¶1dissenting:
¶2At the outset, I cheerfully admit that my colleagues may well be right about what is the correct result in this case. In such circumstances, I (despite my disagreement) *1394usually write nothing in dissent. But, given the exceptional importance of this case to the people of Georgia and to the law of the United States, I feel obliged to explain briefly and generally my view.
¶3Reapportionment of a state’s congressional districts is fundamentally the domain of the states rather than the federal courts. Growe v. Emison, — U.S. -, -, 113 S.Ct. 1075, 1080, 122 L.Ed.2d 388 (1993); Connor v. Finch, 431 U.S. 407, 413-14, 97 S.Ct. 1828, 1833, 52 L.Ed.2d 465 (1977); Reynolds v. Sims, 377 U.S. 533, 585-87, 84 S.Ct. 1362, 1394, 12 L.Ed.2d 506 (1964). The Constitution leaves the responsibility for apportioning congressional districts with the states. Id; Voinovich v. Quiltner, — U.S. -, -, 113 S.Ct. 1149, 1157, 122 L.Ed.2d 500 (1993). And, state political considerations pervade the apportionment process making it a “highly complex and multifaceted ... political thicket.” Reynolds, 377 U.S. at 568-69, 84 S.Ct. at 1385. For example, considerations of incumbency, local politics, and the balance of power between Democrats and Republicans in the state legislature, as well as innumerable other considerations (such as, the simple exchange of votes by legislators to advance each other’s goals), control the placement of a state’s congressional districts. All legislative action is a product of debate, compromise, and political decisions. The evidence—such as the Lieutenant Governor’s testimony—in this case shows that apportionment legislation takes this process to an especially intense level.
¶4Largely because of the uniquely political, sensitive, and complex nature of apportionment, a federal court hearing a challenge to a state’s apportionment plan must give federalism concerns especially significant consideration. The Supreme Court has repeatedly stressed that “[fjederal courts are barred from intervening in state apportionment in the absence of a violation of federal law precisely because it is the domain of the states, and not the federal courts, to conduct apportionment in the first place.” Voinovich, — U.S. at -, 113 S.Ct. at 1157. Federal courts are bound to respect a state’s apportionment decisions unless the choices have clearly violated constitutional or federal law requirements. Id.
¶5With these federalism concerns in mind, I look at Shaw v. Reno, — U.S. -, 113 S.Ct. 2816, 125 L.Ed.2d 511 (1993), the precedent that allows, but also limits in important ways, federal judicial action in apportionment cases. Because Congressional apportionment has always been seen as a state matter, only two circumstances historically would allow a federal court to use the Equal Protection Clause as' a basis to intervene in the apportionment process: (1) the state’s apportionment plan violated one-person, one-vote principles by creating districts with substantially unequal populations, Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964); (2) the state’s apportionment plan had the purpose and effect of diluting the voting strength of a minority or other identified group of voters, Wright v. Rockefeller, 376 U.S. 52, 84 S.Ct. 603, 11 L.Ed.2d 512 (1964). Neither of these circumstances is present in- this case.
¶6*1395Therefore, if we are to interfere with Georgia’s Congressional plan, from where does our authority come? Shawpoints to the possible source. Shawheld that a congressional district that is “so highly irregular on its face that it can be viewed only as an effort to segregate the races for purposes of voting” may be examined by federal courts and, then, be struck down unless the district can survive “strict scrutiny” under the Equal Protection Clause. Shaw, — U.S. at-, 113 S.Ct. at 2828. Highly irregular shape— the appearance of the district—is the critical element of this new cause of action under the Equal Protection Clause. This element strongly limits the power of federal courts to become entangled in state apportionment matters.
¶7Plaintiffs in this case want us not just to follow Shaw, but to extend Shawto make federal court intrusion in apportionment cases easier and more likely. But, there are important differences between following a precedent and extending it. Because extension of Shawas plaintiffs advocate would diminish in important ways the traditional freedom of states to apportion themselves for Congressional purposes without federal judicial supervision, I decline to take that step without plain instruction from the nation’s highest court.
¶8Plaintiffs argue that the fundamental inquiry is whether the district has been set up on racial grounds. The burden, they admit, is on them to show that legislators intentionally drew lines to segregate voters according to race. Plaintiffs claim, however, that any evidence probative of the state’s decision-making process may be used to prove legislative intent. Under this more active approach, the district’s appearance is of little importance; shape is merely one piece of circumstantial evidence proving the legislature’s intentional use of race. Other evidence, especially direct testimony from legislators about their motivations, could be used by plaintiffs to prove intent.
¶9In turning to the facts of this case, we must ask first whether the plaintiffs have carried their burden of showing that the Eleventh District is so “bizarre” or “highly irregular” in shape that it can only be explained by race. In determining whether a district is bizarre, the court may consider many factors, including the district’s size, outline, allegiance to traditional districting principles such as compactness and respect for political sub-divisions, and how it appears in comparison to other districts in the State’s plan, earlier plans, or even districts from other states. Based on objective criteria, I cannot find and cannot conclude that plaintiffs have prpved the Eleventh District is bizarre or highly irregular within the meaning of Shaw.
