others Similarly Situated v. Board of Supervisors of Hinds County, Mississippi, Defendants , 554 F.2d 139 ( 1977 )

GODBOLD, Circuit Judge:

This case concerns the establishment by a court-ordered plan of voting districts for the election of county officers elected by single-member districts in Hinds County, Mississippi.¹ Hinds County is the situs of Jackson, the state capital.

In 1975 the district court approved and adopted a redistricting plan proposed by the county Board of Supervisors.² Plaintiffs appealed, and this court affirmed.³ We granted the petition of plaintiffs for rehearing en banc and' heard oral arguments. The court en banc reverses the panel decision, reverses the district court, and remands the case for further consideration.

The facts are extensively discussed in the opinions of the district court and the panel of this court. Only a summary is necessary.

In 1969 Hinds County’s electoral districts were reapportioned under court order to bring them in line with the “one-man, one-vote” requirements of Avery v. Midland County, 390 U.S. 474, 88 S.Ct. 1114, 20 L.Ed.2d 45 (1968). In 1971 this suit was filed as a class action on behalf of black registered voters qualified to vote for the county officers elected by districts. Plaintiffs challenged the 1969 apportionment plan on the grounds that it lacked Justice Department preclearance required by § 5 of the Voting Rights Act,⁴ unconstitutionally diluted the voting strength of black citizens of Hinds County and malapportioned the county in terms of one-man, one-vote requirements.⁵

The results of the 1970 census became available and they revealed that the 1969 plan malapportioned the county. The district judge ordered the county supervisors to submit a plan of reapportionment, drawn up without regard to race, which created districts equal in population. In 1973 the supervisors submitted a plan prepared by a firm which provides services to public bodies in the field of political redistricting and reapportionment. The plan divided the county into five single-member supervisors’ districts of almost equal population. Each district was a long corridor radiating outward from the City of Jackson, broader in the rural land mass perimeter, narrower in the Jackson urban area.

The rural district lines of the 1969 plan were retained, and redistricting was carried out by altering lines within the City. The black community of Hinds County is largely concentrated in the central city area of Jackson. Each corridor cuts into this concentrated black area. Under the plan there would be two Districts, 2 and 5, with black population majorities of 53.4% and 54%, but with smaller percentages of blacks considered on the basis of voting age population.

The general population of the county is 214,973 persons, 60.75% white, 39.10% black. Sixty-nine per cent of the blacks in the county reside in the central city area of Jackson in 48 contiguous census enumeration districts. Of the 63,267 persons residing in these census districts, 58,198, or 92%, are black. The racial distribution of general population and voting age population of the county is:

District General population Voting age population

White Black White Black

1 70.5% 29.5% 74.7% 25.3%

2 46.6% 53.4% 52% 48%

3 72.3% 27.7% 76.5% 23.5%

4 68% 32% 72.5% 27.5%

5 46% 54% 51.4% 48.6%

These voting age population figures are from the testimony of witness Dr. Loewen. Another witness, Dr. Henderson, approximated the percentage of black voting age population in District 2 to be 45% and District 5 to be 46%.

The plaintiffs challenged the plan, objecting to both its purpose and its effect, and offered their own plan as a substitute.⁶ The district court required that it be furnished statistical data showing the racial composition of the districts. After receiving this data the court conducted an evidentiary hearing in August 1974. The vice-president of the firm which prepared the supervisors’ plan testified that pursuant to the order of the court requiring the supervisors to present a plan and in accordance with specific instructions of the supervisors to his firm, the plan was drawn in a racially neutral manner. 402 F.Supp. 666-67. The court found that:

The plan . . was devised in order to achieve population equality and approximate equalization of road and bridge mileage and land area. This Court further finds that this was accomplished without regard to race or political affiliation of the residents of the county, race being wholly disregarded as a factor in fashioning the district lines for both the 1969 plan and the 1973 plan.

Id. at 667. In its conclusions of law the district court held that plaintiffs had failed to meet the burden of proving that the new district boundaries were drawn by or for the defendants on racial lines or of proving that the defendants or the draftsman of the plan was motivated by considerations of race, creed, or national origin in creating the new districts.

The court approved and adopted the supervisors’ plan and directed that it be put into effect. It rejected plaintiffs’ alternate plan. On appeal this court, through its panel decision, 528 F.2d 536, affirmed the district court. The court en banc reverses the district court on both constitutional and non-constitutional grounds and remands the case to the district court for the fashioning of a remedy.

I. The law of unconstitutional reapportionment

American citizens are entitled to participate fully and effectively in the political processes of state legislative bodies.

[ Representative government is in essence self-government through the medium of elected representatives of the people, and each and every citizen has an inalienable right to full and effective participation in the political processes of his State’s legislative bodies. Most citizens can achieve this participation only as qualified voters through the election of legislators to represent them. Full and effective participation by all citizens in state government requires, therefore, that each citizen have an equally effective voice in the election of members of his state legislature. Modern and viable state government needs, and the Constitution demands, no less.

Reynolds v. Sims, 377 U.S. 533, 565, 84 S.Ct. 1362, 1383, 12 L.Ed.2d 506, 529 (1964). The same principles apply to county bodies. As the Supreme Court said in Avery v. Midland County, supra:

When the State apportions its legislature, it must have due regard for the Equal Protection Clause. Similarly, when the State delegates lawmaking power to local government and provides for the election of local officials from districts specified by statute, ordinance, or local charter, it must insure that those qualified to vote have the right to an equally effective voice in the election process. If voters residing in oversize districts are denied their constitutional right to participate in the election of state legislators, precisely the same kind of deprivation occurs when the members of a city council, school board, or county governing board are elected from districts of substantially unequal population.

