White v. State of Alabama , 74 F.3d 1058 ( 1996 )


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  •                  United States Court of Appeals,
    
                            Eleventh Circuit.
    
                         Nos. 94-7024, 94-7081.
    
       Hoover WHITE, for himself and on behalf of all other persons
    similarly situated; John A. Dillard, for himself and on behalf of
    all other persons similarly situated; Glenn Moody, for himself and
    on behalf of all other persons similarly situated, Plaintiffs-
    Appellees,
    
         Ralph E. Bradford, Sr., Intervenor-Plaintiff-Appellant,
    
    Christopher Boehm; John Curry;     Jack Williams;   Mark G. Montiel,
    Intervenors-Plaintiffs,
    
                                      v.
    
    The STATE OF ALABAMA; James Bennett, in his official capacity as
    Secretary of State for the State of Alabama, Defendants-Appellees.
    
       Hoover WHITE, for himself and on behalf of all other persons
    similarly situated; John A. Dillard, for himself and on behalf of
    all other persons similarly situated; Glenn Moody, for himself and
    on behalf of all other persons similarly situated, Plaintiffs-
    Appellees,
    
         Ralph E. Bradford, Sr., Christopher Boehm, Intervenors-
    Plaintiffs,
    
       Johnny Curry; Jack Williams;    Mark G. Montiel, Intervenors-
    Plaintiffs-Appellants,
    
                                      v.
    
     The STATE OF ALABAMA, James Bennett, in his official capacity as
    Secretary of State for the State of Alabama, Defendants-Appellees.
    
                             Jan. 24, 1996.
    
    Appeals from the United States District Court for the Middle
    District of Alabama.  (No. CV-94-T-094-N), Myron H. Thompson,
    District Judge.
    
    Before TJOFLAT, Chief Judge, BLACK, Circuit Judge, and GOODWIN*,
    Senior Circuit Judge.
    
         TJOFLAT, Chief Judge:
    
    
         *
          Honorable Alfred T. Goodwin, Senior U.S. Circuit Judge for
    the Ninth Circuit, sitting by designation.
               The members of Alabama's appellate courts—the Supreme Court,
    
    the Court of Criminal Appeals, and the Court of Civil Appeals1—are
    
    elected to office in at-large partisan elections. 2            In this case,
    
    Hoover White, a black voter and representative of a class of all
    
    black voters in Alabama,3 contends that this at-large election
    
    scheme dilutes the voting strength of black voters in Alabama in
    
    violation of section 2 of the Voting Rights Act because it affords
    
    black voters, on account of their race, "less opportunity [than
    
    white voters] ... to participate in the political process and to
    
    elect representatives of their choice." Voting Rights Act of 1965,
    
    Pub.L. No. 89-110, § 2(b), 79 Stat. 437, 42 U.S.C. § 1973(b)
    
    (1988).       White also contends that the challenged at-large election
    
    scheme denies Alabama's black voters the equal protection of the
    
    laws       guaranteed   them   by   the   Fourteenth   Amendment.   He   seeks
    
    injunctive relief sufficient to remedy these deficiencies in the
    
    method of electing Alabama's appellate judges.                Finally, White
    
    
           1
          The judicial power of Alabama is vested exclusively in a
    "unified judicial system" consisting of, at the appellate level,
    a Supreme Court, a Court of Criminal Appeals, and a Court of
    Civil Appeals. Ala. Const. amend. 328, § 6.01(a). The Supreme
    Court consists of "one chief justice and such number of associate
    justices as may be prescribed by law." Id. § 6.02(a). The
    courts of appeals consist of "such number of judges as may be
    provided by law." Id. §§ 6.03(a), (b).
           2
          The Alabama Constitution provides that the justices of the
    Supreme Court and the judges of the courts of appeals are
    "elected by vote of the electors within the territorial
    jurisdiction of their respective courts." Ala. Const. amend.
    328, § 6.13 (1973). Such elections are part of Alabama's
    partisan general election scheme for state office holders. See
    generally Ala.Code tit. 17 (1995).
           3
          Joining White as plaintiffs and class representatives are
    John Dillard and Glenn Moody, both of whom are black voters. We
    refer to these plaintiffs collectively as "White."
    claims that the legislature's alteration of the structure and
    
    composition of Alabama's appellate courts, in 1969 and on two
    
    subsequent occasions, has not been precleared under section 5 of
    
    the   Voting   Rights   Act.        He   seeks   an   order   declaring   the
    
    legislature's actions inoperative.         See 42 U.S.C. § 1973c (1988).4
          Shortly after White commenced this action, his attorneys and
    
    the   Attorney   General       of   Alabama      entered   into   settlement
    
    negotiations;    these negotiations led to an agreement which the
    
    
          4
          Section 5 of the Voting Rights Act requires certain states,
    including Alabama, to obtain either judicial preclearance from
    the United States District Court for the District of Columbia or
    administrative preclearance from the Attorney General of the
    United States before altering "any voting qualification or
    prerequisite to voting, or standard, practice, or procedure with
    respect to voting...." 42 U.S.C. § 1973c. Section 5 applies to
    judicial elections, Clark v. Roemer, 
    500 U.S. 646
    , 
    111 S. Ct. 2096
    , 
    114 L. Ed. 2d 691
     (1991), and thus may apply to the
    legislative enactments involved in this case.
    
               If "voting changes subject to § 5 have not been
          precleared, § 5 plaintiffs[, such as White in this case,]
          are entitled to an injunction prohibiting the State from
          implementing the changes." Id. at 652-53, 111 S.Ct. at
          2101. Such relief may not be granted by a United States
          district judge; rather, it must be granted by a three-judge
          court convened by the chief judge of the judicial circuit in
          which the case is filed and consisting of one United States
          circuit judge and two United States district judges (one of
          whom is usually the judge before whom the case was filed).
          See 42 U.S.C. § 1973c; 28 U.S.C. § 2284 (1994).
    
               As indicated in part I.B., infra, after White filed his
          complaint, a three-judge court was convened to hear his § 5
          claims. That court lacks jurisdiction, however, to
          entertain White's claims under § 2 and the Equal Protection
          Clause of the Fourteenth Amendment. Accordingly, those
          claims remain before the district court—specifically, before
          the judge to whom the case was assigned at the time of
          filing, the Honorable Myron H. Thompson.
    
               In this appeal, we are called upon to review a final
          judgment entered by Judge Thompson. References herein to
          the district court are, therefore, to Judge Thompson and not
          to the three-judge court, unless otherwise indicated.
    United States Department of Justice precleared.            The district
    
    court, over the objection of the appellants, who had intervened in
    
    the case, approved the agreement and made it part of the final
    
    judgment now before us.      White v. State of Alabama, 
    867 F. Supp. 1519
           (M.D.Ala.1994).   That   judgment,    if   implemented,   will
    
    restructure the Supreme Court of Alabama and the two courts of
    
    appeals by increasing the size of those courts and creating a
    
    selection process that will ensure that the black voters of Alabama
    
    have at least two "representatives of their choice" on each court.
    
           The appellants, a black voter and a judge on the Court of
    
    Criminal Appeals, contend that in fashioning such relief the
    
    district court exceeded its authority under section 2 of the Voting
    
    Rights Act,5 and that the court's entry of the judgment therefore
    
    constituted an abuse of discretion. We agree, and therefore vacate
    
    the district court's judgment and remand the case for further
    
    proceedings.
    
           This opinion is organized as follows.       Part I describes the
    
    history and current structure of Alabama's appellate courts and
    
    traces the history of this litigation.          Part II demonstrates how
    
    the relief provided by the court's judgment is foreclosed by
    
    section 2 of the Voting Rights Act.     Part III addresses a district
    
    court's power to increase the size of an elected governmental
    
    body—here, Alabama's three appellate courts—in an effort to remedy
    
    
           5
          Appellants also contend, among other things, that the
    relief granted by the district court is precluded by the Equal
    Protection Clause of the Fourteenth Amendment because it
    establishes a de facto, if not a de jure, racial quota system.
    Because we dispose of the case on statutory grounds, we do not
    address the constitutional argument.
    racial vote dilution. Finally, part IV addresses, and rejects, the
    
    argument advanced by White and the United States, as amicus curiae,
    
    that, notwithstanding the limitations discussed in parts II and
    
    III, the remedy provided by the district court's judgment is
    
    permissible because the judgment is a "consent decree."
    
                                           I.
    
                                           A.
    
         Prior to 1969, Alabama's appellate courts consisted of a
    
    seven-justice    Supreme       Court   and   a   three-judge     intermediate
    
    appellate court called the Court of Appeals.            The members of these
    
    courts   were   chosen   for    staggered    six-year    terms   in   at-large
    
    partisan elections. Vacancies occurring prior to the end of a term
    
    were filled by appointment by the Governor;6         these appointees then
    
    stood for election in Alabama's next general election held after
    
    the appointee had served one year in office.
    
