(1974 & Supp. V 1975) (hereinafter "section 5"); 28 U.S.C. § 2284 (1976).
3. All the requirements for a Rules 23(a) and 23(b)(2) defendant class action on behalf of the intervenors are met. The defendant class is defined as all black citizens and black registered voters in Mississippi qualified to vote in state legislative elections. Fed.R.Civ.P. 23(a) & 23(b)(2).
4. The Voting Rights Act of 1965, 42 U.S.C. § 1973 et seq. (1974), was enacted to insure the protection of rights guaranteed by the Fifteenth Amendment and "to rid the country of racial discrimination in voting." South Carolina v. Katzenbach, 383 U.S. 301, 315, 86 S. Ct. 803, 812, 15 L. Ed. 2d 769 (1966).
5. Section 5 of the Voting Rights Act was intended to insure that the gains thus far achieved in minority political participation would not be emasculated or destroyed through new discriminatory procedures and techniques. S.Rep. No. 94-295, at 19, U.S.Code Cong. & Admin.News 1975, p. 774.
6. The State of Mississippi is a state subject to the preclearance requirements of section 5. 30 Fed.Reg. 9897 (August 7, 1965).
7. Under section 5, Mississippi may not enforce or implement any change in "any voting qualification or prerequisite to voting, or standard, practice or procedure with respect to voting" unless such change has either been approved by the Attorney General, or unless Mississippi obtains a declaratory judgment in the United States District Court for the District of Columbia that such change "does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color." 42 U.S.C. § 1973c (1974 & Supp. V 1975).
8. The reapportionment plan adopted by the Mississippi Legislature in 1978 regular session, approved by the Governor on April 12, 1978, and the changes resulting therefrom are within the scope of Section 5 of the Voting Rights Act, 42 U.S.C. § 1973c (1974 & Supp. V 1975); Georgia v. United States, 411 U.S. 526, 531-35, 93 S. Ct. 1702, 1706-1708, 36 L. Ed. 2d 472 (1973); Beer v. United States, 425 U.S. 130, 138, 96 S. Ct. 1357, 1362, 47 L. Ed. 2d 629 (1976).
9. In an action for declaratory judgment under section 5, the burden of proof is on the plaintiff. Georgia v. United States, 411 U.S. 526, 538, 93 S. Ct. 1702, 1709, 36 L. Ed. 2d 472 (1973); South Carolina v. Katzenbach, 383 U.S. 301, 328, 86 S. Ct. 803, 818, 15 L. Ed. 2d 769 (1966).
10. Plaintiff's burden in a suit for declaratory relief under section 5 is to demonstrate that the reapportionment plan described in S.B. 3098 and H.B. 1491 do not lead to a retrogression in the position of racial minorities, or that the proposed change fairly reflects the strength of black voting power as it exists. Beer v. United States, 425 U.S. 130, 139 n. 11, 141, 96 S. Ct. 1357, 1363, 47 L. Ed. 2d 629 (1976); Richmond v. United States, 422 U.S. 358, 362, 95 S. Ct. 2296, 2299, 45 L. Ed. 2d 245 (1975).
11. Mississippi, in meeting its burden of proof, must demonstrate that a racially discriminatory purpose was not among the factors that motivated it in devising its reapportionment plan. Richmond v. United States, 422 U.S. 358, 362, 95 S. Ct. 2296, 2299, 45 L. Ed. 2d 245 (1975).
12. A discriminatory purpose need not be express, but may be inferred from the totality of the relevant facts. Washington v. Davis, 426 U.S. 229, 241, 96 S. Ct. 2040, 2048, 48 L. Ed. 2d 597 (1976).
13. Black voting strength is impermissibly diluted when, designedly or otherwise, an apportionment scheme under the circumstances of a particular case would operate to minimize or cancel out the voting strength of racial elements of the voting population. Burns v. Richardson, 384 U.S. 73, 88, 86 S. Ct. 1286, 1294, 16 L. Ed. 2d 376 (1966); Fortson v. Dorsey, 379 U.S. 433, 439, 85 S. Ct. 498, 501, 13 L. Ed. 2d 401 (1965).
14. In a single-member districting plan, black voting strength may be unconstitutionally and impermissibly diluted, minimized, and cancelled out (1) when heavy black population concentrations are unnecessarily fragmented and dispersed, and (2) when black population concentrations to deny black voters the opportunity to elect candidates of their choice. Connor v. Finch, 431 U.S. 407, 421-25, 97 S. Ct. 1828, 1837-1839, 52 L. Ed. 2d 465 (1977); Kirksey v. Board of Supervisors of Hinds County, Mississippi, 554 F.2d 139, 149 (5th Cir.) (en banc), cert. denied, 434 U.S. 968, 98 S. Ct. 512, 54 L. Ed. 2d 454 (1977); Robinson v. Commissioners Court, Anderson County, Texas, 505 F.2d 674, 679 (5th Cir. 1974); Moore v. Leflore County Board of Election Commissioners, 502 F.2d 621, 622-24 (5th Cir. 1974); Sims v. Baggett, 247 F. Supp. 96, 109 (M.D.Ala.1965) (three-judge court).