¶101. The size of the district is not particularly noteworthy. Georgia’s Districts One, Two, and Eight each have a total area of over 10,100 square miles. In contrast, the Eleventh District has an area of 6,780 square miles.
¶112. The district’s 1,184 miles of borders is not distinctive when compared to the Second (1243 miles) or the Eighth (1155 miles) Districts.
¶123. Plaintiffs claim that the district is bizarre because it comes within 58 miles of crossing the entire State. But, the Ninth District spans the entire northern border of the State and the First, Second, and Eighth Districts begin at the Florida border and stretch north to almost the middle of the State.
¶134. The Eleventh District shows considerable respect for existing political boundaries. That seventy-one percent of the district’s boundaries follow existing state, county, and city borders is- significant. This places the Eleventh at the average for the State’s ten other congressional districts.
¶145. In addition, eighty-three percent of the Eleventh’s area comes from whole counties. In comparison, the average among the State’s other districts is sixty-two and one-half percent.
¶156. Georgia’s congressional districts have no tradition of being neat, geometric shapes. And, areas of the Second and Eighth Districts in Bibb and Houston Counties look—as irregular or—much more irregular. The same may be said of the Third District in Crawford County. To be sure, the Eleventh makes curious turns in some areas, particularly the areas around Atlanta, Savannah, and Augusta. But, in these areas most of the lines follow existing city boundaries or major highways and roads. The Eleventh District makes use of what some have called “landbridges” to connect populations to the district, but it is not unique in that respect: for example, see the current Seventh District’s inclusion of Marietta and the 1970’s Seventh District’s inclusion of an area in or around Dalton.
¶16*13977. That the Eleventh District splits eight counties is unremarkable. The Sixth District has no whole counties but parts of five counties. And, the Fourth District has one whole county and parts of two others. Splitting counties in Georgia’s congressional districts for reasons wholly unrelated to race is part of Georgia’s history: for example, Whitfield in 1970 and Gwinnett in 1980.
¶178. Qualitative measurements for compactness, such as perimeter and dispersion measurements, show the Eleventh District is not bizarre or highly irregular. One measurement, called dispersion scoring, compares the area of the district to the area of the smallest circle that would enclose the district. And, perimeter scoring compares the area of the district to the area of a circle with the same perimeter. While I express no view as to the reliability of these measurements, political scientists, according to plaintiffs’ experts, use the measurements to evaluate a district’s compactness.
¶18According to perimeter scoring, the Eleventh is more compact than approximately forty-six other congressional districts in the country. Under dispersion measurements, the Eleventh is more compact than about twenty-nine other districts. And, under these measurements, the Eleventh is more compact than the North Carolina District challenged in Shaw, the Texas and Louisiana Districts recently held unconstitutional in the Fifth Circuit, and the Florida District under challenge in the Eleventh Circuit. Again, these measurements, by themselves, are not outcome determinative; nonetheless, they confirm the view that Georgia’s Eleventh District is not highly irregular.
¶19In concluding, I will not be coy: no party in this case disputes that race was an important consideration in the drawing of the Eleventh District. But, as I understand the law as explained by the Supreme Court, the Constitution does not condemn all race-conscious districting. For Shaw, appearance is the first and the main issue. Highly irregular appearance must be shown, or federal judges have no right to look further or to inquire more.
¶20Federal courts must be on guard against the temptation to venture into the realm of political science. And not every district that some expert or some federal judge could draw “better,” that is, more regularly or more compactly, is “highly irregular” within the meaning of Shaw. Whatever I may personally think about the wisdom of the Eleventh’s boundaries or of the policy choices that led to them, the Eleventh District is not so bizarre on its face to justify, pursuant to the Constitution, a more searching inquiry. Thus, plaintiffs have failed to prove a valid Shaw claim. In the absence of such a showing, this court—as I understand the law— cannot rightly interfere with the reapportionment plan that resulted from Georgia’s political process.
¶21I would render a judgment for defendants.
¶23. Plaintiffs in this case attempt to minimize federalism concerns by suggesting that the federal government, acting through the Department of Justice, forced the State of Georgia, that is, the State’s elected leaders, to enact the present congressional districting plan. Because Georgia is subject to the preclearance requirements of section 5 of the Voting Rights Act, the Department of Justice does play a role in the enactment of any State plan. The State, however, always has the option of seeking relief in federal court from the Department’s objections. State leaders bear the responsibility for weighing the advantages and disadvantages of litigation as part of their responsibility for reapportionment generally. But, that the courts are open to Georgia undercuts substantially the idea that the Department of Justice can, in fact, dictate to Georgia. (I note, by the way, that Georgia’s Senate had included parts of Savannah—the most controversial element of the Eleventh District—in the Eleventh District before the Department of Justice mentioned such a thing.) In addition, no plan may be enacted unless it is first adopted by Georgia's legislature. The Department's objection to the State’s first two plans affected Georgia's ultimate plan. But in the end, the plan before us represents the judgment of Georgia's elected leaders (the main guardians of the public interest for Georgia) on congressional apportionment. And, as the Supreme Court has stated, the State's judgment demands the respect of the federal courts.