390 U.S. at 480, 88 S.Ct. at 1118, 20 L.Ed.2d at 51.

However, redistricting done to comply with one-man, one-vote requirements may impinge upon the right of members of minorities to legal access to the processes of democracy. A redistricting plan is constitutionally impermissible as racially discriminatory if it is a racially motivated gerrymander or if it perpetuates an existent denial of access by the racial minority to the political process.⁷ With respect to whether in the affected area a racial minority is denied full and effective access to the democratic process:

The plaintiffs’ burden is to produce evidence to support findings that the political processes leading to nomination and election were not equally open to participation by the group in question — that its members had less opportunity than did other residents in the district to participate in the political processes and to elect legislators of their choice.

White v. Regester, 412 U.S. 755, 766, 93 S.Ct. 2332, 2338, 37 L.Ed.2d 314, 324 (1973). As a matter of pure semantics it can be argued that a minority is denied equality of access to the political process if it does not have representation in proportion to its voting strength. With anything less its strength is minimized, cancelled out, or “diluted.” The Supreme Court and this circuit have consistently eschewed such a mechanistic approach.⁸ “[C]learly it is not enough to prove mere disparity between the number of minority residents and the number of minority representatives.” Zimmer v. McKeithen, 485 F.2d 1297 at 1305 (CA5, 1973) (en banc), aff’d on other grounds sub nom. East Carroll Parish School Board v. Marshall, 424 U.S. 636, 96 S.Ct. 1083, 47 L.Ed.2d 296 (1976).⁹

We noted in Zimmer, 485 F.2d at 1305, that the Supreme Court in White v. Regester, had identified several factors indicative of denial of access to the political process. Among these are: a history of official racial discrimination which touched the right of the minority to register and vote and to participate in the democratic process, 412 U.S. at 766, 93 S.Ct. 2332, 37 L.Ed.2d at 325; a historical pattern of a disproportionately low number of minority group members being elected to the legislative body, id.; a lack of responsiveness on the part of elected officials to the needs of the minority community, 412 U.S. at 769, 93 S.Ct. 2332, 37 L.Ed.2d at 325-26; a depressed socioeconomic status which makes participation in community processes difficult, 412 U.S. at 768, 93 S.Ct. 2332, 37 L.Ed.2d at 325-26; and rules requiring a majority vote as a prerequisite to nomination, 412 U.S. at 766, 93 S.Ct. 2332, 37 L.Ed.2d at 324.¹⁰ While these standards were developed for use in situations involving multimember districts, they have equal application to redistricting schemes making use of single-member districts, such as the plan presently before this court. Robinson v. Commissioners Court, 505 F.2d 674, at 678 (CA5, 1974); Howard v. Adams County Board of Supervisors, 453 F.2d 455, at 458 n. 2 (CA5), cert. denied, 407 U.S. 925, 92 S.Ct. 2461, 32 L.Ed.2d 812 (1972). By proof of an aggregation of at least some of these factors, or similar ones, a plaintiff can demonstrate that the members of the particular group in question are being denied access.

The court must then look to the matter of whether the redistricting plan, whether adopted by legislative processes or proposed to be adopted and ordered by the court, will continue in effect an existent denial of access to the minority. Both the Supreme Court and this circuit have firmly held that where a reapportionment plan is formulated in the context of an existent intentional denial of access by minority group members to the political process, and would perpetuate that denial, the plan is constitutionally unacceptable because it is a denial of rights guaranteed under the Fourteenth and Fifteenth Amendments.¹¹

II. Denial of access to the political process in Hinds County

As proof of denial of access to the Hinds County political process, the plaintiffs presented substantial unrefuted evidence showing a past record of racial discrimination engaged in by the county and of official unresponsiveness to the needs of the county’s black citizens. A summary of this evidence is in the district court’s opinion, 402 F.Supp. at 670-71, and is reproduced as an Appendix to this opinion. We will not restate it but briefly note that it included the existence of these factors: no black’s ever having been elected to Hinds County office; poll taxes and literacy tests as impediments to voting; segregation principles adopted by political parties; property ownership requirements to run for offices; disproportionate education, employment, income level and living conditions between whites and blacks in Hinds County; alleged bloc voting; requirement of a majority for election; prohibition against single-shot voting; systematic exclusion of blacks from juries; levy and maintenance of taxes for a dual school system. In short plaintiffs proved the presence in Hinds County of almost every significant factor indicative of denial of access to the political process. Under this evidence it was not possible to reach any conclusion other than that there had existed in Hinds County racial discrimination and official unresponsiveness to the needs of black citizens. This litany of past history — much of it relating to official action — also commands a conclusion that in significant aspects it was purposeful and intentional. The pattern is clear and stark, and is unexplainable on any grounds other than race.^11a It would be disingenuous to even suggest that this past history sprang from benign or neutral motives.

While recognizing this record of the past the district court took the approach that the record was not proved to be an accurate reflection of current conditions.

There is a point in time when past instances or examples of racial discrimination become remote — a time when a past history becomes a remote history. That time has arrived for Hinds County. The mistakes of the early 1960’s and prior to that time do not, in this Court’s opinion, have any significant effect on the nomination and election of Hinds County officials in 1975.

* * * * * *

This Court finds that although there have been past instances of discrimination against blacks in Hinds County, and throughout this State, blacks are not excluded in 1975 from effective participation in the electoral system, there being no convincing evidence in this case that black citizens are denied access to the political process or hindered in any way from engaging in significant political activity, or otherwise discouraged from seeking political offices in Hinds County. Furthermore, plaintiffs have failed to prove any lack of responsiveness on the part of white elected officials, the contrary being true.

402 F.Supp. at 673. For several reasons this approach, and the conclusions drawn through the use of it, cannot stand. First, the court’s approach required plaintiffs to come forward with evidence that the record of the past continues to be representative of the present. In other circumstances the mere passage of time might be of sufficient duration to permit an inference that what was true in the past is no longer true. In such a case the plaintiff might be required to prove that conditions remain unchanged. Here the - past official actions have been sweeping and pervasive. And the focus is on a period from the mid and late 1960’s to the early 1970’s. This is not such a span that, with any hope of accuracy, one can infer from the mere passing of time that, as the district court put it, “a past history becomes a remote history.” Once plaintiffs established a past record of racial discrimination and official unresponsiveness which required the conclusion that at least until a short number of years past they had been denied equal access to the political processes of the county, it then fell to the defendants to come forward with evidence that enough of the incidents of the past had been removed, and the effects of past denial of access dissipated, that there was presently equality of access.¹² The defendants did not come forward with substantial evidence.