         In 1969, the Alabama legislature added two seats to the
    
    Supreme Court.    Act No. 602, § 1, 1969 Ala.Acts 1087 (codified at
    
    Ala.Code § 12-2-1 (1995)).        The legislature also divided the Court
    
    of Appeals into the Court of Criminal Appeals and the Court of
    
    Civil Appeals, each with three judges.            Act No. 987, § 1, 1969
    
    Ala.Acts 1744.    In 1971, the legislature added two judges to the
    
    Court of Criminal Appeals, Act No. 75, § 1, 1971 Ala.Acts 4283, and
    
    in 1993, it added two seats to the Court of Civil Appeals, Act No.
    
    93-346, §§ 1, 4, 1993 Ala. Acts 536, 537.           See Ala.Code § 12-3-1
    
         6
          The Alabama Constitution provides that, "The office of a
    judge shall be vacant if he dies, resigns, retires, or is
    removed. Vacancies in any judicial office shall be filled by
    appointment by the governor...." Ala. Const. amend. 328, § 6.14
    (1973).
    (1995).    The elections for appellate judges have continued to be
    
    partisan and held at large, and the Governor has continued to fill
    
    mid-term vacancies.
    
                                        B.
    
         On January 27, 1994, Hoover White, on behalf of himself and
    
    the black voters of Alabama, brought this suit against the State of
    
    Alabama and its Secretary of State.        He alleged that the State had
    
    not obtained preclearance, as required by section 5 of the Voting
    
    Rights Act, of any of the legislative enactments described above.7
    
    White asked for a declaration that these enactments were void ab
    
    initio and for appropriate injunctive relief.         A three-judge court
    
    was promptly convened to consider White's section 5 claims. 8            See
    
    42 U.S.C. § 1973c;     28 U.S.C. § 2284.
    
         White also alleged that the at-large system for electing the
    
    members    of   Alabama's   appellate    courts   denies   Alabama's   black
    
    voters, on account of their race, the same opportunity as that
    
    given to white voters to participate in the election of those
    
    members.    He asked the court (1) to declare the at-large election
    
    scheme illegal under both section 2 of the Voting Rights Act and
    
    
         7
          White's original complaint challenged only the split of the
    Court of Appeals and the subsequent addition, in 1971 and 1993,
    of two judges to each of the new courts. On February 16, 1994,
    White amended his complaint to include a challenge to Act No.
    602, 1969 Ala.Acts 1087, which enlarged the Supreme Court. We
    refer to White's amended complaint as the "complaint."
         8
          On April 15, 1994, as indicated in the text part I.D.,
    infra, White's attorneys and the Alabama Attorney General advised
    the three-judge court that they had reached the settlement
    agreement described in the text and asked that court to stay
    further proceedings on White's § 5 claim so that the district
    court could consider the agreement. The three-judge court
    granted their request the same day.
    the Equal Protection Clause of the Fourteenth Amendment, and (2) to
    
    fashion an appropriate remedy to cure these violations.
    
         Within days after White filed his complaint, and before the
    
    defendants were required to file their answer, White's attorneys
    
    and the Attorney General of Alabama, Jimmy Evans, agreed to settle
    
    the case.9   As they were negotiating the terms of the settlement,
    
    Ralph Bradford, a black voter, moved the court on February 2, 1994,
    
    for leave to intervene in the case as a plaintiff representing the
    
    black voters of Alabama.   In the complaint attached to his motion,
    
    Bradford alleged that the at-large system for electing the state's
    
    appellate judges dilutes the votes of black electors and, pursuant
    
    to Thornburg v. Gingles, 
    478 U.S. 30
    , 
    106 S. Ct. 2752
    , 
    92 L. Ed. 2d 25
    
    (1986), he sought an injunction requiring that the judges instead
    
    be elected from single-member districts.     Six days later, Judge
    
    Mark Montiel, a member of the Court of Criminal Appeals, 10 sought
    
    to intervene as a defendant representing a class of all Republican
    
    voters, and a subclass of white Republicans.11 Montiel alleged that
    
    the at-large system dilutes the votes of Republican electors in
    
    
         9
          Jimmy Evans was the Attorney General of Alabama throughout
    the proceedings in the district court. He was defeated in the
    November 1994 general election by the current Attorney General,
    Jeff Sessions. In this opinion, the term "Attorney General"
    denotes the Attorney General of Alabama.
         10
          Judge Montiel did not seek reelection to the Court of
    Criminal Appeals in the November 1994 general election;
    accordingly, his term of office on that court expired effective
    in January 1995.
         11
          Also named with Montiel as class representatives were
    Johnny Curry, a Republican member of the Alabama House of
    Representatives, and Jack Williams, executive director of the
    Alabama Republican Caucus. We refer to these class
    representatives collectively as "Montiel."
    violation of the Equal Protection Clause; like Bradford, he sought
    
    the creation of single-member districts.12
         On February 15, 1994, with these motions pending and without
    
    the benefit of the State's response to the complaint, the district
    
    court held a status conference.       The conference was held off the
    
    record, and the docket sheet does not indicate who attended the
    
    conference or what transpired. What the record does reveal is that
    
    the next day the district court entered an order inviting the
    
    United    States   Department   of   Justice   to   participate   in   the
    
    proceedings as amicus curiae.
    
         On February 22, the State and the Secretary of State answered
    
    White's complaint.     The answer denied that the legislative acts
    
    dividing the Court of Appeals and increasing the size of the three
                                                                      13
    appellate courts had not been precleared under section 5.              The
    
    answer also denied that the at-large election scheme violates
    
    section 2 and that the scheme denies Alabama's black voters the
    
    equal protection of the laws.
    
         Two days later, the Attorney General and White, proceeding
    
    pursuant to Federal Rule of Civil Procedure 68, filed an "offer and
    
    notice of acceptance of judgment" which stated that the case had
    
    
    
    
         12
          On March 4, 1994, the district court denied Montiel's
    motion to intervene as a defendant. On May 17, 1994, as
    indicated part I.D., infra, the court granted Montiel leave to
    intervene as a class plaintiff on behalf of Republican voters.
         13
          With respect to Act No. 93-346, which increased the size
    of the Court of Civil Appeals, the Attorney General asserted in
    the State's answer that the statute had been submitted to the
    Department of Justice for preclearance but that the Department
    had not responded to the submission.
    settled.14    In    this    pleading,    they    asked       the   court   to   give
    
    "preliminary approval ... to the [proposed] judgment, and ... to
    
    set a time, date, and method of notice to class members for the
    
    purpose of facilitating a Rule 23(e) fairness hearing."                    Finally,
    
    they requested that, "[f]ollowing the Rule 23 fairness hearing[,]
    
    ... the court give final approval to the judgment, and request[ed]
    
    the Clerk to forthwith enter said judgment in accordance with Rule
    
    68...."15
    
                                            C.
    
         The agreement that White and the Attorney General submitted
    
    under Rule 68 would, if implemented, permit the State to retain its
    
    at-large system of electing appellate judges. To remedy the racial
    
    vote dilution that this system presumably causes, however, the
    
    agreement would provide a mechanism to ensure that those courts
    
    would have black membership approximately proportionate to the
    
    percentage   of    blacks   in   the   Alabama    voting      population.       The
    
    agreement,   therefore,      would     create    both    a    quota   system    and
    
    proportional representation.16
    
         14
          The Rule 68 pleading stated that, in agreeing to the
    settlement, the State was not admitting liability under the
    Voting Rights Act or the Constitution. In fact, throughout this
    litigation, the State has stood firm in its denial of liability
    under §§ 2 and 5 of the Voting Rights Act and the Equal
    Protection Clause of the Fourteenth Amendment. See infra note
    15.
         15
          In the event the district court did not approve the
    proposed judgment, the State reserved the right to stand on its
    answer to White's complaint and to contest the plaintiff's claims
    under §§ 2 and 5 of the Voting Rights Act and the Equal
    Protection Clause.
         16
          To ensure the perpetuation of the quota system and
    proportional representation, the proposed settlement agreement
    provided:
         For this mechanism to function at the courts of appeals level,
    
    the State (presumably the legislature) would first create two
    
    additional    judgeships           on    each     of   those   courts.      A   "judicial
    
    nominating        commission"       would       then     propose   a   slate    of   three
    
    candidates for each of these judgeships;                        all of the candidates
    
    would be black—from plaintiff White's class.                       The Governor would
    
    fill the position by appointment from the slate;                       if the Governor
    
    "fail[ed] or refus[ed], within the allotted time," to do so, the
    
    Chief     Justice       of   the    Alabama       Supreme      Court   would    make   the
    
    appointment.17       First Proposed Judgment ¶ 4(a)(iv).                  The appointee
    
    would then serve a full six-year term following which he or she
    
    would stand for election.                Thereafter, if at any time there were
    
    fewer than two black judges on either court, any vacancy on the
    
    court     would    be    filled         through    the    foregoing      nomination    and
    
    
    
                 [I]f, after January of 2003, a situation exists on the
                 Supreme Court of Alabama, the Alabama Court of Criminal
                 Appeals or the Alabama Court of Civil Appeals whereby
                 the number of class members who are Associate Justices
                 or Judges on any such Court is fewer than two for more
                 than one year, for any reason, the plaintiffs and the
                 State of Alabama shall attempt to agree on an
                 appropriate measure designed to remedy this situation
                 before the next general election cycle. If the parties
                 are unable to agree on a remedial measure, then the
                 plaintiffs reserve the right to petition the Court for
                 appropriate relief.
    
