We are asked to remand to the district court for entry of a consent decree, although some of the parties wish to proceed with the appeal. The Attorney General argues that these non-consenting parties are no obstacle. Chief Justice Phillips, General Morales argues, was sued in his official capacity as chair of the Judicial Districts Board and the Attorney General is the exclusive lawyer for the State of Texas. On its face, this is not a remarkable contention. However, General Morales also maintains that in his role as lawyer for the State, he need not represent the State's policymakers; he can ignore them and impose his own views. That is remarkable. The force of this contention is that the Attorney General is the sole arbiter of State policy when the State's interest is in litigation. This argument is put forward despite the fact that it leaves his scrambling for legislative support wholly inexplicable; under his presently claimed power, the Attorney General did not need to have the "settlement" adopted by statute. In any event, Texas law does not sanction his actions. Nor are we persuaded that Defendant-Intervenors, Judges Entz and Wood, lack standing to object to a proposed consent decree that will allow them to run county-wide. We deny the motion to remand.

A. The Authority of the Texas Attorney General

General Morales is not the first Texas Attorney General to have staked such a claim of authority. We rejected a similar effort in Baker v. Wade, 769 F.2d 289 (5th Cir.1985) (en banc). Baker challenged Texas' anti-sodomy statute, suing Holt, the Dallas City Attorney, and Wade, the Dallas County District Attorney. The district court certified a defendant class of officials responsible for enforcing the statute, with Holt and Wade as representatives, and the Attorney General of Texas intervened on behalf of the State. After the district court declared the statute unconstitutional, Danny E. Hill, Potter County's district attorney, filed a notice of appeal, concerned that the Attorney General might decide not to appeal. Hill was a member of the class, but was not a named defendant and had not sought to intervene. Hill's concern was realized when the Attorney General appealed but then withdrew the notice. After failing to persuade the Texas Supreme Court to order the Attorney General to pursue the appeal and unable to obtain leave to intervene from the district court, Hill asked this court for leave to intervene on appeal. We granted this request, explaining:

[Hill] would be seriously prejudiced were he not allowed to intervene, whereas allowing the appeal to proceed would prejudice no one. As a state official empowered by Texas law to enforce criminal laws, his interest and its impairment by the district court's judgment cannot be questioned....

In this case where the district court has rejected binding Supreme Court authority, the circuit court is entitled to conclude as a matter of law that those interests were inadequately represented by those who failed to pursue the appeal and that the state officer seeking to intervene was a proper party to do so.

Id. at 292.

Attorney General Mattox made a considered decision to accept the district court's declaration of unconstitutionality. That was a basic policy choice. Baker's relevant instruction lies in the fact that Attorney General Mattox's decision did not control. Baker rejected the very power claimed by this Attorney General. The power he would exercise cannot be squared with Baker.

That Attorney General Mattox decided to accept the ruling of the district court and Morales reaches for a similar result by a "settlement" fails to distinguish our holding in Baker. It does not respond to our holding that the Attorney General cannot bind state officials, his clients, to his own policy preferences. It is asserted that Hill as a district attorney, one of hundreds in Texas, was charged with the duty of enforcing the statute held unconstitutional. The law enforcement responsibility of a district attorney and that of the Chief Justice as chair of the redistricting board, however, do not differ in relevant ways. Indeed, that the Chief Justice may defend the suit is an a fortiori case under Baker. After all, his judicial duties aside, the Chief Justice's enforcement responsibilities under the redistricting provisions of state law are statewide. A district attorney's duties, however, run only to the county line. See Crane v. Texas, 766 F.2d 193 (5th Cir.1985).

The Texas Constitution requires the Chief Justice to supervise the state district courts. Article 5, § 7a established the Judicial Districts Board and made the Chief Justice its chair. Tex. Const. Art. 5, § 7a(a) and (b). The constitution charges the Board with the duty of reapportioning the judicial districts as the need arises. Id. § 7a(f). Among other things, the Board is required to consider a district's case load and population in its reapportionment decisions. Tex.Gov't Code Ann. § 24.945 (Vernon 1988). Of special importance to this case, the Board may not create districts smaller than a county without a general election. Tex. Const. Art. 5, § 7a(i); Tex.Gov't Code Ann. § 24.945(e) (Vernon 1988). A redistricting plan may not be proposed or adopted even in anticipation of such an election. Id. Indeed the district court denied leave to intervene in this suit to Midland County concluding it was not a real party in interest. A panel of this court agreed, observing that, unlike the Judicial Districts Board, the county lacked "the power to re-shape judicial districts." LULAC v. Clements, 884 F.2d 185, 187 (5th Cir.1989). Given the Chief Justice's role as chair of the Board and his state constitutional duties to manage state judicial districts and the efficiency of the courts, his contention that he has the authority to defend this lawsuit if the Attorney General will not is compelling. If a district attorney has a sufficient interest in protecting the laws he is duty-bound to enforce, we are persuaded that the Chief Justice as chairman of the Judicial Districts Board has a sufficient interest in protecting the current district court system.7

The concerns raised by the Baker dissent are not present here. The dissent was troubled by the fact that Hill was neither a named defendant nor a class representative, had never sought to intervene in the district court, and was not a named party when he filed his appeal. 769 F.2d at 294-95 (Rubin, J., dissenting). Here, Chief Justice Phillips has been a named defendant from the outset.

The state courts have had little occasion to face such a bold claim of authority. The few Texas cases that have grappled with the Attorney General's authority offer him little comfort. Morales points to Terrazas v. Ramirez, 829 S.W.2d 712 (Tex.1991), but in Terrazas, General Morales also failed in an effort to "settle" a legislative reapportionment case. Following the 1990 census, plaintiffs sued various state and county officials to prevent the use of the new census in reapportioning the legislature, because it allegedly undercounted minorities. The legislature proceeded with reapportionment and plaintiffs also challenged the resulting plans. General Morales defended the legislature's plans, lost at trial, and appealed directly to the Texas Supreme Court. Then, Morales agreed with the plaintiffs to settle the senate reapportionment challenge. The agreement included a redistricting plan that was submitted to the trial court and promptly accepted by it. Thereafter, five individuals, not parties to the suit, requested the Supreme Court of Texas to direct the trial court to vacate its judgments reconfiguring the senatorial districts, order the Attorney General to rescind the agreement, and direct the Secretary of State to withdraw submission of the plan for preclearance.

A plurality directed the trial court to vacate its judgments, but refused relief against the Attorney General. Four justices held that the trial court erred by failing to weigh all affected interests before entering the proposed decree. In Justice Hecht's words, "a district court cannot order a reapportionment plan for the State based on nothing more than an agreement of the Governor, the Attorney General, and a few citizens." Id. at 714.8 Indeed a majority believed the Attorney General's "discretion includes the authority to propose a settlement agreement in an action attacking the constitutionality of a reapportionment statute." Id. at 722 (Hecht, J.) (emphasis supplied).

In approving of the Attorney General's conduct, however, the plurality noted that he acted "on behalf of the state defendants[,]" giving him the authority "for his clients and even on his own, to suggest possible remedies ... [and] to negotiate a settlement." Id. (Hecht, J.) (emphasis added). "To hold that he did not would be to give him less authority than any party or any other attorney participating in the case." Id. (emphasis added). The Attorney General acts as counsel for state officials who are his clients.