Second, the court imposed an improper burden of proof of causal relationships. The Supreme Court and this court have recognized that disproportionate educational, employment, income level and living conditions tend to operate to deny access to political life. In this case the court held that these economic and educational factors were not proved to have “significant effect” on political access in Hinds County. It is not necessary in any case that a minority prove such a causal link. Inequality of access is an inference which flows from the existence of economic and educational inequalities.

Third, the district court considered specific indicia which it felt demonstrated that the “lack of access’ of the past had become “equal access” in the present. These indicia will not bear the weight which the court put on them. The court referred to post-1966 registration of black voters and concluded that any black not currently registered has failed to register because of lack of interest or apathy. This conclusion is not supported by sufficient evidence. It is not a matter for judicial notice.¹³ Similarly, on the issue of present unresponsiveness by white elected officials, the court noted that it had tried a case in 1968 concerning discriminatory jury selection methods¹⁴ and that since that time it had found no actions or non-action by elected officials indicating discrimination or lack of responsiveness but rather a willingness to seek equitable solutions to racial problems. This observation by the court is not supported by evidence in the record. Also, and this is highly significant, the specific matters to which the court referred as indicia of the demise of non-access are matters in which elected officials acted to stop discrimination as a result of court orders or of federal legislation, such as desegregation, jury discrimination and reapportionment. To the extent that this evidence tends to prove anything, it is that litigation was required to remove discrimination in these important areas, and that litigation has worked. It does not tend to show that discrimination which is not the subject of litigation has been voluntarily removed.

Finally, this court has recognized the lasting impact of historical policies of racial discrimination and official unresponsiveness.¹⁵ We addressed this point in Zimmer, when, in response to the very argument advanced by the district court in the instant case, we said:

Concededly, these impediments to participation in the electoral process have since been removed. The district court concluded that their removal vitiated the significance of the showing of past discrimination. This conclusion is untenable, however, precisely because the debilitating effects of these impediments do persist.

485 F.2d at 1306. Whether the residual effects of past patterns — as opposed to the practices themselves — have been dissipated is a matter for proof, not conjecture. There is no substantial evidence that the residual effects of the past no longer exist in Hinds County. To the contrary, the absence of black elected officials in a county where approximately 35% of the voting population is black is an indication that access of blacks to the political processes of the county is not yet unimpeded.

In summation, the plaintiffs established a long-existent history of sweeping and pervasive denial of access to the democratic political process and of official unresponsiveness to the needs of blacks. The trial court mistakenly placed upon plaintiffs the burden of coming forward with evidence that the long-existent and recent history was still current history at the time of trial. It erroneously placed on plaintiffs the obligation of proving a causal relationship between educational and economic deficiencies and the denial of access to political life. And, to the extent that there is evidence in the record tending to show that the structure and the residual effects of past denial of access have been swept away, it is not substantial enough to support a conclusion that the black minority now has equal access to political life. With the evidence viewed under correct standards, one must infer that the past conditions have not sufficiently changed to eliminate the historical denial of access.

Having dealt with past denial of access and its continuation to the present, we turn to the matter of official purpose or intent. Evidentiary indicia of racially discriminatory purpose or intent may, of course, arise in connection with the preparation of a redistricting plan. Gomillion v. Lightfoot, 364 U.S. 339, 81 S.Ct. 125, 5 L.Ed.2d 110 (1960). The district court found that there was no improper motive by the draftsman, and that finding is not plainly erroneous. The court also found that the supervisors’ motives were neutral with respect to the drawing of the plan, i. e., the plan was devised in order to achieve population equality and approximate equalization of road and bridge mileage. In the narrow context of the drawing of the plan, this was not plainly erroneous,^15a but it was too narrow. The court did not address whether the plan perpetuated existent purposeful and intentional discriminatory denial of access, because it had erroneously concluded that the past denial of access had attenuated and no present denial existed. Where a plan, though itself racially neutral, carries forward intentional and purposeful discriminatory denial of access that is already in effect, it is not constitutional. Its benign nature cannot insulate the redistricting government entity from the existent taint. If a neutral plan were permitted to have this effect, minorities presently denied access to political life for unconstitutional reasons could be walled off from relief against continuation of that denial. The redistricting body would only need to adopt a racially benign plan that permitted the record of the past to continue unabated. Such a rule would sub silentio overrule White v. Regester. It would emasculate the efforts of racial minorities to break out of patterns of political discrimination.

Recent Supreme Court cases have underscored the interplay, in equal protection cases, between racially discriminatory intent and racially differential impact as criteria for violation of the equal protection clause. In Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976), there was no claim of intentional or pur- , poseful discrimination but only a claim that an employment test had a racially discriminatory impact. Id., 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d at 604. The Court of Appeals for the District of Columbia held ! that lack of discriminatory intent was irrelevant and that disproportionate impact/ standing alone and without regard to whether it indicated a discriminatory purpose, was sufficient to establish a constitutional violation. Id., 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d at 606. This the Supreme Court rejected:

But our cases have not embraced the proposition that a law or other official act, without regard to whether it reflects a racially discriminatory purpose, is unconstitutional solely because it has a racially disproportionate impact.

Id., 426 U.S. at 239, 96 S.Ct. at 2047, 48 L.Ed.2d at 607. The court went on to point out that “disproportionate impact is not irrelevant, but it is not the sole touchstone of . an invidious racial discrimination forbidden by the Constitution.” Id., 426 U.S. at 242, 96 S.Ct. at 2049, 48 L.Ed.2d at 609. Invidiously discriminatory purpose may be “inferred from the totality of the relevant facts, including the fact, if it is true, that the law bears more heavily upon one race than another.” Id., 426 U.S. at 242, 96 S.Ct. at 2049, 48 L.Ed.2d at 608-09.