         First Proposed Judgment ¶ 6. Nothing in this proposed
         agreement or in the record of the proceedings in the
         district court indicates what such "appropriate relief"
         might entail.
         17
          The first proposed judgment, as well as the modified
    agreement White and the Attorney General presented to the
    district court on April 15, 1994, called for the nominating
    commission to send its slate of candidates to both the Governor
    and the Chief Justice. The period of time allotted for making
    the appointment would vary depending on the circumstances.
    appointment process, and the appointee would stand for election
    
    after one year.
    
         The nominating commission would be composed of five members.
    
    Two members would be chosen "by and from" the White class (by its
    
    attorneys), one by and from the Alabama State Bar (an organization
    
    consisting of all lawyers licensed to practice in Alabama), one by
    
    and from the Alabama Lawyers Association (a traditionally black
    
    organization), and one by the other four acting together.    In the
    
    event of a deadlock, the fifth position would be filled by and from
    
    the Alabama Black Legislative Caucus.   Thus, presumably three, and
    
    possibly all five, of the commissioners would be black.
    
         The same nomination and appointment process would ensure the
    
    presence of at least two black justices on the Supreme Court.18   If
    
    by 1995 there were fewer than two black justices on the court, any
    
    vacancy on the court would be filled through the process described
    
    above until two of the court's members were black.    The appointee
    
    would stand for election in Alabama's next general election.      In
    
    1996, if there were still fewer than two black justices, the State
    
    would determine whether every incumbent justice whose seat was up
    
    for reelection in 1996 qualified for election under Alabama law.
    
    If a justice did not so qualify, his or her seat would become a
    
    "remedial" seat and would be filled through the nominating process,
    
    with the appointee serving a full six-year term.   In 1998 and 2000,
    
    if fewer than two justices were black, the legislature would create
    
         18
          As in the case of appointments to the courts of appeals,
    if the Governor "fail[ed] or refus[ed]" to appoint an associate
    justice from the nominating commission's slate within the
    allotted time, the Chief Justice of the Alabama Supreme Court
    would make the appointment.
    an additional seat on the Supreme Court;   the seat would then be
    
    filled by gubernatorial appointment from a slate of three black
    
    candidates presented by the nominating commission.   The appointee
    
    would serve a full six-year term and then stand for election.19
    
         Because this appointment mechanism could lead to a Supreme
    
    Court of eleven justices and the parties desired a court of nine,
    
    the agreement provided "that if the number of associate justices is
    
    increased [beyond nine], a seat on the supreme court would be
    
    abolished if it was vacated by a white justice."        White, 867
    
    F.Supp. at 1561.20   The parties' proposal, and thus the district
    
    court's jurisdiction over the case, "was of unlimited duration."
    
    Id. at 1532.
    
         On March 4, 1994, while the settlement proposal was pending
    
    before the court for preliminary approval, the court granted
    
    Bradford's motion for leave to intervene as a plaintiff. The court
    
    did not, however, pass on Bradford's request that he be certified
    
    
         19
          How these provisions regarding the Supreme Court would
    operate together is illustrated by the following hypothetical.
    Suppose that by 1995 the Supreme Court had no black justices. If
    one justice retired, his or her seat would be filled through the
    appointment process described in the text; the appointee would
    then run in the 1996 general election. If, following that
    election, the court had fewer than two black justices, the
    legislature would create a seat, to which a black would be
    appointed. That appointee would serve out a six-year term and
    then stand for election. Finally, if, after the 1998 election,
    the court had fewer than two black justices, the legislature
    would create a second new seat (for a total of eleven) to which a
    black would be appointed for a six-year term.
         20
          The record contains no indication as to when the Alabama
    Supreme Court might return to a court of nine justices, nor does
    the record indicate whether a seat vacated by a white justice
    would be abolished if the court had fewer than two black
    justices. At the very least, the proposed agreement is ambiguous
    on this point.
    to represent a class of black voters.             In fact, the court never
    
    acted on that request.   Also on March 4, Christopher Boehm, a white
    
    voter, moved for leave to intervene as a "defendant supporting the
    
    current system of at-large elections."           Id. at 1530.      Boehm sought
    
    certification of a class of Alabama electors who are not black.
    
    The court granted Boehm's motion on May 24.
    
                                         D.
    
         On April 5, the district court held a third off-the-record
    
    status conference.21   Again, the docket sheet does not indicate who
    
    attended the meeting or what transpired. Apparently as a result of
    
    this conference, White and the Attorney General modified their
    
    earlier   settlement   proposal   and,      on    April   15,    submitted   the
    
    modification to the court in a second Rule 68 filing.                        The
    
    modification purportedly eliminated the quota system originally
    
    proposed.      Specifically,   the        new    agreement      eliminated   the
    
    requirement that the slates presented by the nominating commission
    
    to the Governor contain only blacks. The commission's composition,
    
    however, would remain predominantly black.
    
         In addition, the new agreement retained the proportional
    
    representation feature of the original proposal.22                That is, the
    
         21
          The court's second off-the-record status conference was
    held on March 3; it does not appear to be relevant for our
    purposes.
         22
          To ensure the maintenance of proportional representation
    on Alabama's appellate courts, the modified agreement provided
    that:
    
                [I]f, after January of 2003, a situation exists on the
                Supreme Court of Alabama, the Alabama Court of Criminal
                Appeals or the Alabama Court of Civil Appeals whereby
                there are fewer than 2 sitting Associate Justices or
                judges on any such court who either are members of the
    parties intended that two seats on the Supreme Court and the courts
    
    of appeals would be occupied by representatives of Alabama's black
    
    voters.
    
          Under the new arrangement, the district court would retain
    
    jurisdiction for twenty-four years.23             However, "if the court
    
    [found] that any part of the judgment ha[d] not been met it
    
    [could], in its discretion, extend any portion of the judgment it
    
    deem[ed] appropriate."      Id. at 1571;    Final Judgment ¶ 11.24
    
          Prior to this second Rule 68 submission, the United States
    
    Department of Justice, exercising its authority under section 5 of
    
    the   Voting   Rights   Act,   precleared   the    challenged   legislative
    
    enactments and the changes the modified settlement agreement would
    
    make to Alabama's appellate court structure, contingent on the
    
    district court's approval and implementation of that agreement.
    
    Armed with this conditional approval, White and the Attorney
    
    General, on April 15, 1994, jointly moved the three-judge court
    
    presiding over the section 5 claims to stay further proceedings
    
    
               plaintiff class or who were appointed pursuant to the
               judicial nominating commission procedure created by
               this judgment for more than one year, for any reason,
               the plaintiffs and the State of Alabama shall attempt
               to agree on an appropriate measure designed to remedy
               this situation before the next general election cycle.
               If the parties are unable to agree on a remedial
               measure, then the plaintiffs reserve the right to
               petition the Court for appropriate relief.
    
          Final Judgment ¶ 7;      White, 867 F.Supp. at 1570.
          23
          As noted in part I.C., supra, under the original proposal
    the district court would have retained jurisdiction for an
    "unlimited duration."
          24
          Nothing in the modified proposal or in the record
    indicates the extent of the district court's discretion to
    "extend any portion of the judgment it deem[ed] appropriate."
    with respect to those claims so that the district court could
    
    review their settlement proposal.        The three-judge court granted
    
    their motion that day.25
    
          On May 3, 1994, the district court held its fourth status
    
    conference. Again, the conference was held off the record, and the
    
    docket sheet does not indicate who attended it or what transpired.
    
    On May 17, the court conditionally approved the modified settlement
    
    agreement, and scheduled a fairness hearing for July 29, 1994.
    