Terrazas recognizes that the Attorney General represents officials. It does not follow that by doing so, the Attorney General steps into their shoes and assumes the policymaking roles of those officials, against whom specific relief is sought. We need not and do not decide the authority of the Attorney General when an official is named in his official capacity only to join the State. Plaintiff sought specific relief against the Judicial Districts Board chaired by defendant Chief Justice Phillips. The petitioners who objected to the settlement in Terrazas were not even parties to the suit. The Attorney General's power to settle for his clients is certainly no less than that of other lawyers, but Terrazas does not say that it is any greater. No lawyer may forge a settlement agreement over the express objection of his client. Here, to the extent that Morales represents the Chief Justice in the Justice's defense of his constitutionally assigned task, he may not ignore him. As Justice Wallace put it for the Texas Supreme Court in Public Utility Commission of Texas v. Cofer, 754 S.W.2d 121, 125 (Tex.1988):

We emphasize that when a statute confers a right upon the attorney general to represent an agency, it imposes a corollary duty, and the agency has every right to expect the same diligent and faithful representation as any other "client."

See also Hill v. Lower Colo. River Auth., 568 S.W.2d 473, 478 (Tex.Civ.App.--Austin 1978, writ ref'd n.r.e.) (rejecting an attempt by the attorney general to sue the Texas Water Rights Commission "in an effort to substitute his views for that of a lawfully constituted State administrative agency"); Charles Scribner's Sons v. Marrs, 114 Tex. 11, 262 S.W. 722, 729 (1924) (although attorney general had authority to represent the State Superintendent of Education, he did not have authority "to elect for the state to accept or reject a contract for text-books that is voidable," a decision for the Board of Education).

The Texas legislature has also recognized that the Attorney General represents the State but does not make its policies. "An admission, agreement, or waiver made by the attorney general in an action or suit to which the state is a party does not prejudice the rights of the state." Tex.Gov't Code Ann. § 402.004 (Vernon 1988); see also State v. Reagan County Purchasing Co., 186 S.W.2d 128, 135 (Tex.Civ.App.--El Paso 1944, writ ref'd w.o.m.) ("acts beyond the scope of [Attorney General's] delegated power are not binding on the State"). If the Texas Attorney General could make policy for the State, this provision would be superfluous, for he could never violate it. He would in effect be the State. When faced with this statute before, we appropriately noted that "Texas has been at particular pains to attempt to circumscribe the power of the attorney general to make admissions on its behalf." United States v. Texas, 680 F.2d 356, 368 n. 17 (5th Cir.1982).9

Stated another way, the Attorney General's right to represent state officials or state agencies cannot be gainsaid, see Hill v. Texas Water Quality Bd., 568 S.W.2d 738, 741 (Tex.Civ.App.--Austin 1978, writ ref'd n.r.e.); Morris v. Smiley, 378 S.W.2d 149, 152 (Tex.Civ.App.--Austin 1964, writ ref'd n.r.e.), but he must in fact represent them. He cannot ignore his clients and bind the State against their wishes.10 This is not to say that the Chief Justice is the sole arbiter. Both he and the Attorney General are named parties to this suit, and each has the right to be heard in this case. The Attorney General's authority does not allow him to "close either the mouth of [Phillips] or the ears of the courts, when there are complaints that the Attorney General or his assistants are not in fact fulfilling their duty." Cofer, 754 S.W.2d at 125.

We deny the Attorney General's motion to disqualify Phillips' counsel. We also deny plaintiffs' attempt to nonsuit the Texas Judicial Districts Board, including its chair, Chief Justice Phillips. The motion was filed immediately after oral arguments before the en banc court on May 24, 1993. Rule 41(a) governs voluntary dismissals and provides that a plaintiff may dismiss an action without order of the court in two circumstances. The plaintiff must either file the notice of dismissal before the adverse party serves its answer or summary judgment motion, whichever occurs first, or file a stipulation of dismissal signed by all parties who have appeared in the case. Fed.R.Civ.P. 41(a)(1). The notice of nonsuit comes almost five years after the defendants have answered, and none of the defendant-aligned parties has signed the motion. Plaintiffs have no unilateral right to dismiss the Chief Justice and Judicial Districts Board. We will not permit plaintiffs to seek injunctive relief against the office held by Chief Justice Phillips for almost five years and then dismiss him when he declines to settle. See Davis v. Huskipower Outdoor Equipment Corp., 936 F.2d 193, 199 (5th Cir.1991) (affirming refusal to dismiss defendant more than a year after the case was removed to federal court); Radiant Technology Corp. v. Electrovert USA Corp., 122 F.R.D. 201 (N.D.Tex.1988) (motion to voluntarily dismiss under Rule 41 should be denied when plaintiff seeks to circumvent an expected adverse result).

We deny the motion of the district judges as Defendant-Intervenors to realign General Morales with plaintiffs. Morales' efforts to settle the case do not require this measure. He is entitled to take a position in settlement negotiations that is different from his trial posture. However, if the Attorney General changes his views on the merits of the case, realigning him with the plaintiffs may be appropriate. Cf. Delchamps, Inc. v. Alabama State Milk Control Bd., 324 F.Supp. 117, 118 (M.D.Ala.1971) (allowing Alabama Attorney General, who like the Texas Attorney General took an oath to defend both state and federal law, to realign himself with plaintiffs to challenge the federal constitutionality of a state law). We also deny Judge Wood's motion to disqualify General Morales as counsel for the State. While we have rejected his claimed power to bind against their will state officials he is charged to represent, he is nonetheless their counsel.

The Attorney General may represent state officials in their official capacities, but there is no contention that General Morales represents Judges Wood and Entz.11 They have intervened in their personal capacities and have elected to obtain their own counsel.12 As we earlier observed, the proposed consent decree would allow Judge Wood and Judge Entz to continue to run county-wide. General Morales urges that they therefore lack standing to either prosecute the suit or object to the proposed decree.

To this point, the standing of the intervening parties has not been questioned. To the contrary, the intervenors played an important role at trial and have since taken the lead. After the federal district judge's ruling in favor of plaintiffs, the notice of appeal was first filed by Judges Wood and Entz, not by the Attorney General. Only the district judge's adherence to nonpartisan elections prodded the Attorney General to appeal. The Houston Lawyers' Association intervened by the same order as the intervening judges and carried the appeal from our first en banc decision to the United States Supreme Court.13 Even now, no one questions the earlier uncontested standing of the intervenors; nor could they. Wood and Entz intervened in part to protect their tenure as elected judges. The district court found that they were illegally elected.

Of course, these intervenors must satisfy Article III to appeal on their own. Diamond v. Charles, 476 U.S. 54, 68, 106 S.Ct. 1697, 1706, 90 L.Ed.2d 48 (1986); Didrickson v. United States Department of the Interior, 982 F.2d 1332, 1337-39 (9th Cir.1992); United States v. Western Elec. Co., 900 F.2d 283 (D.C.Cir.1990). A case or controversy between the State and plaintiffs remains. The parties have a right to a determination of that appeal, unless they consent to a remand. See Wheeler v. American Home Products Corp., 582 F.2d 891, 896 (5th Cir.1977) ("once intervention has been allowed, the original parties may not stipulate away the rights of the intervenor"); see also Sheffield v. Itawamba County Bd. of Supervisors, 439 F.2d 35, 36 (5th Cir.1971) ("having instituted a public lawsuit to secure rectification for a constitutional wrong of wide dimension, [plaintiffs] cannot privately determine its destiny"). Put another way, the proposed settlement does not deprive this court of its jurisdiction to hear the appeal independently perfected by Judges Wood and Entz, an appeal from a decision that declared their elections illegal.