In the next term, in Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 97 S.Ct. 555, 50 L.Ed.2d 450 (1970), the Court followed the Washington v. Davis holding that disproportionate impact is neither the sole touchstone nor irrelevant. The Court pointed out that an equal protection plaintiff is not required to prove that challenged action rests solely on racially discriminatory purpose but that such purpose need be only a “motivating factor in the [legislative or administrative body’s] decision.” 429 U.S. at 266, 97 S.Ct. at 563, 50 L.Ed.2d at 465. The Court set down a non-exhaustive list of factors useful in the “sensitive inquiry into such circumstantial and direct evidence of intent as may be available.” 429 U.S. at 266, 97 S.Ct. at 564, 50 L.Ed.2d at 465. (1) The impact of the official action as bearing more heavily on one race than another, may be “an important starting point.” (2) A clear pattern, unexplainable on grounds other than race, may emerge from the effect of state action even though the legislation is facially neutral. (3) “The historical background of the decision is one evidentiary source, particularly if it reveals a series of official actions taken for invidious purposes.” (4) Departures from normal procedural sequence. (5) Substantive factors, particularly if regularly considered important by the decisionmaker. (6) Legislative or administrative history. 429 U.S. at 267, 97 S.Ct. 555, 564, 50 L.Ed.2d at 465-66.

Assuming that these cases are to be applied to racial minorities’ claims of exclusion from the democratic process, they would be of particular significance in the present case if the only issue were whether the racially neutral plan created such exclusion in Hinds County. But there is a second issue which we have pointed out, whether the plan, though neutral in design, was the instrumentality for carrying forward patterns of purposeful and intentional discrimination that already existed in violation of our Constitution.

When the indicia of Arlington Heights for determining intent are applied to the patterns of denial of access to blacks in Hinds County, the conclusion is not open to doubt. The chronology earlier in this opinion and in Appendix A is part of the legislative and administrative history of official resistance to black efforts to move into the full stream of the democratic process in Hinds County. And, as in Gomillion v. Lightfoot, it is a stark pattern, unexplainable on grounds other than race. Indeed, not even the defendants contend otherwise. They simply say that things have changed.

Washington v. Davis and Arlington Heights sharpen the emphasis upon purpose and intent, and focus upon the effect of official action as an evidentiary factor rather than a single determinator. But nothing in these cases suggests that, where purposeful and intentional discrimination already exists, it can be constitutionally perpetuated into the future by neutral official action.¹⁶ Nor do they suggest that White v. Regester and its progeny are no longer law.¹⁷

The approach which the Supreme Court condemned in Washington v. Davis and Arlington Heights was not the one it had itself embraced in White v. Regester but the approach it had previously rejected in Whitcomb v. Chavis, 403 U.S. 124, 91 S.Ct. 1858, 29 L.Ed.2d 363 (1971). In Whitcomb v. Chavis the plaintiffs failed to prove either that the plan being challenged was an intentional racial gerrymander or that there existed an intentional denial of minority access to the political process which the plan did not remedy. In terms of Washington v. Davis and Arlington Heights, the plaintiffs in Whitcomb grounded their case solely on the “effect” of the plan, i. e., that it did not give Marion County blacks proportional representation in the legislature, and were therefore unsuccessful in challenging its constitutionality. In contrast, the Dallas and Bexar County plaintiffs in White v. Regester were successful, even though they did not prove that the plan in question was a Gomillion v. Lightfoot type of racial gerrymander, because they established the requisite intent or purpose in the form of the existent denial of access to the political process.

III. Perpetuation of denial of access through the reapportionment plan

We turn to the inquiry whether the supervisors’ reapportionment plan, adopted as a court-ordered plan, will in fact have the effect of perpetuating the denial of access to the political process that was proved by plaintiffs to exist. The district court concluded it would not, saying:

The plaintiffs have failed to prove by the convincing evidence that their voting strength will be minimized or canceled out in any way by the Board plan, in which blacks constitute a majority of the population in two districts. In view of the possible variances in the computations of the voting age population in District Two and District Five, coupled with the heretofore noted inconsistencies in predicting block voting patterns in Hinds County, the Board plan offers black residents of this county, who constitute less than 40% of the total population, a realistic opportunity to elect officials of their choice, whether white or black, in two supervisors’ districts and to significantly affect the election of county officials in the three remaining districts.

402 F.Supp. at 673. These conclusions of the court were not correct. The supervisors’ plan fragments a geographically concentrated minority voting community in a context of bloc voting.¹⁸ On its face, such a plan has a predictable tendency. Like a multimember plan, it tends to dilute the voting strength of the minority. In Robinson v. Commissioners Court, supra, a panel of this court noted that

The most crucial and precise instrument of the . . . denial of the black minority’s equal access to political participation, however, remains the gerrymander of precinct lines so as to fragment what could otherwise be a cohesive minority voting community. . . . This dismemberment of the black voting community . . . had the predictable effect of debilitating the organization and decreasing the participation of black voters.¹⁹

505 F.2d at 679. The facially predictable effect of carving up a concentrated black voting area in Hinds County was confirmed by the trial testimony. Plaintiffs’ expert witnesses, Drs. Loewen and Henderson, testified that black voting age population in Districts 2 and 5 was less than 50%.²⁰ In testimony not refuted by other witnesses, Drs. Loewen and Henderson concluded that it would be unlikely if not impossible for blacks to ever elect a candidate of their choice under the supervisors’ plan.²¹ Thus, plaintiffs established that the redistricting under the supervisors’ plan would carry forward into the future an exclusion of the black minority from the democratic process of the county by minimizing or cancelling their voting strength.