¶24. During the trial, several State legislators testified about why the Eleventh looks like it does. I accept that each of these men spoke the truth as they know it. But, the main truth (with which I think all agreed) is that, in a democracy, apportionment is a highly political process. Many different agendas may be at work. So, no one person can truly say why other legislators decided to vote this way or that way. I cannot give much weight to post-enactment statements of individual legislators about the subjective motives of the State house, State senate and governor when the apportionment plan was enacted. See generally Edwards v. Aguillard, 482 U.S. 578, 595-96 n. 19, 107 S.Ct. 2573, 2584 n. 19, 96 L.Ed.2d 510 (1987) (finding post-enactment statements "to be of little relevance in determining the intent of the legislature”); Blanchette v. Connecticut General Insurance Corp., 419 U.S. 102, 132-33, 95 S.Ct. 335, 353, 42 L.Ed.2d 320 (1974) (holding that statements by individual legislators "represent only the personal views of those legislators” and not the intent of the legislature); National Woodwork Mfrs. Ass'n. v. N.L.R.B., 386 U.S. 612, 639 n. 34, 87 S.Ct. 1250, 1265 n. 34, 18 L.Ed.2d 357 (1967) (holding that statements made by legislators after a bill was passed "could represent only the personal views of those legislators”).
¶25Shaw's highly-irregular-appearance standard is an objective standard, and it, among other things, avoids the unreliability of after-the-fact statements by legislators and also avoids the necessity of federal judges probing and intruding on state officers’ thoughts (perhaps expressly crediting some state officers and not crediting others—a divisive event) to “learn” the state’s true intent.
¶26. No fewer than six times the ShawCourt repeats that a district may be challenged on the grounds that it is "bizarre,” "highly irregular” or “irrational on its face.” Id.at-,-, -, -,-, 113 S.Ct. at 2824, 2825, 2826, 2829, 2832. That the Court presented the issue in this manner cannot be ignored. To hold that the proper inquiry is simply whether race was a "substantial factor" ignores the plain language of the opinion. Instead, to follow Shaw, a court must ask whether the district is so bizarre on its face that only racial considerations could account for its shape.
¶27And, I consider the Court's discussion of United Jewish Organizations of Williamsburg, Inc. v. Carey, 430 U.S. 144, 97 S.Ct. 996, 51 L.Ed.2d 229 (1977) (UJO), enlightening. In UJO, the Court upheld a state's districting scheme despite evidence that the lines were drawn on the basis of race. According to Shaw, the plaintiffs in UJO failed to state a valid claim because they "did not allege that the plan, on its face, was so highly irregular that it could be understood only as an effort to segregate voters by race.” Shaw, — *1396TJ.S. at-, 113 S.Ct. at 2829. Again, appearances count a lot: Is the district highly irregular in its shape?
¶28. About population, I do not say that population distribution within a district counts for nothing when courts look at the district's appearance for Shawpurposes, but I am unsure that the “on its face” rule includes population within the district. In any event, population density normally varies considerably across most districts, except completely urban districts. I expect that many districts (including, for example, Georgia’s Ninth District which is, by the way, mostly white) would look funny if geography were somehow distorted—parts blown-up or shrunk—to reflect population density.
¶29. In thinking about the degree of irregularity in the shape of the current Eleventh District I have also looked at some proposals for apportionment that were never adopted. Many groups submitted proposals for reapportionment on the basis of one person, one vote. One plan was (and is) known as the "Max-Black” plan or the "Max Plan”. The proposal was drawn with one idea in mind: to maximize black representation in Congress and as a corollary to boost black voting power in certain districts in Georgia. The plan shows what the Eleventh District would look like if it was wholly based on race. The Max-Black plan did influence to some degree the shape of the ultimate Eleventh District, a majority black district. But, it seems important to me that the actual Eleventh is not identical to the Max-Black *1397plan. The Eleventh, to my eye, is significantly different in shape in many ways. These differences show, as I understand it, consideration of other matters beyond race, including traditional districting factors (such as keeping political subdivisions intact) and the usual political process of compromise and trades for a variety of nonracial reasons. In the light of Shaw, the Max-Black proposal for what became the Eleventh District would likely have been bizarre in shape, but the actual Eleventh District is much more regular. See Appendix A.
¶30. One of plaintiffs' expert witnesses testified that under these measurements, as well as population compactness measurements, the Eleventh District scored above traditional cutoffs for compactness.