Even assuming the proposed settlement foreclosed the intervening judges' standing to protect their tenure, Wood and Entz would still have a sufficient stake in the litigation to satisfy the Constitution. In an earlier opinion in this case we said

[a]sserting interests both as a Texas voter and as a sitting Texas district judge, Judge Sharolyn Wood moved to intervene on the side of the defendant--the state. The court allowed her to intervene in her personal capacity, permitting Dallas County District Judge Harold Entz to do so as well.

League of United Latin American Citizens v. Clements, 923 F.2d 365, 367 (5th Cir.1991) (emphasis added). In the district court, Judge Entz moved to intervene as a defendant to defend on his interests as a judge, a lawyer, and a registered voter in and citizen of Dallas County. The court's order granting intervention in his individual capacity encompasses all of these interests.

Thus, the proponents of remand view the judges' intervention too narrowly, for Wood and Entz also have standing as voters. The settlement agreement would deprive voters of the right to vote for all judges with general jurisdiction over their county. The Eleventh Circuit recently confronted a similar situation. Meek v. Metropolitan Dade County, 985 F.2d 1471 (11th Cir.1993), was a voting rights challenge to the at-large election of county commissioners in Dade County, Florida. As here, individual voters challenged a liability finding that elected officials would not contest on appeal. Swann and Sampson were Dade County residents and voters. The district court denied them leave to intervene before trial. In a second request for leave to intervene, Swann and Sampson sought to preserve their right to appeal in the event of an adverse judgment and a decision by defendants not to appeal. The court found the at-large system illegal and, as feared, the County Commission decided not to appeal. When the district court denied their third motion to intervene, Swann and Sampson appealed.

Our sister court held that the district court abused its discretion in denying the intervention and affirmed the district court on the merits. The court held that the voters had standing, a sufficient interest both to intervene and carry the appeal when the state agency declined to do so. In its view, if the court were to deny standing to these voters, it "would be forced to conclude that most of the plaintiffs also lack standing, a conclusion foreclosed by the many cases in which individual voters have been permitted to challenge election practices." Id. at 1480 (citing Whitcomb v. Chavis, 403 U.S. 124, 91 S.Ct. 1858, 29 L.Ed.2d 363 (1971); Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962)). We agree that the standing of voters in a voting rights case cannot be gainsaid. See also O'Hair v. White, 675 F.2d 680, 688-90 (5th Cir.1982) (en banc); Henderson v. Fort Worth Independent School Dist., 526 F.2d 286, 288-90 (5th Cir.1976).14

Even if all of the litigants were in accord, it does not follow that the federal court must do their bidding. The proposal is not to dismiss the lawsuit, but to employ the injunctive power of the federal court to achieve a result that the Attorney General and plaintiffs were not able to achieve through the political process. The entry of a consent decree is more than a matter of agreement among litigants. It is a "judicial act." United States v. Swift & Co., 286 U.S. 106, 115, 52 S.Ct. 460, 462, 76 L.Ed. 999 (1932). "[W]hen [the court] has rendered a consent judgment it has made an adjudication." Kaspar Wire Works, Inc. v. Leco Eng'g & Machine, Inc., 575 F.2d 530, 538-39 (5th Cir.1978) (quoting 1B James W. Moore et al., Moore's Federal Practice p 0.409. Courts must exercise equitable discretion before accepting litigants' invitation to perform the judicial act.

A consent decree must arise from the pleaded case and further the objectives of the law upon which the complaint is based. See Local No. 93, Int'l Ass'n of Firefighters v. City of Cleveland, 478 U.S. 501, 525, 106 S.Ct. 3063, 3077, 92 L.Ed.2d 405 (1986). When presented with a proposed judgment, the court "must not merely sign on the line provided by the parties." United States v. City of Miami, 664 F.2d 435, 440 (5th Cir.1981) (en banc) (Rubin, J.).

Because the consent decree does not merely validate a compromise but, by virtue of its injunctive provisions, reaches into the future and has continuing effect, its terms require more careful scrutiny. Even when it affects only the parties, the court should, therefore, examine it carefully to ascertain not only that it is a fair settlement but also that it does not put the court's sanction on and power behind a decree that violates Constitution, statute, or jurisprudence. ... If the decree also affects third parties, the court must be satisfied that the effect on them is neither unreasonable nor proscribed.

Id. at 441 (Rubin, J.) (emphasis added); see also Overton v. City of Austin, 748 F.2d 941, 952-53 (5th Cir.1984); Williams v. City of New Orleans, 729 F.2d 1554, 1559 (5th Cir.1984) (en banc) (Williams, J.).

The emphasized passage makes a critical point. A proposed consent decree is generally--as here--a request for the court to exercise its equitable powers. It involves the court's sanction and power and is not a tool bending without question to the litigants' will. As Justice Harlan wrote, "parties cannot, by giving each other consideration, purchase from a court of equity a continuing injunction." System Federation No. 91, Ry. Employees' Dep't, AFL-CIO v. Wright, 364 U.S. 642, 651, 81 S.Ct. 368, 373, 5 L.Ed.2d 349 (1961).15

We have recognized that when fewer than all litigants forge a consent decree, issues affecting other parties remain to be adjudicated. City of Miami, 664 F.2d at 440 (Rubin, J.). As eleven judges recognized in the same case, our preferences for settlement and accord are insufficient to justify the imposition of a decree that infringes upon the rights of third parties. See id. at 451 (Gee, J., concurring and dissenting). A consent decree "cannot dispose of the valid claims of nonconsenting intervenors; if properly raised, these claims remain and may be litigated by the intervenor." Local 93, 478 U.S. at 529, 106 S.Ct. at 3079.

Courts must be especially cautious when parties seek to achieve by consent decree what they cannot achieve by their own authority. Consent is not enough when litigants seek to grant themselves powers they do not hold outside of court. People Who Care v. Rockford Bd. of Educ., 961 F.2d 1335, 1337 (7th Cir.1992). For example, a local government may not use a consent decree to avoid a state law requiring a referendum before the issuance of construction bonds. Dunn v. Carey, 808 F.2d 555, 560 (7th Cir.1986).

We expressed our concern regarding the risks attending consent decrees in Overton v. City of Austin, 748 F.2d 941 (5th Cir.1984). In that case, plaintiffs and the city attorney, acting for the city council, proposed a decree substituting single-member council districts for the at-large council established by the city charter. A dissenting council member maintained that the council lacked the authority to change the existing scheme without a city-wide referendum. Id. at 947 n. 5. In the district court, several black voters sought to intervene as defendants on the ground that subdistricting would curtail their voting power. Id. at 944. The plaintiffs petitioned for a writ of mandamus to compel the district court to implement the proposed decree without further consideration. We refused to issue the writ. In doing so, Overton recognized the danger of manipulation faced by federal courts. We may be asked to effectuate substantive results that government officials are not empowered to bring about themselves. Id. at 956. The risk can be realized in many ways, but is palpable where sharply divided state officials would draw the federal courts into a partisan political battle.

Our job is to decide a case or controversy. The parties' high-strung rhetoric does not fully obscure the reality that a live controversy yet exists. By declining to remand this case, we do not slow one whit any march for change in Texas. Its elected leaders are always free to pursue whatever scheme they think best, through the normal political process. Texas links the jurisdiction and electoral bases of its district judges and the still-contested question for this court is its legality.