The district court found that rather than minimizing or cancelling the voting power of the blacks, the supervisors’ plan offered them a “realistic opportunity” to elect officials of their choice in Districts 2 and 5. This will not stand examination. First, the district court gave specific weight to the existence of black population majorities in these districts, 53.4% in District 2 and 54% in District 5. “We have consistently recognized that ‘access to the political process and not population [is] the barometer of dilution of voting strength.’ ” Bradas v. Rapides Parish Police Jury, 508 F.2d 1109, 1112 (CA5, 1975). Where the cohesive black voting strength is fragmented among districts, the presence of districts with bare black popluation majorities not only does not necessarily preclude dilution but, as a panel of this court pointed out, bare population majorities may actually enhance the possibility of continued minority political impotence. Moore v. Leflore County Board of Education, 502 F.2d 621 at 624 (CA5, 1974).

Also, the court took plaintiffs’ unrefuted voting age population figures and concluded that if the figures were adjusted upward by several, percentage points, the percentages of blacks in Districts 2 and 5 would be approximately 50%. With equal logic, the figures might have been adjusted downward to approximately 45%. These figures, adjusted upward to a skin-of-the-teeth “maybe so” 50% of voting age population, were coupled with inconsistencies in predicting bloc voting patterns to support the inference of “realistic opportunity.” This is too attenuated. Our concern is with basic rights of American citizens. The responsibility of the defendants to permit minority voters a proper role in democratic political life must be discharged by stronger stuff than gossamer possibilities of all variables falling into place and leaning in the same direction.²²

Use of such thin evidence to conclude that blacks have a realistic opportunity to elect representatives of their choice is particularly inappropriate in the case of a court-ordered plan. In the case at bar public officials acting under an order of the court offered to the court a reapportionment scheme as a cure for existing one-man, one-vote deficiencies, asking that it be given judicial imprimatur. The Supreme Court’s decisions in East Carroll Parish School Board v. Marshall, 424 U.S. 636, 96 S.Ct. 1083, 47 L.Ed.2d 296 (1976), and Chapman v. Meier, 420 U.S. 1, 95 S.Ct. 751, 42 L.Ed.2d 766 (1975), indicate that court-ordered apportionment plans are to be held to higher standards than legislatively enacted plans subject to the preclearance requirements of § 5 of the Voting Rights Act. 42 U.S.C. § 1973c. In East Carroll the Court held that the inclusion of multimember districts in a reapportionment plan was an “abuse of discretion,” 424 U.S. at 639, 96 S.Ct. at 1086, 47 L.Ed.2d at 299, even though the Court has declined to hold that use of such a device was a per se constitutional violation. White v. Regester, 412 U.S. at 765, 93 S.Ct. 2332, 37 L.Ed.2d at 324; Whitcomb v. Chavis, 403 U.S. 124, 144, 91 S.Ct. 1858, 29 L.Ed.2d 363, 376 (1971). In Chapman the Court held that variances in population which would be tolerable in legislatively formulated plans were impermissible in the context of a court-ordered plan because “[a] court-ordered plan must, however, be held to higher standards than a State’s own plans.” 420 U.S. at 26, 95 S.Ct. at 765, 42 L.Ed.2d at 784.

Also, in approving the supervisors’ plan the district court overemphasized factors that must be subordinated to the constitutional interests at stake. The court assigned great importance to the equalization of land area and road and bridge mileage. 402 F.Supp. 664-66. Supervisors have no responsibility for roads and bridges in the City, only in the rural areas. The 1969 plan had equalized road and bridge mileage and responsibility between the supervisors, and they were satisfied with this arrangement. Id. at 666. The draftsmen of the 1973 plan were so informed and sought to preserve this feature of the 1969 plan as far as possible. This aim was one of the reasons for leaving the 1969 district lines intact in the rural areas and redistricting by altering lines within the City, where the black population is concentrated. The court held that the purpose of the draftsman was to achieve equalization of population with approximate equalization of road and bridge mileage, 402 F.Supp. at 667,²³ and that to achieve this purpose it was necessary to divide the people of the City, black and white, among the five districts. Id. at 666. Thus, to preserve the 1969 plan’s equalization of rural road and bridge mileage as desired by the supervisors, the 1973 plan split up concentrated black urban areas. There was simply too much emphasis on the administrative convenience of equal road and bridge responsibility at the expense of effective black minority participation in democracy.²⁴ Factors such as these may be considered in redistricting but they are not talismanic. “It is clear, however, that the mere fact that an apportionment plan may satisfy some legitimate governmental goals does not automatically immunize it from constitutional attack on the ground that it has offended more fundamental criteria.” Robinson v. Commissioners Court, 505 F.2d 674 at 680 (CA5, 1974). Less fundamental concerns must be subordinated to the constitutional interests of the citizenry. Avery v. Midland County, supra, 390 U.S. at 484, 88 S.Ct. 1114, 20 L.Ed.2d at 53; Turner v. McKeithen, 490 F.2d 191, 196 n.23 (CA5, 1973); cf. Taylor v. Monroe County Board of Supervisors, 394 F.2d 333 (CA5, 1968).

Finally, the district court expressed doubts that an ameliorative plan could be constitutionally formulated because such a plan would be a racial gerrymander in the manner of Gomillion v. Lightfoot, 402 F.Supp. at 677. Whatever merit the district court’s view may have had, it is no longer viable after the Supreme Court’s recent decision in United Jewish Organizations of Williamsburgh, Inc. v. Carey,U.S. —, —, —, 97 S.Ct. 996, 51 L.Ed.2d 229 (1977).

Plaintiffs proved a long history of denial of access to the democratic process. That history of official action is one of purposeful and intentional discrimination. The structure and the residual effects of the past have not been removed and replaced by current access. The supervisors’ reapportionment plan, though racially neutral, will perpetuate the denial of access. By fragmenting a geographically concentrated but substantial black minority in a community where bloc voting has been a way of political life the plan will cancel or minimize the voting strength of the black minority and will tend to submerge the interests of the black community. The plan denies rights protected under the Fourteenth and Fifteenth Amendments.