    Also on May 17, the district court, having previously denied Judge
    
    Montiel leave to intervene as a party defendant representing
    
    Republican voters, see supra note 12, granted Montiel leave to
    
    intervene as a plaintiff and to file a complaint on behalf of those
    
    voters. In his complaint, Montiel claimed that the at-large scheme
    
    of electing Alabama's appellate judges denied Republican voters the
    
    equal protection of the laws;      as a remedy, he sought replacement
    
    of the at-large scheme with single-member districts.
    
          Montiel also objected to the modified settlement agreement.
    
    First, he claimed that the Voting Rights Act foreclosed as a remedy
    
    for vote dilution the nominating commission appointment process
    
    White and the Attorney General were advocating.        Alternatively, he
    
    contended that the proposed appointment process would create an
    
    unconstitutional racial quota system for the selection of Alabama's
    
    appellate judges.     Finally, he asserted that the Attorney General
    
    had   agreed   to   this   arrangement   for   the   express   purpose   of
    
          25
          The three-judge panel held that it did "not have the
    jurisdiction to consider the validity of the settlement
    agreement," because the settlement was essentially a § 2 remedy.
    White v. State of Alabama, 
    851 F. Supp. 427
    , 428-429
    (M.D.Ala.1994).
    perpetuating in office—on the Supreme Court and the courts of
    
    appeals—members         of     the    Democratic      party          and        effectively
                                                                    26
    disenfranchising Alabama's Republican voters.                              If    the   court
    
    rejected the proposed settlement and ordered instead that Alabama's
    
    appellate      judges    be    elected      from   single-member           districts—the
    
    traditional vote dilution remedy—Republican voters would have a
    
    meaningful opportunity to elect members of their party to office.
    
                                                E.
    
              On   July   29,     1994,   the   "fairness    hearing"          was     held   as
    
    scheduled.27     At the hearing, the court entertained objections from
    
    intervenors      Bradford       and   Montiel,     and   from        three       non-party
    
    
         26
          In addition, Montiel alleged that by eschewing the
    establishment of single-member districts and preserving the
    at-large system of elections, the proposed settlement would
    protect the incumbencies of the current members of those courts
    by ensuring that none of those members would be opposed for
    reelection by another member of the court.
         27
          In compliance with Fed.R.Civ.P. 23(e), which governs the
    settlement of class actions, White and the Attorney General
    provided notice of the proposed settlement in several Alabama
    newspapers. Notice is provided in class action settlements to
    give members of the class the opportunity to object to the
    proposed settlement; here, the notice went "to all resident
    citizens and electors of the State of Alabama." Although the
    notice went to all of Alabama's citizens, in determining whether
    the settlement was objectionable the district court considered
    only whether the black community opposed it. Noting that only
    two members of that community objected to the proposed
    settlement, the court inferred that the settlement was
    unobjectionable. White, 867 F.Supp. at 1534.
    
              After studying the notice, however, we conclude that
         the district court erred in drawing such inference. To be
         effective, class notice must be understandable. The notice
         provided by White and the Attorney General was printed in
         very small type and couched in "legalese" at times so dense
         that even a lawyer would have had difficulty determining the
         settlement's probable impact on Alabama's judicial system
         and on the rights of Alabama voters. It is not surprising
         that few people objected.
    objectors,28 that a final judgment incorporating the settlement
    
    would be unlawful on several grounds.   The objectors asserted that
    
    the judgment would (1) provide a remedy not authorized by the
    
    Voting Rights Act;   (2) violate the Equal Protection Clause by
    
    setting aside race-based seats on Alabama's appellate courts;   (3)
    
    violate the Alabama Constitution by providing for the appointment,
    
    rather than election, of judicial officers for six-year terms; and
    
    (4) disenfranchise all Alabama voters by effectively removing some
    
    judicial elections from the ballot box.
    
         These objectors also contended that the Attorney General, a
    
    member of the executive branch of the state government, lacked the
    
    authority to compel the legislative branch of that government to
    
    increase the size of Alabama's appellate courts as the proposed
    
    settlement would require.   Under Alabama's constitution, see supra
    
    note 1, and its separation of powers doctrine,29 the determination
    
    of the size of the state's appellate courts is the legislature's
    
    prerogative.   The objectors also contended that the Attorney
    
         28
          Among the non-party objectors were Jeff Sessions, the
    present Attorney General of Alabama, and Perry Hooper, who became
    Chief Justice of Alabama as the result of the November 1994
    general election.
         29
          The separation of powers doctrine is expressed in the
    Alabama Constitution:
    
              In the government of this state, except in the
              instances in this Constitution hereinafter expressly
              directed or permitted, the legislative department shall
              never exercise the executive and judicial powers, or
              either of them; the executive shall never exercise the
              legislative and judicial powers, or either of them;
              the judicial shall never exercise the legislative and
              executive powers, or either of them; to the end that
              it may be a government of laws and not of men.
    
         Ala. Const. art. III, § 43.
    General    lacked   the   authority     to   remove     the   selection    of    an
    
    appellate judge from the ballot box. That authority resides in the
    
    people    of   Alabama;     it    is    exercised     through      constitutional
    
    amendment. Thus, according to the objectors, the Attorney General,
    
    in purporting to bind the legislature and the people of Alabama to
    
    the changes the settlement would effect, plainly exceeded his
    
    authority.
    
         At the end of the hearing, the district court took the
    
    foregoing objections under advisement. Also taken under advisement
    
    was a written objection filed by intervening defendant Boehm.30
    
    Boehm's concern was that, although the modified proposal had
    
    eliminated the requirement that only blacks be appointed through
    
    the nominating process, the composition of the commission was such
    
    that only blacks would be appointed.31
    
         On    August   31,   1994,   the    court   decided      to   entertain    the
    
    plaintiffs' evidence of racial vote dilution and scheduled a
    
    hearing thereon for September 2.          At that hearing, the court heard
    
    the testimony of two expert witnesses who had been employed by
    
    White to study voting patterns in prior statewide elections in
    
    Alabama.       These   experts    concluded      that   the    voting   patterns
    
    demonstrated that the state's white voters and black voters tended
    
    to vote in racial blocs;         thus, white voters were usually able to
    
    
         30
          The court also entertained several other written
    objections, none of which are pertinent here.
         31
          Boehm's memorandum expressed this point as follows:
    "[T]he record ... clearly establish[es] that the purpose of the
    Judicial Nominating Commission is to secure the approval of
    African-American candidates on behalf of African-American
    voters." Record vol. 6, no. 128, at 5.
    preclude black voters from electing their candidates of choice.
    
    The experts stated that this situation could be remedied by having
    
    the nine justices of the Supreme Court and the five judges of the
    
    respective courts of appeals elected from single-member districts.
    
    According to one of the experts, Jerry Wilson, the districts could
    
    be drawn so that black voters would comprise a majority in two
    
    Supreme Court districts and in one district for each court of
    
    appeals.    At the conclusion of the hearing, the court took the case
    
    under submission.
    
         On    September   14,   the   district   court   held   yet    another
    
    off-the-record status conference. The docket sheet does not reveal
    
    who attended the conference or what transpired there.              The next
    
    day, White and the Attorney General filed a "Joint Notice of Filing
    
    of Revised Final Judgment."        This document revised the modified
    
    proposal considered at the fairness hearing in two substantive
    
    respects.
    
         First, the revision made it possible for the nominating
    
    commission to have more than nominal white membership. Although it
    
    retained the requirement that two members of the commission be
    
    blacks, selected by White's lawyers, and that a third member be
    
    selected by the traditionally black Alabama Lawyers Association,
    
    the revision permitted that association to appoint from outside its
    
    membership and thus, perhaps, place a non-black person on the
    
    commission.    Similarly, in the event of a deadlock in choosing the
    
    fifth member of the commission, the Alabama Black Legislative
    Caucus could also appoint a non-black to the commission.32
    
         Second, the revision eliminated the authority of the Chief
    
    Justice of the Alabama Supreme Court to make an appointment from
    
    the nominating commission's slate if the Governor failed or refused
    
    to do so.
    
         White and the Attorney General served their joint notice on
    
    all of the other parties in the case:             Bradford, Montiel, and
    
    Boehm.    Although the proposed revisions to the judgment would
    
    substantively change the judicial appointment process, the court
    
    invited no response from these other parties.           The court did hold
    
    another status conference on October 4—this time on the record—but
    
    neither these revisions nor any other substantive provisions of the
    
    proposed final judgment were discussed.33
    
                                           F.
    