The procedural posture of this case when the request to remand to the district court was heard is important. The issues in this case were well known to the entire court. The case had been fully tried and its appeal had twice been before a panel of this court and was before the en banc court a second time. The issues had been fully aired in the panel majority and dissenting opinion when this court vacated the panel opinion. In sum, we are asked to remand to the district court to consider entry of a "consent" decree and to decide whether it would "put the court's sanction on and power behind a decree that violates Constitution, statute, or jurisprudence." City of Miami, 664 F.2d at 441 (Rubin, J.). More precisely put, any federal decree must be a tailored remedial response to illegality. Cf. Shaw v. Reno, --- U.S. ----, 113 S.Ct. 2816, 125 L.Ed.2d 511 (1993). We are asked to remand for this determination although we are not persuaded that there is any illegality.

It is not a matter of our withholding announcement of our decision. We could not, in any event, remand without correcting the district court's misapprehensions of law, found even by our dissenting colleagues. Significant legal errors infected the trial court's earlier judgment, including its refusal to consider the effect of partisan voting, its finding of liability in Travis County now undefended, its selective aggregation of language and ethnic minorities, its refusal to accord weight to the State's linkage interest in the totality of the circumstances, and finally, its heavy reliance upon historical societal discrimination without bringing this history home to this case. We cannot escape this error-correcting task--and when it is done, there is no case. The amicus United States agrees with our conclusion that, once the proper legal standards are determined, the record presents no factual issue that needs revisiting. It follows that the proposed consent decree cannot respond to sufficiently identified illegality--because the record demonstrates that there is none.

Finally, the parties urging remand point to Chisom v. Edwards, 970 F.2d 1408 (5th Cir.1992), where we remanded a voting rights case for the district court to enter a consent decree. That case challenged the method of electing Louisiana's Supreme Court Justices. Chisom v. Roemer, --- U.S. ----, ----, 111 S.Ct. 2354, 2358, 115 L.Ed.2d 348 (1991). Our remand in Chisom, however, resulted from different circumstances.

First, all parties joined the motion to remand, as we were careful to point out in our order:

The Joint Motion to Remand to Effectuate Settlement filed by all parties is hereby granted; and this case is remanded to the United States District Court for the Eastern District of Louisiana for the limited purpose of effectuating a settlement. Jurisdiction of the appeals is hereby retained. Upon notification that a consent judgment has been entered by the district court, the appeals will be dismissed. We express no opinion, of course, on the settlement or judgment.

Chisom, 970 F.2d at 1409 (emphasis added). As we have discussed, the same is not true here.16

Second, the parties in Chisom came to this court asking for remand carrying a duly enacted state law with them. They did not seek to invoke the preemptive force of the federal law. The decree in Chisom was agreed to by all parties and adopted into law by the state legislature. The consent decree did not set aside any state laws--and not by accident. It was carefully crafted to that end. In Louisiana, the legislature can create more supreme court districts with a two-thirds vote from both houses. La. Const. Art. 5, § 4.17 Article 5, § 3 of the Louisiana Constitution fixes the number of supreme court justices at seven and establishes that each shall serve a ten-year term.18 Because the state wished to create the Orleans district without upsetting the terms of the sitting justices, Louisiana had to temporarily expand the supreme court to eight members.19

While § 3 limits the size of the supreme court to seven justices, Art. 5, § 5(A) permits the Louisiana Supreme Court to "assign a sitting or retired judge to any court." La. Const. Art. 5, § 5(A). The legislature therefore created an additional place for a judge on the Court of Appeal for the Fourth Circuit, who, upon election, would be assigned to the supreme court to serve, in reality, as the eighth justice. See La.Rev.Stat.Ann. § 13:312.4 (West Supp.1993). This temporary judgeship was to expire with a vacancy on the supreme court from the first district. The vacancy would be filled by an election in the newly created seventh district comprised of Orleans Parish. La.Rev.Stat.Ann. § 13:101.1 (West Supp.1993). Both of these provisions were contained in Act 512 which, after receiving the required two-thirds vote in both houses of the legislature, became law on June 22, 1992. Official Journal of the Proceedings of the Senate of the State of Louisiana, 18th Reg. Sess. at 24 (June 18, 1992); Official Journal of the Proceedings of the House of the State of Louisiana, 18th Reg. Sess. at 31 (June 16, 1992). The Louisiana Legislature provided that Act 512 would not go into effect unless the federal court entered a consent decree in Chisom. La.Rev.Stat.Ann. § 13:101.1 (West Supp.1993).

The Texas Legislature refused to take positive action, and the settlement agreement attempts to avoid constitutional requirements. The Texas Constitution requires that judges be elected from districts no smaller than a county, absent a majority vote by the citizens of that county. Tex. Const. Art. 5, §§ 7, 7a(i).20 The settlement agreement is not contingent on approval by the voters of each county. The legislature has not proposed a constitutional amendment. It has made no laws.F. Federalism

Then we have all sides claiming the high ground of federalism. Some of the assertions are creative. The suggestion that state political groups, unable to muster sufficient political force to change the system, can by "agreement" enlist the preemptive power of the federal court to achieve the same end stands federalism on its head. Of course, we defer to legislative will and state decision. Here, the "decision" to which we are asked to defer is a decision by a political faction that the federal court should order the state to change its system. We do not share this curious view of federalism.

As amended, § 2 of the Voting Rights Act prohibits states from imposing or applying any "standard, practice, or procedure ... which results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color." A minority group may establish a violation of this provision by proving "that its members have less opportunity than other members of the electorate to participate in the political process and to elect representatives of their choice."21 Congress intended "to make clear that proof of discriminatory intent is not required to establish a violation of Section 2" by "restor[ing] the legal standards" which prevailed in constitutional voting discrimination cases prior to Mobile v. Bolden, 446 U.S. 55, 100 S.Ct. 1490, 64 L.Ed.2d 47 (1980). S.Rep. 417 at 2, reprinted in 1982 U.S.Code Cong. & Admin.News at 206. Specifically, the 1982 amendments "codify" the "results test" articulated in White v. Regester, 412 U.S. 755, 93 S.Ct. 2332, 37 L.Ed.2d 314 (1973). Id.

Section 2 claims brought against multimember schemes are governed by the framework established in Thornburg v. Gingles, 478 U.S. 30, 106 S.Ct. 2752, 92 L.Ed.2d 25 (1986). Under Gingles, plaintiffs challenging an at-large system on behalf of a protected class of citizens must demonstrate that (1) the group is sufficiently large and geographically compact to constitute a majority in a single-member district; (2) it is politically cohesive; and (3) the white majority votes sufficiently as a bloc to enable it usually to defeat the minority's preferred candidate. Growe v. Emison, --- U.S. ----, ----, 113 S.Ct. 1075, 1084, 122 L.Ed.2d 388 (1993); Gingles, 478 U.S. at 50-51, 106 S.Ct. at 2766. Satisfaction of these three "preconditions," Voinovich v. Quilter, --- U.S. ----, ----, 113 S.Ct. 1149, 1157, 122 L.Ed.2d 500 (1993), is necessary, Gingles, 478 U.S. at 50, 106 S.Ct. at 2766, but not sufficient to establish liability under § 2. Chisom v. Roemer, --- U.S. ----, ----, 111 S.Ct. 2354, 2365, 115 L.Ed.2d 348 (1991); Citizens for Better Gov't v. City of Westwego, 946 F.2d 1109, 1116 (5th Cir.1991) (Westwego III). Plaintiffs must also show that, under the "totality of circumstances," they do not possess the same opportunities to participate in the political process and elect representatives of their choice enjoyed by other voters. Courts are guided in this second inquiry by the so-called Zimmer factors listed in the Senate Report.22

A central issue here, one that divided the panel and one over which the parties vigorously disagree, concerns Gingles' white bloc voting inquiry and the closely related Zimmer factor directing courts to examine "the extent to which voting ... is racially polarized." S.Rep. 417 at 29, reprinted in 1982 U.S.Code Cong. & Admin.News at 206. As the Court in Gingles held, the question here is not whether white residents tend to vote as a bloc, but whether such bloc voting is "legally significant." Gingles, 478 U.S. at 55, 106 S.Ct. at 2768; Salas v. Southwest Texas Jr. College Dist., 964 F.2d 1542, 1553 (5th Cir.1992). In finding a violation of § 2 in each of the nine challenged counties, the district court held that plaintiffs need only demonstrate that whites and blacks generally support different candidates to establish legally significant white bloc voting. Because "it is the difference between choices made by blacks and whites alone ... that is the central inquiry of § 2," the court excluded evidence tending to prove that these divergent voting patterns were attributable to factors other than race as "irrelevant" and "legally [in]competent."