IV. Error on nonconstitutional grounds

As we have pointed out just above, a court-ordered reapportionment plan is held to higher standards than a legislative plan. A legislative plan need only meet constitutional standards. But, apart from constitutional grounds, a district court fashioning a reapportionment plan to supplant invalid apportionment may abuse its discretion in the shaping of remedial relief. East Carroll Parish School Board v. Marshall, supra; Chapman v. Meier, supra. In this instance, for the same reasons which we have spelled out in discussing the constitutional violations, the district court’s approval of the supervisors’ plan was just such an abuse of its equitable remedial discretion. In East Carroll the Supreme Court discussed this duty placed upon the court itself in the context of the preference in reapportionment cases for single member rather than multimember election districts, and held that a court fashioning a plan including multimember districts was guilty of abuse of discretion even though the use of such districts was not held to be a constitutional violation. 424 U.S. at 639, 96 S.Ct. at 1085, 47 L.Ed.2d at 299. Multimember districts are objectionable because they tend to minimize or cancel the voting power of minorities. Slicing up a cohesive minority voting area in a community where there is bloc voting has the same tendency to exacerbate rather than remedy denial of access to the political process. Thus, as a matter of its remedy-fashioning power, the court could not approve a plan which tended to carry forward into the future the long-lived denial of black access to the political process. Also, in the process of concluding that it would give approval the court unduly emphasized the administrative factors of roads and bridges, and it gave weight to black population majorities as a barometer of access to the political process. Additionally, the court mistakenly thought that its remedial power was constricted by the racial gerrymander concept of Gomillion v. Lightfoot.

Achieving one-man, one-vote political democracy without excluding minorities from political life is a complex task that challenges the best of intellects and requires examining many facets of the community, past, present and future. The problem is not susceptible of simplistic solutions, however seductive they may appear. No mechanistic solution is an alchemistic philosopher’s stone that will turn all the problems of past and present to future gold.

REVERSED and REMANDED to the district court for the fashioning of a remedy-

APPENDIX A

(From 402 F.Supp. at 670-71.)

(26) This Court has carefully considered the evidence presented by the plaintiffs in their attempt to establish the proposition that the process leading to nomination and election are not equally open to blacks in Hinds County, including, inter alia, the fact that no black has ever been elected to the Hinds County Board of Supervisors or any other office in Hinds County (Exhibit P-24, page 32; testimony of Henry Kirksey); the retention of the poll tax as a requisite to voting in this State until 1966; the retention until 1966 by this State of a literacy test as a requisite to registration, Mississippi Constitution § 244, as amended in 1954, implemented in Mississippi Code Ann. § 3213 (1956 Recomp.); the conditioning of primary participation on adherence to party principles, and successive adoption of alleged segregation principles by party organizations; the requirement that a member of the Board of Supervisors be a resident freeholder of the district which he represents and the owner of real estate therein valued at $1500, coupled with the fact that a much larger percentage of blacks in Hinds County fall below the census poverty lines as opposed to whites, Mississippi Code Ann. § 19-3-3 (1972); Exh. P-3, page H-l); the designation in 1965 of Hinds County for the use of federal examiners pursuant to § 6 of the Voting Rights Act of 1965, 42 U.S.C. § 1973d, and the subsequent registration pursuant thereto; the disqualification of certain black candidates by the Hinds County Election Commission and exclusion of their names from the general election because they had voted in the August 1967 Democratic primary in violation of the 1966 Amendment to Mississippi Code Ann. § 3260 (1956 Recomp. Pocket Part), which was thereafter held unenforceable because of the failure of its submission pursuant to Section 5 of the Voting Rights Act and was subsequently objected to by the Attorney General;3 the testimony of Dr. Loewen, based on 1970 census data, concerning the disproportionate educational, employment and income level and living conditions between whites and blacks in Hinds County, and the effect on blacks’ ability to register and vote and to run as candidates for office; the allegedly high rate of block voting by whites and blacks in Hinds County; and several electoral mechanisms presently operative in elections in Hinds County, including the requirement of a majority vote as a prerequisite to party nomination and winning a special election, Mississippi Code Ann. §§ 23-3-69; 23-5-203 ; 23-5-197 (1972); the prohibition against single shot voting, Mississippi Code Ann. § 3110 (1956 Recomp.); and the requirement of at-large elections of county election commissioners, Mississippi Code Ann. § 23-5-3 (1972), all of which the plaintiffs contend exclude blacks from equal opportunity to participate and win elections in Hinds County.

(27) Furthermore, this Court has carefully considered the evidence presented by the plaintiffs in their attempt to establish a lack of responsiveness on the part of white elected officials in Hinds County, including, inter alia, the findings by this Court and others of systematic exclusion of blacks from jury lists in the First and Second Judicial Districts of Hinds County, Love v. McGee, 297 F.Supp. 1314 (S.D.Miss.1968); Goode v. Cook, 319 F.Supp. 246 (S.D.Miss.1969), and Spencer v. State, 240 So.2d 260 (Miss.1970); the support and maintenance of the Board of Supervisors by tax levy of two allegedly racially segregated agricultural high schools and juniors colleges within Hinds County, Hinds Junior College and Utica Junior College, and an alleged disproportionate funding of these colleges (Minute Book 55, page 277, Exh. P-45); the appointment of only white persons as members of the County Board of Public Welfare in Hinds County (Minute Book 56, page 608; Minute Book 74, page 214; Kirksey Testimony); the failure of the Board of Supervisors to provide funds for the Community Hospital for Negroes of Jackson (Minute Book 56, page 681)- the authorization of an ad valorem tax exemption for Jackson Academy, Inc., an allegedly racially segregated private school maintained for the purpose of providing an alternative to the public school desegregation (Minute Book 60, pages 25-26 and passim); and the maintenance and levying of taxes in support of a dual school system in Hinds County prior to 1965 by the Board of Supervisors, in conjunction with the Hinds County Board of Education and the Board of Trustees of the Jackson Municipal Separate School District, the Board of Education members being elected from each of the supervisors’ districts and the Board of Trustees being appointed by the Jackson City Council [Singleton v. Jackson Municipal Separate School District, 348 F.2d 729 (5th Cir. 1965); 355 F.2d 865 (5th Cir. 1966); 419 F.2d 1211 (5th Cir. 1969), rev’d, 396 U.S. 290, 90 S.Ct. 608, 24 L.Ed.2d 477 (1970); 425 F.2d 1211 (5th Cir. 1970); 426 F.2d 1364 (5th Cir. 1970); 430 F.2d 368 (5th Cir. 1970); 432 F.2d 927 (5th Cir. 1970), and United States v. Hinds County School Board, 402 F.2d 926 (5th Cir. 1968); 417 F.2d 852 (5th Cir. 1969), cert. denied, 396 U.S. 1032, 90 S.Ct. 612, 24 L.Ed.2d 531 (1969); 423 F.2d 1264 (5th Cir. 1969) ].