         On October 6, 1994, the district court issued its "Memorandum
    
    Opinion and Order" and entered the final judgment White and the
    
    Attorney General had proposed following the September 14 status
    
    conference.       White   v.   State    of   Alabama,   
    867 F. Supp. 1519
    
    (M.D.Ala.1994).    The court rejected the arguments in opposition to
    
    
         32
          The proposed revision appears to have been an attempt to
    assuage Boehm's concern that White's and the Attorney General's
    previous proposals, in providing for a commission dominated by
    blacks, would ensure that only blacks would be presented to the
    Governor for appointment. See supra note 31. Whether the
    proposed revision would produce a different result is
    questionable.
         33
          Rather, the record reveals that the court and counsel
    canvassed the seats on the Supreme Court and the courts of
    appeals in an effort to identify those whose seats had not been
    precleared under § 5 of the Voting Rights Act. They also
    discussed how long some of the appointees to these courts had
    served prior to standing for election.
    the settlement agreement presented at the July 29 fairness hearing.
    
    Specifically,    the   court     rejected   the    notion    that   the   remedy
    
    provided by the judgment could not be sanctioned under the Voting
    
    Rights Act and that the remedy effectively prescribed a quota
    
    system that could not be squared with the Equal Protection Clause.
    
    Turning to the argument that the Attorney General had exceeded his
    
    authority by agreeing to the proposed settlement, the court held
    
    that because the Attorney General has broad authority to conduct
    
    litigation for the State, he had the authority to enter into the
    
    agreement at issue.        Additionally, the court observed that, if
    
    necessary to remedy a case of vote dilution, the court would itself
    
    have the authority to impose the sort of remedy that White and the
    
    Attorney General had proposed.
    
         After disposing of these objections, the court addressed the
    
    question   of   whether,    in   the   face   of   the   State's    denial   of
    
    liability, the plaintiffs had made out a prima facie case under the
    
    Voting Rights Act.       Citing Alabama's history of discrimination
    
    against blacks and the opinion of the two election experts, the
    
    court found "a strong basis in evidence" for a case of vote
    
    dilution under section 2 of the Act sufficient to justify its
    
    approval of the proposed settlement agreement.              White, 867 F.Supp.
    
    at 1554, 1554-57.      Given this conclusion, the court apparently
    
    deemed it unnecessary to reach White's claim under the Equal
    
    Protection Clause.
    
          The same day it entered a final judgment incorporating the
    
    settlement agreement White and the Attorney General had reached,
    
    the court granted the State summary judgment on Montiel's equal
    protection claims.   White v. State of Alabama, 
    867 F. Supp. 1571
    
    (M.D.Ala.1994).   Montiel appeals that ruling in No. 94-7081.    We
    
    dispose of part of his appeal in the margin.34      We consider the
    
    remaining part of Montiel's appeal in No. 94-7024, which Montiel
    
    and Bradford are prosecuting jointly.35   We resolve their appeal in
    
    the discussion that follows.
    
                                    II.
    
         The first question we address is whether section 2 of the
    
    Voting Rights Act forecloses the remedy provided in the district
    
         34
          As noted in part I.D., supra, Montiel alleged in his
    complaint that the at-large system for electing Alabama's
    appellate judges denies Republican voters the equal protection of
    the laws. As a remedy, he sought the creation of a single-member
    district scheme. In addition to asserting this claim, Montiel
    questioned the legality of the settlement White and the Attorney
    General had proposed. He claimed that the Voting Rights Act
    foreclosed the adoption of the settlement as a remedy for vote
    dilution. Further, he alleged that the proposed appointment
    process would create an unconstitutional racial quota system for
    the selection of Alabama's appellate judges. Finally, he
    contended that the Attorney General and White crafted their
    settlement for the express purpose of perpetuating in office
    members of the Democratic Party and effectively disenfranchising
    Alabama's Republican voters.
    
              In appealing the district court's grant of summary
         judgment, Montiel did not challenge the district court's
         rejection of the cause of action he brought on behalf of
         Republican voters under the Equal Protection Clause.
         Accordingly, we deem it abandoned and dismiss his appeal in
         No. 94-7081. We consider Montiel's objections to the
         remedial portions of the district court's final judgment in
         No. 94-7024. In that appeal, Montiel and Bradford filed a
         joint brief; hence, we treat their arguments as having been
         jointly made.
         35
           Although the State of Alabama is an appellee, the present
    Alabama Attorney General, Jeff Sessions, also challenges as
    unlawful the district court's final judgment; in effect, he
    contends that his predecessor in office invited the district
    court to commit error. For purposes of this appeal, however, we
    assume that the State is bound by the settlement agreement the
    former Attorney General, Jimmy Evans, urged upon the district
    court.
    court's judgment.       In the context of this case, the question
    
    becomes whether the Act precludes the district court from removing
    
    judicial    selection   from   the     ballot    box,   and   whether    the   Act
    
    precludes proportional representation. We consider these issues in
    
    turn.
    
                                           A.
    
             Section 2 of the Act applies to state judicial elections.
    
    Chisom v. Roemer, 
    501 U.S. 380
    , 404, 
    111 S. Ct. 2354
    , 2368, 
    115 L. Ed. 2d 348
     (1991).     Here we are concerned with whether the relief
    
    provided by the district court's judgment is within the scope of
    
    section 2.     See United States v. Dallas County Comm'n,               
    850 F.2d 1433
    , 1437-38 (11th Cir.1988), cert. denied, 
    490 U.S. 1030
    , 
    109 S. Ct. 1768
    , 
    104 L. Ed. 2d 203
     (1989).
    
         Section 2 provides:
    
         (a) No voting qualification or prerequisite to voting or
         standard, practice, or procedure shall be imposed or applied
         by any State or political subdivision in a manner 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....
    
         (b) A violation of subsection (a) of this section is
         established if, based on the totality of circumstances, it is
         shown that the political processes leading to nomination or
         election in the State or political subdivision are not equally
         open to participation by members of a class of citizens
         protected by subsection (a) of this section in 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. The extent to which
         members of a protected class have been elected to office in
         the State or political subdivision is one circumstance which
         may be considered: Provided, That nothing in this section
         establishes a right to have members of a protected class
         elected in numbers equal to their proportion in the
         population.
    
    42 U.S.C. § 1973 (emphasis added).
    
            Congress   enacted   section    2   to   give   those   who     had    been
    disenfranchised         on   account   of    their    race    the    opportunity    to
    
    participate in the political process.                      The Act is designed to
    
    redress     past       discrimination       that   inhibited        the   ability   of
    
    minorities to express their preference for certain candidates
    
    through the electoral process, i.e., at the ballot box.36                    Sections
    
    4 and 5 of the Act prohibit the use of tests or devices, and the
    
    alteration of voting qualifications or procedures, in a manner that
    
    deprives citizens of their right to vote.                  See 42 U.S.C. §§ 1973b,
    
    1973c.      Section 2 proscribes practices that, while permitting a
    
    mechanical exercise of the right to vote, dilute the votes of a
    
    racial minority (through gerrymandering or other tactics) and thus
    
    render its votes meaningless.           See Shaw v. Reno, --- U.S. ----, ---
    
    -, 
    113 S. Ct. 2816
    , 2823, 
    125 L. Ed. 2d 511
     (1993).                     In essence, the
    
    Act empowers minorities by providing them meaningful access to the
    
    ballot box.
    
         The nexus between section 2 and the act of voting is further
    
    evidenced when one considers the source of authority for section 2.
    
    Section     2    was    enacted   to    enforce      the    Fifteenth     Amendment's
    
    prohibition against denying a citizen the right to vote "on account
    
    of race."37       U.S. Const. amend XV; NAACP v. New York, 
    413 U.S. 345
    ,
    
         36
          The legislative history is clear in this respect: "The
    court should exercise its traditional equitable powers to fashion
    the relief so that it completely remedies the prior dilution of
    minority voting strength and fully provides equal opportunity for
    minority citizens to participate and to elect candidates of their
    choice." S.Rep. No. 417, 97th Cong., 2d Sess. 31, reprinted in
    1982 U.S.C.C.A.N. 177, 208 (emphasis added).
         37
              The Fifteenth Amendment reads:
    
                         Section 1. The right of citizens of the United
                    States to vote shall not be denied or abridged by the
                    United States or by any State on account of race,
    350, 
    93 S. Ct. 2591
    , 2595, 
    37 L. Ed. 2d 648
     (1973);              Allen v. State
    
    Bd. of Elections, 
    393 U.S. 544
    , 556, 
    89 S. Ct. 817
    , 826, 
    22 L. Ed. 2d 1
     (1969) ("The Act was drafted to make the guarantees of the
    
    Fifteenth Amendment finally a reality for all citizens.").38
    
            A judicial remedy fashioned under section 2 must therefore
    
    enhance the ability of the plaintiffs to elect their candidates of
    
    choice.      Any remedy that has the effect of eliminating this
    
    essential element of choice is invalid, for it contravenes the
    
    spirit and purpose of the Act.           A remedy such as the one fashioned
    
    in this case, calling for the appointment of judges to posts which,
    
    under     state   law,   are   to   be   filled   by   election,   effectively
    
    nullifies voting power and contravenes the stated objectives of
    
    
    
                 color, or previous condition of servitude.
    