On appeal, defendants contend that the district court erred in refusing to consider the nonracial causes of voting preferences they offered at trial. Unless the tendency among minorities and whites to support different candidates, and the accompanying losses by minority groups at the polls, are somehow tied to race, defendants argue, plaintiffs' attempt to establish legally significant white bloc voting, and thus their vote dilution claim under § 2, must fail. When the record indisputably proves that partisan affiliation, not race, best explains the divergent voting patterns among minority and white citizens in the contested counties, defendants conclude, the district court's judgment must be reversed.

We agree. The scope of the Voting Rights Act is indeed quite broad, but its rigorous protections, as the text of § 2 suggests, extend only to defeats experienced by voters "on account of race or color." Without an inquiry into the circumstances underlying unfavorable election returns, courts lack the tools to discern results that are in any sense "discriminatory," and any distinction between deprivation and mere losses at the polls becomes untenable. In holding that the failure of minority-preferred candidates to receive support from a majority of whites on a regular basis, without more, sufficed to prove legally significant racial bloc voting, the district court loosed § 2 from its racial tether and fused illegal vote dilution and political defeat. In so doing, the district court ignored controlling authorities: Whitcomb v. Chavis, 403 U.S. 124, 91 S.Ct. 1858, 29 L.Ed.2d 363 (1971), which established a clean divide between actionable vote dilution and "political defeat at the polls"; the 1982 amendments, enacted to restore a remedy in cases "where a combination of public activity and private discrimination have joined to make it virtually impossible for minorities to play a meaningful role in the electoral process," Hearings on the Voting Rights Act Before the Subcomm. on the Constitution of the Senate Comm. of the Judiciary, 97th Cong., 2d Sess. 1367-68 (statement of Prof. Drew Days) (emphasis added); and Thornburg v. Gingles, 478 U.S. 30, 106 S.Ct. 2752, 92 L.Ed.2d 25 (1986), where a majority of the Justices rejected the very test employed by the district court as a standard crafted to shield political minorities from the vicissitudes of "interest-group politics rather than a rule hedging against racial discrimination." Id. at 83, 106 S.Ct. at 2782 (White, J., concurring); id. at 101, 106 S.Ct. at 2792 (O'Connor, J., joined by Burger, C.J., Powell and Rehnquist, JJ., concurring). We must correct these errors.

The Senate Report indicates that the 1982 amendments to § 2 were intended to "codify" the results test as employed in White and Whitcomb. See S.Rep. 417 at 2, 20-23, 32-33, reprinted in 1982 U.S.Code Cong. & Admin.News at 197-201, 210-11; Gingles, 478 U.S. at 97, 106 S.Ct. at 2790 (O'Connor, J., concurring) ("In enacting § 2, Congress codified the 'results' test this Court had employed, as an interpretation of the Fourteenth Amendment, in White and Whitcomb "); Jones v. City of Lubbock, 727 F.2d 364, 379 (5th Cir.1984) (the amended § 2 "codifies pre-Bolden voting dilution law"). Consequently, "it is to Whitcomb and White that we should look in the first instance in determining how great an impairment of minority voting strength is required to establish vote dilution in violation of § 2." Gingles, 478 U.S. at 97, 106 S.Ct. at 2790 (O'Connor, J., concurring).

In Whitcomb, black citizens residing in one part of Marion County, referred to as the "ghetto" by the Court, claimed that the county's at-large method of electing members to the state legislature unconstitutionally diluted their votes. The "[s]trong differences" between "ghetto" residents and adjacent communities "in terms of housing conditions, income and educational levels, rates of unemployment, juvenile crime, and welfare assistance," 403 U.S. at 132, 91 S.Ct. at 1863,23 correlated closely with voting patterns in the county. "Ghetto" residents "voted heavily Democratic," but since the county's more affluent white majority consistently voted Republican, black-preferred candidates were defeated in four of the five elections between 1960 and 1968. Id. at 150, 91 S.Ct. at 1872. The Whitcomb Court recognized that the at-large electoral scheme caused the "voting power of ghetto residents [to be] 'cancelled out,' " id. at 153, 91 S.Ct. at 1874, but held that this result by itself did not provide grounds for relief. Noting that blacks enjoyed full access to the political process,24 the Court reasoned that "had the Democrats won all of the elections or even most of them, the ghetto would have no justifiable complaints about representation." Id. at 152, 91 S.Ct. at 1873. For this reason, the Court concluded that the "failure of the ghetto to have legislative seats in proportion to its population emerges more as a function of losing elections than of built-in bias against poor Negroes." Id. at 153, 91 S.Ct. at 1874.

The Whitcomb Court was reluctant to view the plaintiffs' claims of vote dilution as anything more than "a euphemism for political defeat at the polls," id., for, absent evidence of a lack of access to the political system, there was no principle by which the Court could distinguish the "ghetto's" claims and those of other unsuccessful political groups:[A]re poor Negroes of the ghetto any more under-represented than poor ghetto whites who also voted Democratic and lost, or any more discriminated against than other interest groups or voters in Marion County with allegiance to the Democratic Party, or, conversely, any less represented than Republican areas or voters in years of Republican defeat? We think not. The mere fact that one interest group or another concerned with the outcome of Marion County elections has found itself outvoted and without legislative seats of its own provides no basis for invoking constitutional remedies where, as here, there is no indication that this segment of the population is being denied access to the political system.

Id. at 154-55, 91 S.Ct. at 1875. To grant relief to black residents in this case, the Court held, "would make it difficult to reject claims of Democrats, Republicans, or members of any political organization in Marion County who live in what would be safe districts in a single-member district system but who in one year or another, or year after year, are submerged in a multimember district vote." Id. at 156, 91 S.Ct. at 1876.

The Court's assertion that plaintiffs' racial vote dilution claim was indistinguishable from complaints which might be brought by any unsuccessful interest group hinged on its determination that "ghetto" residents did not suffer from a lack of access to the political process. Despite the presence of vast disparities in virtually every significant measure of socioeconomic status, the Court found that black voters stood on the same footing with whites in vying for representation within Marion County. "Ghetto" residents had in fact experienced a string of losses at the polls in recent years, but these defeats were shared equally among all members of the Democratic Party.

The Court confronted very different circumstances two years later in White v. Regester, 412 U.S. 755, 93 S.Ct. 2332, 37 L.Ed.2d 314 (1973). The Court confirmed Whitcomb's rejection of the claim that "every racial or political group has a constitutional right to be represented in the state legislature," id. at 769, 93 S.Ct. at 2341, and reiterated the standard established in its earlier decision: a minority group must prove "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." Id. at 766, 93 S.Ct. at 2339 (citing Whitcomb, 403 U.S. at 149-50, 91 S.Ct. at 1872). Unlike the plaintiffs in Whitcomb, however, the black residents of Dallas County and the Hispanic voters in Bexar County each established that they had been effectively excluded from the political processes leading to the nomination and election of the Texas House of Representatives. 412 U.S. at 766-70, 93 S.Ct. at 2339-41.