15. No state or political subdivision is required to search for ways to maximize the number of black voting age population districts. Likewise, no racial group has a constitutional or statutory right to an apportionment structure designed to maximize its political strength. Richmond v. United States, 422 U.S. 358, 370-72, 95 S. Ct. 2296, 2303-2304, 45 L. Ed. 2d 245 (1975); Gilbert v. Sterrett, 509 F.2d 1389, 1394 (5th Cir. 1975); Cousins v. City Council of City of Chicago, 503 F.2d 912, 920 (7th Cir. 1974); Turner v. McKeithen, 490 F.2d 191, 197 (5th Cir. 1973); Howard v. Adams County Board of Supervisors, 453 F.2d 455, 458 (5th Cir. 1972).
16. A legislative reapportionment plan that enhances the position of racial minorities with respect to their effective exercise of the electoral franchise cannot have "the effect" of diluting or abridging the right to vote on account of race within the meaning of section 5 unless the new apportionment itself so discriminates as to violate the Constitution. Beer v. United States, 425 U.S. 130, 141, 96 S. Ct. 1357, 1363, 47 L. Ed. 2d 629 (1976).
17. Although reapportionment plans, which are formulated with less concern for statistical accuracy and the one-person-one-vote concept, may provide a greater number of black majority districts, departure from equal protection one-person-one-vote strictures cannot be required or justified simply as an affirmative act to maximize black voting strength. See Regents v. Bakke, 438 U.S. 265, 98 S. Ct. 2733, 2751, 57 L. Ed. 2d 750 (1978); Mahan v. Howell, 410 U.S. 315, 328-30, 93 S. Ct. 979, 986-987, 35 L. Ed. 2d 320 (1973); White v. Weiser, 412 U.S. 783, 790-93, 93 S. Ct. 2348, 2352-2353, 37 L. Ed. 2d 335 (1973.)
18. Beer commands comparison with a preexisting plan to determine "whether the ability of minority groups to participate in the political process and to elect their choices to office is augmented, diminished, or not affected by the change affecting voting . . ." Beer v. United States, 425 U.S. 130, 141, 96 S. Ct. 1357, 1363, 47 L. Ed. 2d 629 (1976).
19. The settlement plan, adopted by the Connor Court on April 13, 1979, must now be considered the preexisting plan and the benchmark with which to compare the statutory plan.
20. When compared with the Connor Settlement Plan, and taking into account the totality of criteria governing the formulation of the statutory plan and its alternatives, we conclude that the slight differences are not of such significance to find that the statutory plan is retrogressive with respect to black voting strength in Mississippi as it exists today. The proof in this case demonstrates that H.B. 1491 and S.B. 3098 would not lead to a retrogression in the current position of racial minorities with respect to their effective exercise of the electoral franchise and therefore do not have the "effect of denying or abridging the right to vote on account of race or color." This conclusion to disregard insignificant differences is further supported by the fact that legislative reapportionment is the preferred vehicle for reapportionment, as is reflected by the broader tolerances which are allowed to legislatures, but not to courts, in the matter of deviations from uniform population requirements. As the Supreme Court recently stated, "The Court has repeatedly held that redistricting and reapportioning legislative bodies is a legislative task which the federal Courts should make every effort not to pre-empt." Wise v. Lipscomb, 437 U.S. 535, 539, 98 S. Ct. 2493, 2497, 57 L. Ed. 2d 411 (1978).
21. Legislative reapportionment plans must be scrutinized to determine if they were enacted with the prohibited "purpose" of denying or abridging black voting strength. The prohibited "purpose" of section 5 may be described as the sort of invidious discriminatory purpose that would support a challenge to official action as an unconstitutional denial of equal protection. A law neutral on its face and serving legitimate state ends cannot be held invalid under the Equal Protection Clause without proof of discriminatory purpose. Accordingly, in examining the statutory plan, proof of discriminatory racial purpose is necessary for a finding of the "purpose" proscribed in section 5. Washington v. Davis, 426 U.S. 229, 239-48, 96 S. Ct. 2040, 2047-2051, 48 L. Ed. 2d 597 (1976).
22. Mississippi's evidence demonstrates that the principal actors in the development of S.B. 3098 and H.B. 1491 acted with a benign purpose.
Defendants concede they have no evidence to the contrary and are unable to name anyone they contend acted with improper purpose. Defendant-intervenors, likewise, have failed to introduce such evidence.
23. Defendants and defendant-intervenors have suggested that incumbency concerns in the fashioning of the legislature's plans resulted in an impermissibly racially-discriminatory purpose. It is not improper, however, for a legislative body to consider incumbency in fashioning a reapportionment plan, nor does it demonstrate invidiousness, especially here where the evidence shows incumbency concerns were not permitted to encroach upon configurations designed to recognize and protect black voting strength. White v. Weiser, 412 U.S. 783, 797, 93 S. Ct. 2348, 2355, 37 L. Ed. 2d 335 (1973); Burns v. Richardson, 384 U.S. 73, 89 n. 16, 86 S. Ct. 1286, 1295, 16 L. Ed. 2d 376 (1966).
24. The implementation of S.B. 3098 and H.B. 1491 for the 1979 quadrennial legislative elections in the State of Mississippi will not have either the purpose or effect of denying or abridging the full and free exercise of the right to vote of black citizens in that state.
25. Plaintiff's prayer for a declaratory judgment preclearing S.B. 3098 and H.B. 1491 as a valid reapportionment plan for use in the 1979 quadrennial election should be granted.
26. Since the statutory plan is upheld, it shall supersede the Connor Court plan of April 13, 1979. Per curiam opinion of the United States Supreme Court in Connor v. Coleman, 440 U.S. 612, 99 S. Ct. 1523, 59 L. Ed. 2d 619 (1979).