                      Section 2. The Congress shall have power to
                 enforce this article by appropriate legislation.
    
         U.S. Const. amend. XV (emphasis added). As Justice
         Frankfurter stated, "[t]he Amendment nullifies sophisticated
         as well as simple-minded modes of discrimination. It hits
         onerous procedural requirements which effectively handicap
         exercise of the franchise by the colored race...." Lane v.
         Wilson, 
    307 U.S. 268
    , 275, 
    59 S. Ct. 872
    , 876, 
    83 L. Ed. 1281
         (1939) (emphasis added). It has been employed to strike
         down such tactics as the grandfather clause, see Guinn v.
         United States, 
    238 U.S. 347
    , 
    35 S. Ct. 926
    , 
    59 L. Ed. 1340
         (1915), and racial gerrymandering, see Gomillion v.
         Lightfoot, 
    364 U.S. 339
    , 
    81 S. Ct. 125
    , 
    5 L. Ed. 2d 110
     (1960).
         Constitutional challenges to those practices are now
         analyzed under the Equal Protection Clause rather than the
         Fifteenth Amendment.
         38
          The same is true of other provisions in the Voting Rights
    Act. See, e.g., City of Rome v. United States, 
    446 U.S. 156
    ,
    177, 
    100 S. Ct. 1548
    , 1562, 
    64 L. Ed. 2d 119
     (1980) ("[T]he Act's
    ban [in § 5] on electoral changes that are discriminatory in
    effect is an appropriate method of promoting the purposes of the
    Fifteenth Amendment...."). For a more detailed account of the
    history and purpose of the Voting Rights Act, see Shaw v. Reno, -
    -- U.S. ----, 
    113 S. Ct. 2816
    , 
    125 L. Ed. 2d 511
     (1993).
    section 2.
    
         In short, the district court has employed the Voting Rights
    
    Act to usurp voting power from the very minority which, under the
    
    Act, is entitled to wield it.            Such a practice can hardly be
    
    condoned.      We have repeatedly insisted that the Act guarantees the
    
    right to elect representatives.           See, e.g., Southern Christian
    
    Leadership Conference v. Sessions, 
    56 F.3d 1281
    , 1296 n. 25 (11th
    
    Cir.1995) (en banc), cert. denied, --- U.S. ----, 
    116 S. Ct. 704
    , --
    
    - L.Ed.2d ---- (1996).      The will of the people is expressed through
    elections, not by commissions created to divine their preferences
    
    for them.      We "find[ ] a certain irony in using the Voting Rights
    
    Act to deny citizens the right to select public officials of their
    
    choice."39     Brooks v. State Bd. of Elections, 
    848 F. Supp. 1548
    ,
    
    1568, remanded and appeal dismissed as moot, 
    59 F.3d 1114
     (11th
    
    Cir.1995) (emphasis added).
    
         The district court seeks to justify this denial by presuming
    
    that the nominating commission will "serve as a proxy for black
    
    voters"   in    choosing   the   slate   presented   to   the   Governor   for
    
         39
          We note that all Alabama voters, both black and white, are
    disenfranchised by the settlement's appointment process. The
    district court's order does not address this problem. The
    court's observation that some of Alabama's judges have been
    appointed to office in the past is of no moment. See White, 867
    F.Supp. at 1536. Those appointments have occurred pursuant to
    state law, not as a remedy for a violation of § 2 of the Voting
    Rights Act. Under the Alabama Constitution, the governor fills
    vacancies that occur mid-term. Ala. Const. amend. 328, § 6.14
    (1973). Also beside the point is the court's observation that
    the judges appointed pursuant to the final judgment will
    eventually have to stand for election, and thus that the
    disenfranchisement wrought by the court's judgment will merely be
    temporary. See White, 867 F.Supp. at 1536. The fact remains
    that some of those judges will hold office for six years before
    the voters of Alabama have a chance to meet them in the ballot
    box. See id. at 1526.
    appointment to the appellate bench.           White, 867 F.Supp. at 1561.
    
    We are not persuaded.          How the nominating commission is to be
    
    informed   of    the   views   of    Alabama's   black     voters   is   nowhere
    
    explained.      The best the court could say is that the commission is
    
    "composed in a manner to attempt to reflect the interests of most
    
    African-American Alabamians."          Id. at 1526.
    
         The nominating commission created by the district court's
    
    judgment     resembles,    but      only   superficially,     the   nominating
    
    commissions many states employ under the so-called "Missouri Plan"
    as a means of ensuring that judicial appointments are made on merit
                                                          40
    as opposed to sheer political expediency.                    Under a typical
    
         40
          Thirty-four states and the District of Columbia currently
    have "Missouri Plans" for the selection of some or all of their
    judges. See Jona Goldschmidt, "Merit Selection: Current Status,
    Procedures, and Issues," 49 U.Miami L.Rev. 1, 2-3 (1994). In
    most states, the plan is implemented by a constitutional or
    statutory provision. Id. at 19-20.
    
              Every state in the Eleventh Circuit uses a nominating
         commission for some judicial appointments. In Alabama,
         several counties have five-member commissions for the
         appointment of circuit judges (who, following their
         appointment, must run in the next general election). Two of
         the commission members are lawyers chosen by the state or
         county bar. Two non-lawyer members are selected by the
         legislature, and the last member is a judge, chosen by the
         judges of the circuit. See Ala. Const. amend. 328, § 6.14;
         see also Ala. Const. amends. 83 and 110 (Jefferson County).
         In Georgia, a nine-member commission is charged with filling
         interim vacancies on all state courts save the supreme
         court. The governor appoints five members of the
         commission, three lawyers and two non-lawyers. The
         lieutenant governor and the speaker of the house of
         representatives each appoint one non-lawyer member, and two
         members serve ex officio. See Ga. Const. art. VI, § VII,
         para. III; Executive Order, Judicial Nominating Commission
         (Feb. 27, 1995) (establishing commission for Governor Zell
         Miller's term in office). Florida has nine-member
         commissions to fill vacancies in all levels of the state
         judiciary. Three members are appointed by the governor,
         three are appointed by the Florida Bar, and three are
         elected by majority vote of other six. See Fla. Const. art.
    "Missouri Plan," a state's voters have a choice in the composition
    
    of the nominating commission because, in large part, those who
    
    appoint the commissioners are elected officials, such as the
    
    governor or the members of the legislature.           Here, by way of
    
    contrast, Alabama's voters will have essentially no choice.           Two
    
    members of the commission will be hand-picked by the plaintiff's
    
    lawyers from the class White represents;         no commission members
    
    will be chosen by elected representatives.       The commission will be
    
    overseen by a life-tenured federal district judge who retains the
    
    power to fashion "appropriate relief" in the event the scheme fails
    
    to ensure the presence of at least two representatives of the
    
    plaintiff class on each of Alabama's appellate benches.        See supra
    
    note 23.   The only actor in the court's plan who is accountable to
    
    the voters is the Governor, and his hands will be tied by the
    
    court's judgment.41    Dissatisfied voters, black or white, will have
    
    no   recourse   if    the   candidates   the   commission   selects   are
    
    unsatisfactory; thus, the commission will have a license to select
    
    its nominees with impunity.
    
         Accordingly, we conclude that an appointment procedure such as
    
    the one the district court would implement in this case is a remedy
    
    foreclosed by the Voting Rights Act.42 The United States Department
    
         5, § 11;   Fla.Stat. § 43.29.
         41
          There is no provision in the judgment that would give the
    Governor the authority to reject a slate proposed by the
    nominating commission on the ground that the nominees possessed
    nothing more than the bare legal qualifications for judicial
    office.
         42
          Because we dispose of the district court's judgment on the
    ground that it violates the Voting Rights Act, we need not, and
    indeed should not, discuss whether the judgment violates the
    of Justice, appearing as amicus curiae, conceded this point in oral
    
    argument, but contended that because the district court's final
    
    judgment is a "consent decree," the fact that the remedy it
    
    provides is not authorized by the Voting Rights Act should not
    
    concern us.   We address this argument, and reject it, in part IV,
    
    infra.
    
                                    B.
    