Specifically, black voters in Dallas labored under the yoke of Texas' long history of official discrimination and were subjected to several procedural devices which, while not invidious in themselves, "enhanced the opportunity for racial discrimination." Id. at 766, 93 S.Ct. at 2339. "More fundamentally," the Court noted, the Dallas Committee for Responsible Government, "a white-dominated organization that is in effective control of Democratic Party candidate slating," had slated only two black candidates in its history, who, not coincidentally, constituted the only two blacks ever to have served in the Dallas County delegation to the Texas House since Reconstruction. Id. at 766-67, 93 S.Ct. at 2340. The DCRG failed to display any "good-faith concern for the political and other needs and aspirations of the Negro community," and in fact regularly relied on racial campaign tactics to defeat candidates supported by black residents. Id. at 767, 93 S.Ct. at 2340. Consequently, the Court had no reason to disturb the district court's conclusion "that 'the black community has been effectively excluded from participation in the Democratic primary selection process,' and was therefore generally not permitted to enter into the political process in a reliable and meaningful manner." Id. (quoting Graves v. Barnes, 343 F.Supp. 704, 726 (W.D.Tex.1972)).

The Court also upheld a similar finding that Mexican-Americans likewise had been " 'effectively removed from the political processes of Bexar [County] in violation of all the Whitcomb standards.' " Id. 412 U.S. at 769, 93 S.Ct. at 2341 (quoting Graves, 343 F.Supp. at 733). Like black residents of Texas, Mexican-Americans "had long 'suffered from, and continue[d] to suffer from, the results and effects of invidious discrimination and treatment in the field of education, employment, economics, health, politics and others.' " Id., 412 U.S. at 768, 93 S.Ct. at 2340 (quoting Graves, 343 F.Supp. at 728). In addition, the district court determined that "cultural and language barrier[s] ... 'conjoined with the poll tax and the most restrictive voter registration procedures in the nation have operated to effectively deny Mexican-Americans access to the political processes in Texas even longer than the Blacks were formally denied access by the white primary.' " Id. (quoting Graves, 343 F.Supp. at 731). The exclusionary effects of past and present discrimination, the Court found, were palpably reflected in low voting registration among Mexican-Americans, the election of only five Bexar County Mexican-Americans to the Texas Legislature since 1880, and the county delegation's unresponsiveness to the community's interests. Id., 412 U.S. at 768-69, 93 S.Ct. at 2341. Given that the district court's findings flowed from "a blend of history and an intensely local appraisal" of conditions in Bexar County, the Court was "not inclined to overturn" its conclusion that the multimember district "invidiously excluded Mexican-Americans from effective participation in political life." Id. at 769, 93 S.Ct. at 2341. As we will explain, this earlier time in Texas history and the elections at issue here present stark contrasts. The record before us contains no evidence that past or present discrimination has affected minorities' political access in any way.

The principles announced and applied in Whitcomb and White are instructive and, we believe, controlling. As Justice White, the author of these opinions, recently indicated, the central "theme" of Whitcomb and White is "that it is not mere suffering at the polls but discrimination in the polity with which the Constitution is concerned." Shaw v. Reno, --- U.S. ----, ----, 113 S.Ct. 2816, 2835, 125 L.Ed.2d 511 (1993) (White, J., dissenting). Beyond the bounds of this litigation, the clarity with which the Whitcomb Court articulated the principles underlying the "results" test has largely forestalled confusion or doubt, even among those whom plaintiffs might be inclined to count as allies. See, e.g., Jones v. City of Lubbock, 727 F.2d 364, 384 (5th Cir.1984) ("Even where an at-large system interacts with a racially or ethnically polarized electorate to the disadvantage of the minority, the 'result' is not necessarily a denial of political access.... [T]he 'result' in Whitcomb [is] that polarized voting does not render an at-large system dilutive of minority voting strength"); Pamela S. Karlan, Undoing the Right Thing: Single-Member Offices and the Voting Rights Act, 77 Va.L.Rev. 1, 22 n. 78 (1991). Justice Marshall, for example, provided a clear explanation of the Court's holding in his dissent in Mobile v. Bolden, 446 U.S. 55, 100 S.Ct. 1490, 64 L.Ed.2d 47 (1980):

In Whitcomb v. Chavis, we again repeated and applied the Fortson [v. Dorsey, 379 U.S. 433, 85 S.Ct. 498, 13 L.Ed.2d 401 (1965) ] [effects] standard, but determined that the Negro community's lack of success at the polls was the result of partisan politics, not racial vote dilution. The Court stressed that both the Democratic and Republican Parties had nominated Negroes and several had been elected. Negro candidates lost only when their entire party slate went down to defeat. In addition, the Court was impressed that there was no finding that officials had been unresponsive to Negro concerns.

Id. at 109, 100 S.Ct. at 1522 (Marshall, J., dissenting) (citations omitted).

Justice Marshall's references to the "lack of success at the polls" as a "result" of "partisan politics, not racial vote dilution," closely tracks the relevant language in Whitcomb, where the Court held that the "cancell[ing] out" of the "voting power of ghetto residents" was more "a function of losing elections" or "political defeat" than of "built-in bias against poor Negroes." 403 U.S. at 153, 91 S.Ct. at 1874. Absent evidence that minorities have been excluded from the political process, a "lack of success at the polls" is not sufficient to trigger judicial intervention. Courts must undertake the additional inquiry into the reasons for, or causes of, these electoral losses in order to determine whether they were the product of "partisan politics" or "racial vote dilution," "political defeat" or "built-in bias." It is only upon concluding that a minority group's failure to prevail at the polls, that is, their failure to attract the support of white voters, was the "result" or "function" of "racial vote dilution" or "built-in bias," that a court may find that minority plaintiffs have suffered "a denial or abridgement of the right ... to vote on account of race or color." In sum, Whitcomb unmistakably prescribes the very inquiry into the causes underlying the lack of support for minority-preferred candidates among white voters with which the district court dispensed.

As Justice Marshall suggested, failures of a minority group to elect representatives of its choice that are attributable to "partisan politics" provide no grounds for relief. Section 2 is "a balm for racial minorities, not political ones--even though the two often coincide." Baird v. Consolidated City of Indianapolis, 976 F.2d 357, 361 (7th Cir.1992) (citing Whitcomb ). "The Voting Rights Act does not guarantee that nominees of the Democratic Party will be elected, even if black voters are likely to favor that party's candidates." Id. Rather, § 2 is implicated only where Democrats lose because they are black, not where blacks lose because they are Democrats. While this rule is easier stated than applied, the Whitcomb Court's application of the "results" test to the facts before it provides helpful and indeed dispositive guidance. As we explain in greater detail below, the Court's dismissal in Whitcomb of the plaintiffs' vote dilution claim as a "mere euphemism for political defeat at the polls," despite evidence of polarized voting, the lingering effects of past discrimination, and little electoral success among minority candidates, precludes finding a violation of § 2 in most, but not all, of the counties at issue.

