In addition to the above, plaintiffs appear to argue that a combination of allegations, namely “when the Alabama Legislature establishes a legislative plan that splits ‘numerous counties' and ‘contains population variances of up to plus/minus five percent’,” obviates their burden of proof as set forth above and establishes a
per se constitutional violation. The case relied upon by the plaintiffs,
Burton v. Hobbie, 543 F.Supp. 235, 241–43 (M.D.Ala.1982)(J. JOHNSON, concurring), does not stand for such a proposition. In point of fact, the Court in
Burton was forced by time constraints to choose an interim plan from a number of plans, including the plan adopted by the Alabama Legislature to which numerous objections related to racial gerrymandering and large retrogressions in black voting strength
had been raised by the Department of Justice, and discussed the splitting of county lines in that comparative context alone.
See, Burton, 543 F.Supp. at 243–48 (J. THOMPSON, dissenting). Thus, unlike the case at bar, improper racial motivation was established to the necessary degree to obfuscate the presumption that the apportionment plan enacted by the Legislature was the result of an “honest and good faith effort to construct districts ... as nearly of equal population as is practicable.”
Reynolds, 377 U.S. at 577, 84 S.Ct. at 1390. Judge Johnson did not even suggest there is a
per se constitutional limitation on the number of counties the Legislature may split but, instead, merely concluded under the facts of that case that “the utter disregard of county boundaries obviously makes more credible plaintiffs' claims that the legislature engaged in racial gerrymandering.”
Burton, 543 F.Supp. at 241.