         The goal the White class seeks to achieve in this case is
    
    proportional representation on Alabama's appellate courts.43   Both
    
    
    Equal Protection Clause by setting aside race-based seats on
    Alabama's appellate courts. See Ashwander v. Tennessee Valley
    Auth., 
    297 U.S. 288
    , 347, 
    56 S. Ct. 466
    , 483, 
    80 L. Ed. 688
     (1936)
    (Brandeis, J., concurring) ("The Court will not pass upon a
    constitutional question although properly presented by the
    record, if there is also present some other ground upon which the
    case may be disposed of.").
         43
          Moreover, the White class seeks to achieve this goal
    without paying the price a minority might be expected to pay to
    attain proportional representation. That is, the typical remedy
    for racial vote dilution yielded by at-large voting in a
    multi-member district is to divide the district into
    single-member districts if the plaintiff minority is sufficiently
    cohesive and compact to comprise a majority in one or more
    single-member districts. See Gingles, 478 U.S. at 50, 106 S.Ct.
    at 2766. In such a case, the minority, having been cabined in
    this manner, necessarily loses influence in the other districts.
    See Nipper v. Smith, 
    39 F.3d 1494
    , 1543 (11th Cir.1994) (en
    banc), cert. denied, --- U.S. ----, 
    115 S. Ct. 1795
    , 
    131 L. Ed. 2d 723
     (1995); League of United Latin American Citizens v.
    Clements, 
    999 F.2d 831
    , 873 (5th Cir.1993) (en banc).
    
              In this case, the trade-off described above does not
         occur; rather, in choosing the members of the appellate
         bench, the influence of the minority voters is
         disproportionately enhanced at the expense of the majority.
         That is, the minority is given the right to fill by
         appointment two seats on each of the appellate courts while
         at the same time maintaining its admittedly "significant
         influence" in the choice of those selected through the
         ballot box. White, 867 F.Supp. at 1535. According to
         members of the White class, who urged the court to approve
         the settlement, "the proposed settlement is superior to
         single-member districts for appellate courts because
    the original and modified settlement proposals presented to the
    
    district court make this quite clear.        Section 2 of the Voting
    
    Rights   Act   states,   however,   that   "nothing   in   this   section
    
    establishes a right to have members of a protected class elected in
    
    numbers equal to their proportion in the population."        42 U.S.C. §
    
    1973(b);   see Thornburg v. Gingles, 
    478 U.S. 30
    , 84, 
    106 S. Ct. 2752
    , 2784, 
    92 L. Ed. 2d 25
     (1986) (O'Connor, J., concurring).
    
    Notwithstanding this statutory caveat, the district court used the
    
    attainment of proportionality as a justification for entering the
    
    judgment at hand. The following paragraph from the court's opinion
    
    illustrates this point:
    
         [T]he court notes that blacks comprise approximately 25% of
         the population of Alabama and 23% of the voting age
         population.   For the purposes of this inquiry, the court
         chooses the more conservative figure of 23% for the relevant
         pool. In affirmative action terms, this means that absent
         voting discrimination it would be expected that around 23% of
         judges would be minority-preferred candidates. The proposed
         settlement contemplates relief reaching two seats on each of
         the seven-member appeals courts or 28% of the seats and two
         seats on the nine-member supreme court or 22% of the seats.
         The court finds that the number of judgeships reached by the
         proposed settlement as a percentage of the seats on each
         appellate court is comparable to the black percentage of the
         voting age population in Alabama.
    
    White, 867 F.Supp. at 1562.     This statement speaks for itself—in
    
    approving the settlement, the district court ignored Congress's
    
    admonition that the Voting Rights Act is not be used as a vehicle
    
    to establish proportional representation.
    
    
         at-large seats allow blacks to have a significant influence
         on all appellate judges, rather than have their dominance
         limited to a small number of districts with little presence
         in the majority of districts." Id. (citing affidavits of
         Richard Arrington, Jr., mayor of Birmingham, Alabama, and
         Joe L. Reed, chairman of the Alabama Democratic Conference
         (a statewide black political organization that is an arm of
         the Alabama Democratic Party)).
                                              III.
    
              Putting aside the question whether the district court's
    
    remedy is cognizable under section 2, we conclude that the district
    
    court, in fashioning its remedy, lacked the authority to require
    
    Alabama to increase the size of its appellate courts.                     We base our
    
    conclusion that the court lacked such power on Nipper v. Smith,
    
    where we said that "federal courts may not mandate as a section 2
    
    remedy that a state or political subdivision alter the size of its
    
    elected bodies."          Nipper v. Smith, 
    39 F.3d 1494
    , 1532 (11th
    
    Cir.1994) (en banc), cert. denied, --- U.S. ----, 
    115 S. Ct. 1795
    ,
    
    
    131 L. Ed. 2d 723
     (1995).44
    
         We also draw, as we did in               Nipper, on the Supreme Court's
    
    decision in Holder v. Hall, --- U.S. ----, 
    114 S. Ct. 2581
    , 
    129 L. Ed. 2d 687
     (1994).         In    Holder, black plaintiffs proposed as a
    
    remedy     for   racial   vote    dilution        that   the   court    increase   the
    
    membership of a county commission from one person to six, a
    
    chairman to be elected at large and five members to be elected from
    
    single-member districts.              According to the plaintiffs, the black
    
    voting     population     was    sufficiently        cohesive     and    compact    to
    
    constitute       a   majority    in    one   of    the   suggested      single-member
    
    districts.
    
         The Supreme Court rejected the plaintiffs' proposal.                          The
    
    Court held that the plaintiffs had no case under section 2 because
    
    there was no objectively reasonable "benchmark" with which to
    
    compare the existing scheme in order to determine whether racial
    
         44
          Nipper was decided in December of 1994, and thus the
    district court did not have the benefit of Nipper 's holding when
    it decided this case.
    vote    dilution     was    actually    taking    place.     "In     order   for    an
    
    electoral system to dilute a minority group's voting power, there
    
    must be an alternative system that would provide greater electoral
    
    opportunity to minority voters."               Id. at ----, 114 S.Ct. at 2589
    
    (O'Connor, J., concurring).             When comparing the sizes of elected
    
    bodies, there are many possible alternatives, but no "principled
    
    reason why one size should be picked over another as the benchmark
    
    for comparison."            Id. at ----, 114 S.Ct. at 2586 (plurality
    
    opinion) (emphasis added).             It is not the absence of a benchmark
    
    that is the problem when evaluating the size of an elected body;
    
    the    difficulty    is     that   a   court   cannot    reasonably    choose      one
    
    benchmark over another.45
    
           This difficulty is presented also by this case.                The district
    
    court constructed a benchmark by using proportional representation.
    
    As noted part II.B., supra, the court observed that blacks comprise
    
    23% of the voting age population in Alabama;                accordingly, 23% of
    
    the judges should be minority-preferred candidates.                     White, 867
    
    F.Supp. at 1562. Having drawn this conclusion, the court asked, in
    
    effect:     How large must the Supreme Court and the courts of appeals
    
    be    to    ensure   that    minority-preferred         candidates    occupy    that
    
    percentage of the courts' seats?               The answer is a Supreme Court
    
    with nine, ten, or eleven seats and courts of appeals with seven
    
    
           45
          The question before the Court in Holder was one of
    statutory interpretation: whether increasing the size of the
    Bleckley County Commission was permissible under § 2. The Court
    did not find the answer to this question in the language of the
    statute or its legislative history; it found the answer by
    considering the difficulty a district court would encounter in
    inferring a reliable benchmark from the circumstantial evidence
    before it.
    seats each.
    
         The   problem   with    these   benchmarks   is   that   they    are   not
    
    principled. Rather, they are based on proportional representation,
    
    which, under the Voting Rights Act, is impermissible.                See supra
    
    part II.B.    Once these benchmarks are eliminated, one must engage
    
    in sheer speculation to arrive at an appropriate benchmark, or
    
    size, for each court.       With respect to the courts of appeals, for
    
    example, one might argue that six judges would suffice;                another
    
    might opt for seven or eight.46            Holder precludes this sort of
    
    speculation.
    
                                         IV.
    
         As our discussion in Parts II and III makes clear, the remedy
    
    the district court prescribed in this case is foreclosed by the
    
    Voting Rights Act and by precedent.            The Department of Justice
    
    concedes this point,47 but contends, as does White, that the
    
    district court's final judgment is a "consent decree," and that, as
    
    such, the judgment could provide relief beyond that authorized by
    
    the Act.    We are not persuaded.
    
                                         A.
    