The Senate Report accompanying the 1982 amendments to § 2 states that Congress intended to "codify" the "results test" articulated and employed in Whitcomb and White. Congress of course retained the statutory language restricting relief under § 2 to "denial[s] or abridgment[s] of the right ... to vote on account of race or color." This limitation was not so much the product of legislative discretion as constitutional imperative, given that the scope of Congress' remedial power under the Civil War Amendments is defined in large part by the wrongs they prohibit. See, e.g., City of Rome v. United States, 446 U.S. 156, 206, 100 S.Ct. 1548, 1576, 64 L.Ed.2d 119 (1980) (Rehnquist, J., dissenting); Oregon v. Mitchell, 400 U.S. 112, 152, 91 S.Ct. 260, 279, 27 L.Ed.2d 272 (1970) (Harlan, J., concurring in part and dissenting in part). Thus, the Senate Report explained that the 1982 amendments avoided constitutional difficulty because "the very terms and operation of [§ 2] confine its application to actual racial discrimination." S.Rep. 417 at 43, reprinted in 1982 U.S.Code Cong. & Admin.News at 221.

Congress embraced Whitcomb on terms consistent with § 2's limitation to cases of "actual racial discrimination." Noting that the claim before the Court in Whitcomb alleged vote dilution on grounds that "black ghetto residents with [distinct] legislative interests had been consistently underrepresented in the legislature," the Senate Report recounted what it regarded as the relevant facts of the case:

The evidence showed that the ghetto area voted Democratic, that the Republicans won four of the five elections from 1960 to 1968, and that in 1964, when the Democrats won, ghetto area senators and representatives were elected. Nine blacks had in fact been elected to the legislature from the at-large districts between [1960] and 1968.

Id. at 20-21, reprinted in 1982 U.S.Code Cong. & Admin.News at 198. The facts cited by the Senate mirror those previously identified by Justice Marshall in Bolden and stressed here: Plaintiffs were unsuccessful in years in which their party suffered electoral defeat; they were able to elect representatives of their choice when their party prevailed. Not surprisingly, the Senate adopted Whitcomb's central teaching in presenting what it understood to be the kernel of the decision:The failure of the ghetto to have legislative seats in proportion to its population emerges more as a function of losing elections than of built-in bias against poor Negroes. The voting power of ghetto residents may have been "cancelled out," as the district court held, but this seems a mere euphemism for political defeat at the polls.

Id. at 21 (quoting Whitcomb, 403 U.S. at 153, 91 S.Ct. at 1874), reprinted in 1982 U.S.Code Cong. & Admin.News at 198.

In keeping with Whitcomb's sharp distinction between "built-in bias" and "political defeat at the polls," the Senate Report indicated that a proper application of the results test requires courts to "distinguish[ ] between situations in which racial politics play an excessive role in the electoral process, and communities in which they do not." Id. at 33, reprinted in 1982 U.S.Code Cong. & Admin.News at 211. The Senate Report, again following Whitcomb, accorded this inquiry into "racial bloc voting," that is, whether " 'race is the predominant determinant of political preference,' " dispositive significance: Absent a showing of "racial bloc voting," the Senate Report asserted, "it would be exceedingly difficult for plaintiffs to show that they were effectively excluded from fair access to the political process under the results test." Id. (quoting S.Rep. 417 at 148 (Report of the Subcommittee on the Constitution), reprinted in 1982 U.S.Code Cong. & Admin.News at 321). Since the results test itself, contrary to critics' charges, "makes no assumptions one way or the other about the role of racial political considerations in a particular community," id. at 34, reprinted in 1982 U.S.Code Cong. & Admin.News at 212, the Senate Report emphasized that plaintiffs must supply affirmative proof of "racial bloc voting." The "mere existence of underrepresentation plus a history of dual schools" plainly does not suffice to make out a violation of § 2. Id.

It is difficult to see how the record in this case could possibly support a finding of liability under the approach outlined in the Senate Report. Plaintiffs have not even attempted to establish proof of racial bloc voting by demonstrating that "race," not, as defendants contend, partisan affiliation, "is the predominant determinant of political preference." They have instead maintained, in the very teeth of the Senate Report, that such a showing is unnecessary. Because the district court accepted this argument, the test employed at trial enabled plaintiffs to prevail by proving little more than a lack of success at the polls and a history of discrimination. While this standard finds clear support in Justice Brennan's plurality opinion in Thornburg v. Gingles, 478 U.S. 30, 106 S.Ct. 2752, 92 L.Ed.2d 25 (1986), it "simply was not the approach used by the courts under the White/ Zimmer test" and codified by Congress. S.Rep. 417 at 34, reprinted in 1982 U.S.Code Cong. & Admin.News at 212.

Justice Brennan's discussion of the first and second Gingles factors received majority support. Gingles, 478 U.S. at 50-51, 56, 106 S.Ct. at 2766, 2769.25 With respect to the third element, however, five justices rejected Justice Brennan's proposed standard for proving racial bloc voting. Id. at 83, 106 S.Ct. at 2782 (White, J., concurring); id. at 100-01, 106 S.Ct. at 2792 (O'Connor, J., joined by Burger, C.J., Powell and Rehnquist, JJ., concurring). For this reason, we believe that it is to these opinions, not Justice Brennan's, that we should look in attempting to define the contours of the inquiry into legally significant bloc voting.

Despite the presence of express language to the contrary in the Senate Report, see S.Rep. 417 at 33 ("racial bloc voting" is established when "race is the predominant determinant of political preference"), reprinted in 1982 U.S.Code Cong. & Admin.News at 211, Justice Brennan held that racial bloc voting or "racially polarized voting" did not describe divergent "voting patterns for which the principal cause is race." Gingles, 478 U.S. at 61, 106 S.Ct. at 2772. Instead, he asserted that "[i]t is the difference between the choices made by blacks and whites--not the reasons for that difference--that [matters]." Id. A consideration of "irrelevant variables" such as partisan affiliation or the race of the candidate, Justice Brennan urged, would "distort[ ] the equation and yield[ ] results that are indisputably incorrect under § 2 and the Senate Report." Id. at 64, 106 S.Ct. at 2773.

Justice Brennan's assertion that racial political considerations had no role in examining racial bloc voting was squarely rejected by five Justices in Gingles. 478 U.S. at 83, 106 S.Ct. at 2782 (White, J., concurring); id. at 100-01, 106 S.Ct. at 2792 (O'Connor, J., joined by Burger, C.J., Powell and Rehnquist, JJ., concurring). Justice White argued that

Justice Brennan states in Part III-C that the crucial factor in identifying polarized voting is the race of the voter and that the race of the candidate is irrelevant. Under this test, there is polarized voting if the majority of white voters vote for different candidates than the majority of the blacks, regardless of the race of the candidates. I do not agree. Suppose an eight-member multimember district that is 60% white and 40% black, the blacks being geographically located so that two safe black single-member districts could be drawn. Suppose further that there are six white and two black Democrats running against six white and two black Republicans. Under Justice Brennan's test, there would be polarized voting and a likely § 2 violation if all the Republicans, including the two blacks, are elected, and 80% of the blacks in the predominately black areas vote Democratic.... This is interest-group politics rather than a rule hedging against racial discrimination. I doubt that this is what Congress had in mind in amending § 2 as it did, and it seems quite at odds with the discussion in Whitcomb v. Chavis, 403 U.S. 124, 149-160 [91 S.Ct. 1858, 1872-78, 29 L.Ed.2d 363] (1971).

Id. 478 U.S. at 83, 106 S.Ct. at 2782 (White, J., concurring) (emphasis added). Justice O'Connor joined Justice White in maintaining that evidence that white and minority voters generally supported different candidates did not constitute legally significant racial bloc voting where these patterns were attributable to partisan affiliation rather than the race of the candidate. She therefore rejected Justice Brennan's position that

evidence that the divergent racial voting patterns may be explained in part by causes other than race, such as an underlying divergence in the interests of minority and white voters.... can never affect the overall vote dilution inquiry. Evidence that a candidate preferred by the minority group in a particular election was rejected by white voters for reasons other than those which made that candidate the preferred choice of the minority group would seem clearly relevant in answering the question whether bloc voting by white voters will consistently defeat minority candidates. Such evidence would suggest that another candidate, equally preferred by the minority group, might be able to attract greater white support in future elections.