[Footnote omitted.]

1 . Members of the Board of Supervisors (the county governing body), justices of the peace, constables, and members of the county Board of Education.

2 . Kirksey v. Board of Supervisors of Hinds County, 402 F.Supp. 658 (S.D.Miss., 1975).

3 . Kirksey v. Board of Supervisors of Hinds County, 528 F.2d 536 (CA5, 1976).

4 . 42 U.S.C. § 1973c.

5 . A three-judge court was convened as required by the Voting Rights Act. Plaintiffs dismissed their claims arising under this Act. The three-judge court was dissolved, leaving the plaintiffs’ constitutional claims to be heard by a single judge.

6 . The U.S. Department of Justice as amicus curiae originally challenged the 1973 plan on the ground that it lacked § 5 preclearance. However, both the plaintiffs and the Department of Justice now conceded that under the authority of East Carroll Parish School Bd. v. Marshall, 424 U.S. 636, 96 S.Ct. 1083, 47 L.Ed.2d 296 (1976), a court-ordered reapportionment plan is not subject to the clearance requirements contained in 42 U.S.C. § 1973c.

7 . Zimmer v. McKeithen, 485 F.2d 1297, 1304 (CA5, 1973) (en banc), aff'd on other grounds sub nom. East Carroll Parish School Bd. v. Marshall, 424 U.S. 636, 96 S.Ct. 1083, 47 L.Ed.2d 296 (1976); Robinson v. Commissioners Court, 505 F.2d 674, 677 (CA5, 1974); Moore v. Leflore County Bd. of Election Commissioners, 502 F.2d 621, 623-24 (CA5, 1974).

8 . White v. Regester, 412 U.S. 755, 765, 93 S.Ct. 2332, 37 L.Ed.2d 314, 324 (1973); Whitcomb v. Chavis, 403 U.S. 124, 149, 91 S.Ct. 1858, 29 L.Ed.2d 363, 379 (1971); Zimmer v. McKeithen, supra, 485 F.2d at 1305.

9 . The recent Supreme Court decision in Beer v. United States, 425 U.S. 130, 96 S.Ct. 1357, 47 L.Ed.2d 629 (1976), is not to the contrary. The Court’s remarks on proportionality as a prime measure were made in the context of § 5 of the Voting Rights Act, 42 U.S.C. § 1973c, and not in the constitutional context. As Justice Stewart said, “it is important to note at the outset that the question is not one of constitutional law, but of statutory construction.” 425 U.S. at 139, 96 S.Ct. at 1363, 47 L.Ed.2d at 638.

10 . Some courts have equated minority access to the political process with access of the individual to the ballot box or voting booth. We find this interpretation unpersuasive. The Court in White v. Regester would not have bothered to set forth a panoply of factors to gauge access to the political process if access meant only whether every individual could vote. Moreover the factors themselves are more relevant to whether a group has input into the political decision-making process than to whether a particular individual is free to vote.

11 . White v. Regester, supra, 412 U.S. at 766, 93 S.Ct. 2332, 37 L.Ed.2d at 324 (1973); Whitcomb v. Chavis, supra, 403 U.S. at 149, 91 S.Ct. 1858, 29 L.Ed.2d at 379 (1971); Zimmer v. McKeithen, supra, 485 F.2d at 1305.

11a . See discussion infra of indicia of motive and intent set out in Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977).

12 . The Supreme Court and the lower federal courts have followed this approach in other areas of desegregation. Swann v. Charlotte-Mecklenburg Bd. of Education, 402 U.S. 1, 26, 91 S.Ct. 1267, 28 L.Ed.2d 554, 572 (1971) (district with a history of school segregation, burden on school authorities to justify a plan which contemplated the existence of some or all schools predominantly of one race); Keyes v. School District No. 1, 413 U.S. 189, 209, 93 S.Ct. 2686, 37 L.Ed.2d 548, 564 (1973) (school system with a history of intentional segregation in any portion of the system has burden of proving that any existing segregated schooling is not also the result of intentionally segregative acts); Chambers v. Hendersonville City Bd. of Education, 364 F.2d 189, 192 (CA4, 1966) (school system which historically practiced racial discrimination, burden on school board to justify discharge of a disproportionately large number of minority teachers); Barnes v. Jones County School District, 544 F.2d 804 (CA5, 1977) (school system with immediately past history of racial discrimination, burden on it to justify demotion and discharge of black teacher).

Cf. Whitfield v. Oliver, 399 F.Supp. 348 (M.D. Ala., 1975) (three-judge court) which held that the defendant state officials violated the equal protection clause of the Constitution by setting the aid levels in the predominantly black Aid for Dependent Children program at 35% of “need” as opposed to 100% of “need” funding for the predominantly white Old Age Assistance Program. The court noted:

“The history of the efforts of Negroes in Alabama to become full and free participants in the political processes of the state is recorded at length in the decisions of the federal courts.