I believe Congress also intended that explanations of the reasons why white voters rejected minority candidates would be probative of the likelihood that candidates elected without decisive minority support would be willing to take the minority's interests into account. In a community that is polarized along racial lines, racial hostility may bar these and other indirect avenues of political influence to a much greater extent than in a community where racial animosity is absent although the interests of racial groups diverge. Indeed, the Senate Report clearly stated that one factor that could have probative value in § 2 cases was "whether there is a significant lack of responsiveness on the part of elected officials to the particularized needs of the members of the minority group." S.Rep., at 29. The overall vote dilution inquiry neither requires nor permits an arbitrary rule against consideration of all evidence concerning voting preferences other than statistical evidence of racial voting patterns. Such a rule would give no effect whatever to the Senate Report's repeated emphasis on "intensive racial politics," on "racial political considerations," and on whether "racial politics ... dominate the electoral process" as one aspect of the "racial bloc voting" that Congress deemed relevant to showing a § 2 violation. Id., at 33-34. Similarly, I agree with Justice White that Justice Brennan's conclusion that the race of the candidate is always irrelevant in identifying racially polarized voting conflicts with Whitcomb and is not necessary to the disposition of this case. Ante [478 U.S. at 83-84, 106 S.Ct.] at 2783 (concurring).

Id. at 100-01, 106 S.Ct. at 2792 (O'Connor, J., concurring) (emphasis added).

As courts and commentators alike have noted, Justice White and Justice O'Connor were united in their fidelity to Whitcomb's distinction between vote dilution and partisan politics and in their opposition to Justice Brennan's attempt to expunge this teaching from the bloc voting inquiry. See, e.g., Baird v. Consolidated City of Indianapolis, 976 F.2d 357, 361 (7th Cir.1992) ("Justice White ... observ[ed] that system leading to the election of black Republicans could not be dismissed as discriminatory. To disregard the race of the victors, Justice White concluded, 'is interest-group politics rather than a rule hedging against racial discrimination.' Justice O'Connor agreed") (citation omitted); Note, Voting Rights Act Section 2: Racially Polarized Voting and the Minority Community's Representative of Choice, 89 Mich.L.Rev. 1038, 1044 (1991); Note, Defining the Minority Preferred Candidate Under Section 2, 99 Yale L.J. 1651, 1662-63 (1990). The division in Gingles between the Brennan plurality and the five Justices who supported the White/O'Connor approach cuts deep, reflecting quite different visions of voting rights and their statutory treatment. Since these five Justices expressly rejected a test that would permit § 2 liability to attach upon a showing that white and black citizens generally gave their votes to different candidates in favor of an inquiry into the possible explanations of these divergent voting patterns, we believe that it is this view, not Justice Brennan's, that commands our allegiance. The district court's failure to accord similar weight to this approach was not justified.

All members of the Court in Gingles agreed that only "legally significant" racial bloc voting is cognizable under § 2. They disagreed sharply, however, on the sort of proof that would implicate this provision. Justice Brennan held that a "minority must be able to demonstrate that the white majority votes sufficiently as a bloc to enable it ... usually to defeat the minority's preferred candidate." Gingles, 478 U.S. at 51, 106 S.Ct. at 2766-67. Justice O'Connor, on the other hand, argued that such a showing did not warrant judicial intervention: "[A] reviewing court should be required to find more than simply that the minority group does not usually attain an undiluted measure of electoral success." Id. at 99, 106 S.Ct. at 2791 (O'Connor, J., concurring). Instead, she would require a court to "find that even substantial minority success will be highly infrequent under the challenged plan before it may conclude, on this basis alone, that the plan operates to 'cancel out or minimize the voting strength of [the] racial grou[p].' " Id. at 99-100, 106 S.Ct. at 2792 (quoting White, 412 U.S. at 765, 93 S.Ct. at 2339) (alterations in original).

Justice O'Connor's admonition that federal courts should stay their hand absent proof that "even substantial minority success will be highly infrequent" receives formal expression in her insistence that the racial bloc voting inquiry must include an examination of the causes underlying divergent voting patterns. Both Justice Brennan and Justice O'Connor recognized that racial bloc voting is intimately related to the responsiveness of elected officials to the interests of minorities, one of the factors considered as part of the "totality of circumstances." As Justice Brennan indicated, "[n]ot only does '[v]oting along racial lines' deprive minority voters of their preferred representatives in these circumstances, it also 'allows those elected to ignore [minority] interests without fear of political consequences.' " Id. 478 U.S. at 48 n. 14, 106 S.Ct. at 3106 n. 14 (quoting Rogers v. Lodge, 458 U.S. 613, 623, 102 S.Ct. 3272, 3278, 73 L.Ed.2d 1012 (1982) (alterations in original)). The close tie between bloc voting and representatives' responsiveness noted by the Court in Rogers and confirmed by Justice Brennan rests on common sense: Public officials need not address concerns expressed by minorities so long as white bloc voting ensures that they will remain minority concerns. The Court in Rogers and Justice Brennan, however, differed sharply over the sort of polarized voting that might provide elected officials with such assurances and federal courts with grounds to intervene. The Court in Rogers held that this close identification was warranted only where racial political considerations were present, that is, where white bloc voting caused "minority candidates [to] lose elections solely because of their race." Rogers, 458 U.S. at 623, 102 S.Ct. at 3279 (emphasis added). Justice Brennan's approach, by contrast, assumes that political leaders may safely ignore minority concerns even where black and white voters are separated only by differing interests. Put another way, Justice Brennan's bloc voting test accords governing majorities linked only by the perception of common interests the same permanence and thus relevance under § 2 as white blocs cemented by racial prejudice.

Justice O'Connor not only rejected Justice Brennan's polarized voting standard but was also unwilling to join in the questionable assumption that minorities are unable to influence elections and secure the attention of public officials where these groups have been unsuccessful in their efforts to elect their preferred representatives. Gingles, 478 U.S. at 100-101, 106 S.Ct. at 2792 (O'Connor, J., concurring). Unlike Justice Brennan, she argued that "Congress also intended that explanations of the reasons why white voters rejected minority candidates would be probative of the likelihood that candidates elected without decisive minority support would be willing to take the minority's interests into account." Id. at 100, 106 S.Ct. at 2792 (O'Connor, J., concurring). Following Rogers, Justice O'Connor believed that a minority group's prospects for future electoral success and the likelihood that elected officials will take account of their interests differ materially "in a community where racial animosity is absent although the interests of racial groups diverge." Id. (O'Connor, J., concurring). A tendency among whites to cast their votes on the basis of race presents a far more durable obstacle to the coalition-building upon which minority electoral success depends than disagreements over ideology for, as Professor Ely observes, "prejudice blinds us to overlapping interests that in fact exist." John Hart Ely, Democracy and Distrust 153 (1980). Representatives who owe their office to the support of majorities bound by prejudice need not attend to the interests of minorities, since the bias uniting their constituents ensures that these issues will remain minority concerns. Where, on the other hand, voting patterns correlate with partisan affiliation or perceived interest, the open channels of communication facilitate a recognition of points of common ground that might otherwise go undetected. Elected officials in these communities cannot ignore minority interests because this group might be part of the winning coalition that votes them out of office. The deep division bet