* * * * * *

“This extensive and extended history of exclusion of blacks from the Alabama political and governmental system causes the explanation of the defendants — that the disparity in the treatment of welfare programs is a result of “just politics” — to be of no legal effect as an explanation. To the contrary, such an explanation, when read against the march of history, reaffirms our conclusion that there was a discriminatory purpose and effect in the treatment of AFDC. Many of the obstacles that Alabama once placed in the way of full-fledged participation by its black citizens in the political life and government of the state have been removed. We would be naive to decide this case under a pretense that those obstacles never existed.”

399 F.Supp. 355, 357.

13 . Failure to register may be, for example, a residual effect of past non-access, or of disproportionate education, employment, income level or living conditions. Or it may be in whole or in part attributable to bloc voting by the white majority, i. e., a black may think it futile to register.

14 . In which plaintiffs made out a prima facie case of discrimination that defendants were unable to refute.

15 . See also, e. g., Robinson v. Commissioners Court, supra, 505 F.2d at 679; Moore v. Leflore County Bd. of Election Commissioners, supra, 502 F.2d at 624.

15a . Although as discussed below in this opinion, motives were given undue weight at the expense of more fundamental concerns.

16 . If for no other reason, impact as an evidentiary factor, added to the present and past history, would preclude any such per se rule.

An analogy can be drawn between voting apportionment cases such as White v. Regester and school desegregation cases such as Green v. County School Board, 391 U.S. 430, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1968). In Green, the Court held that a school district which deliberately maintained a racially divided school system was under an affirmative duty to disestablish the dual school system, and that means such as freedom of choice plans, while not per se unconstitutional were unacceptable because they acted to strengthen rather than dismantle the dual system. In White v. Regester the Court in essence held that when a jurisdiction which has purposefully or intentionally created a denial of minority access to the political process adopts a plan of apportionment, it is under a duty to make sure that any apportionment plan it proposes ameliorates the denial of access.

17 . The Supreme Court’s latest decision on the racial impact of reapportionment, United Jewish Organizations of Williamsburgh, Inc. v. Carey, - U.S. -, 97 S.Ct. 996, 51 L.Ed.2d 229 (1977) lends strong support to the view that White v. Regester is alive and well. In United Jewish Organizations the opinions of Justices White and Stewart, representing the views of five members of the Court, both cite White v. Regester with approval. Id.

18 . Plaintiffs presented uncontradicted evidence that a pattern of strongly polarized racial bloc voting exists in Hinds County. Although the district court found what it felt to be inconsistencies in the racial bloc voting thesis, it nonetheless termed the plaintiffs’ evidence on racial bloc voting “persuasive.” 402 F.Supp. at 672 n.4.

19 . Accord: Klahr v. Williams, 339 F.Supp. 922, 927 (D.Ariz., 1972) (three-judge court). Commentators have also made note of the dilutive tendencies of plans which fragment minority voting communities. See, e. g., Clinton, Further Explorations in the Political Thicket, 59 Iowa L.Rev. 1, 4 (1973).

20 . Dr. Loewen, 48% in District 2 and 48.6% in District 5, with a margin of error of one to two percentage points; Dr. Henderson, 47% in both districts, which he described as “tolerably reliable.”

Plaintiffs made an offer of proof by Dr. Loewen that the percentage of black registered voters in Districts 2 and 5 were, respectively, 41.7% and 41.2%. His calculations were based on a study by the Institute of Politics at Millsaps College, located in Jackson. Defendants objected because the study was not available to be introduced, and the court sustained the,objection. In its opinion, however, the district court stated that even if it assumed the correctness of Dr. Loewen’s calculations based on the Millsaps study, the sole reason for lack of black voter registration was apathy. We have already pointed out that this conclusion is not supported by evidence.

21 . However, we add the caveat that the election of black candidates does not automatically mean that black voting strength is not minimized or canceled out. We said in Zimmer:

“[W]e cannot endorse the view that the success of black candidates at the polls necessarily forecloses the possibility of dilution of the black vote. Such success might, on occasion, be attributable to the work of politicians, who, apprehending that the support of a black candidate would be politically expedient, campaign to insure his election. Or such success might be attributable to political support motivated by different considerations— namely that election of a black candidate will thwart successful challenges to electoral schemes on dilution grounds. In either situation, a candidate could be elected despite the relative political backwardness of black residents in the electoral district. Were we to hold that a minority candidate’s success at the polls is conclusive proof of a minority group’s access to the political process, we would merely be inviting attempts to circumvent the Constitution. This we choose not to do. Instead, we shall continue to require an independent consideration of the record.”

485 F.2d at 1307. We continue to hold to the position taken by the court in that case.

22 . The panel opinion did not expressly reject the upward adjustment to “approximately 50%” but rather came up with its own conclusion of “about 47%,” 528 F.2d at 539 n.11. Whatever the merits of the shifts in percentages around the 50% level, it must be kept in mind that the plan was court ordered and that (a) court-ordered plans are to be held to higher standards than legislatively enacted plans and (b) statistical deviations and variances which might pass muster in a legislative plan are unacceptable when found in a court-ordered plan. For example, in Chapman v. Meier, 420 U.S. 1, 95 S.Ct. 751, 42 L.Ed.2d 766 (1975), the Supreme Court held that variances in population which would be tolerable in legislatively formulated plans were impermissible in the context of a court-ordered plan because “[a] court-ordered plan, however, must be held to higher standards than a State’s own plan[s].” 420 U.S. at 26, 95 S.Ct. at 765, 42 L.Ed.2d at 784.

23 . In fact this finding was the basis for the finding that there was no discriminatory purpose in the preparation of the 1973 plan.

24 . In this court, the panel opinion also gave weight to roads, bridges and land areas as “nonracial and rational criteria.” 528 F.2d at 538 & n.8 & 543.