          First, the district court's final judgment is not a consent
    
    decree.    It is a final judgment, because it disposes of all of the
    
    
         46
          As noted in part I.E., supra, the plaintiffs' own experts
    testified at the August 31, 1994, hearing that the vote dilution
    they found in the at-large scheme could be remedied by having
    Alabama's appellate judges elected from single-member districts,
    without increasing the size of the courts. Hence, it was
    unnecessary for the court to increase the size of the appellate
    courts in order to grant the plaintiffs relief.
         47
          The White class does not join in the Department's
    concession.
    claims and defenses of all of the parties in the case.             See 28
    
    U.S.C. § 1291;     Andrews v. United States, 
    373 U.S. 334
    , 
    83 S. Ct. 1236
    , 
    10 L. Ed. 2d 383
     (1963).      But it is not a final consent decree,
    
    because not all of the parties consented to its entry.         White, the
    
    Attorney General, the Department of Justice, and the district court
    
    refer to the final judgment as a "consent decree."48 That, however,
    does not make it one.
    
         Here, the court entered a final judgment that rejected the
    
    relief    sought   by   some   parties,   Bradford   and   Montiel,49   and
    
         48
          The district court, in its memorandum opinion, appears to
    treat its final judgment as a consent decree. Nowhere in its
    opinion, however, does the court explain how a consent decree can
    be entered without the consent of all parties.
         49
          As noted in part I.C., supra, Bradford became a party on
    March 4, 1994, when the district court granted him leave to
    intervene as a plaintiff and to file a complaint. In that
    complaint, Bradford alleged that he represented a class
    consisting of all of Alabama's black voters, and asked the court
    to recognize him as the representative of such class. For
    relief, Bradford sought the election of Alabama's appellate
    judges from single-member districts. In contrast, White, in the
    settlement proposal he and the Attorney General had submitted to
    the court, sought the remedy the district court eventually
    imposed. Thus, the district court was faced with one plaintiff,
    Bradford, seeking one form of relief, and another plaintiff,
    White, seeking a dramatically different, and totally
    inconsistent, remedy. The court could have solved the dilemma by
    dividing the plaintiff class of black voters into two subclasses:
    one represented by White, the other by Bradford. The court,
    however, did nothing. Consequently, we are left with two
    plaintiffs seeking mutually exclusive forms of relief.
    
              Bradford, because he is a black voter, is by definition
         a member of the White class. No one has contended, however,
         that Bradford is thereby foreclosed from objecting to the
         relief White seeks or from pursuing an alternative remedy
         for the alleged vote dilution. Rather, White and the
         Attorney General, apparently deferring to the district
         court's decision to grant Bradford plaintiff status by
         permitting him to intervene and to file a complaint, have
         treated Bradford as an independent party in this litigation.
    
                Montiel became a party on May 17, 1994, and was
    incorporated the relief proposed jointly by other parties, White
    
    and the State.   In this circuit, a decree that provides a remedy
    
    agreed to by some, but not all, of the parties cannot affect the
    
    rights of a dissenting party.   United States v. City of Miami, 664
                                                                     
    50 F.2d 435
    , 442 (5th Cir.1981) (en banc) (opinion of Rubin, J.).
    Here, Bradford and Montiel are non-consenting dissenting parties.51
    
    Indeed, they vigorously objected to the remedy White and the
    
    
    
         certified to represent a plaintiff class of Republican
         voters. In addition to challenging the at-large election
         scheme, Montiel alleged that the White-Attorney General
         proposal, if implemented, would disenfranchise Alabama's
         republican voters. Like Bradford, Montiel sought the
         creation of single-member districts.
         50
          City of Miami, though decided after the split of the
    former Fifth Circuit, is part of the law of this circuit. See,
    e.g., Barfus v. City of Miami, 
    936 F.2d 1182
    , 1184 (11th
    Cir.1991).
         51
          Nor did Boehm, who had intervened in the case as a
    defendant representing a class of non-black voters, consent to
    the entry of the judgment. Boehm contended that the current
    at-large system for electing appellate judges was lawful and
    therefore should be maintained. Thus, his position was at odds
    with that taken by White and the Attorney General.
    
              After White and the Attorney General made their Rule 68
         filing on April 15, 1994, and in advance of the July 29
         fairness hearing, Boehm objected to their settlement
         proposal on the ground that the composition of the
         nominating commission ensured that only blacks would be
         appointed through the nominating process. According to
         Boehm, excluding "members of the "Boehm Class' [non-black
         voters] from the Judicial Nominating Commission not only
         violates the rights of the "Boehm Class' by not allowing
         them to participate in the selection of potential candidates
         for these appellate judges positions, but also prevents the
         "Boehm Class' from being able to adequately monitor the ...
         Commission for any discriminatory action they may take...."
         Record vol. 6, no. 128, at 5-6.
    
              Boehm has not appealed the district court's final
         judgment. During the oral argument of this case on appeal,
         his attorney announced that Boehm had no objection to the
         implementation of the judgment.
    Attorney General proposed because, among other things, it would
    
    deprive them of their right to vote for judicial officers.
    
                                            B.
    
         Assuming, for sake of argument, that the district court's
    
    judgment is a consent decree, we address the question whether, for
    
    that reason, the court had the authority to provide a remedy not
    
    authorized by the Voting Rights Act.           White and the Department of
    
    Justice cite only one case in support of the proposition that a
    
    district court, in entering a consent decree, may provide relief
    
    beyond that authorized by Congress.                    See    Local      No.   93,
    
    International Ass'n of Firefighters v. City of Cleveland, 
    478 U.S. 501
    , 
    106 S. Ct. 3063
    , 
    92 L. Ed. 2d 405
     (1986).            That case, however, is
    
    inapposite.
    
         In Local No. 93, the plaintiffs, an association of black and
    
    Hispanic firefighters employed by Cleveland's fire department,
    
    alleged that, in violation of Title VII of the Civil Rights Act of
    
    1964, various city officials had discriminated against its members
    
    on the basis of race and national origin in hiring, assigning, and
    
    promoting firefighters.         The city and the association entered into
    
    a settlement which, if approved by the court, would provide, among
    
    other things, prospective relief to unknown persons who had not
    
    suffered the alleged discrimination.              The firefighters' union
    
    intervened    in   the   case    for   the   purpose   of    objecting    to   the
    
    settlement.    It contended that Title VII barred the court from
    
    granting relief that benefitted individuals who were not actual
    
    victims of the discriminatory practices.           See Civil Rights Act of
    
    1964, Pub.L. No. 88-352, § 706(g)(2)(a), 78 Stat. 241, 261, 42
    U.S.C. § 2000e-5(g)(2)(a) (1988 & Supp. V 1993).
    
          The district court incorporated the settlement into a consent
    
    decree, and the union appealed.             The Sixth Circuit affirmed,
    
    Vanguards of Cleveland v. City of Cleveland, 
    753 F.2d 479
     (6th
    
    Cir.1985), and the Supreme Court granted certiorari, 
    474 U.S. 816
    ,
    
    
    106 S. Ct. 59
    , 
    88 L. Ed. 2d 48
     (1985), to answer the question:
    
    "whether § 706(g) of Title VII ... precludes the entry of a consent
    
    decree which provides relief that may benefit individuals who were
    
    not   the     actual   victims   of   the    defendant's    discriminatory
    
    practices."     Local No. 93, 478 U.S. at 504, 106 S.Ct. at 3066.
    
          Drawing on the language of section 706(g) and Title VII's
    
    legislative history, the Court concluded that the provision did not
    
    apply to the relief the district court granted.            Id. at 515, 106
    
    S.Ct. at 3071.    Moreover, the relief appeared to be in keeping with
    
    Title VII's remedial objectives and thus within statutory bounds.
    
    At the same time, the Court recognized that "the parties may [not]
    
    agree to take action that conflicts with or violates the statute
    
    upon which the complaint [is] based."          Id. at 526, 106 S.Ct. at
    
    3077.52     In the context of the case before it, the implementation
    
    of the agreement might deprive firefighters not before the court of
    
    their right not to be subjected to reverse racial discrimination in
    
    violation of Title VII or the Fourteenth Amendment.           In the event
    
    of such violation, the fact that the decree had been affirmed would
    
          52
          In cases where the Supreme Court has found that a consent
    decree violates the statute under which the relief is granted,
    the Court has not hesitated to set aside the decree. See
    Firefighters Local Union No. 1784 v. Stotts, 
    467 U.S. 561
    , 
    104 S. Ct. 2576
    , 
    81 L. Ed. 2d 483
     (1984); System Fed'n No. 91, Railway
    Employes' Dep't v. Wright, 
    364 U.S. 642
    , 
    81 S. Ct. 368
    , 
    5 L. Ed. 2d 349
     (1961).
    not render it "immune from attack."     Id.
    
         In the case at hand, unlike in Local No. 93, the injury is
    
    immediate.      The district court's decree, if implemented, will
    
    directly injure parties now before the court by depriving them of
    
    their right to vote.     Hence, there is no cause for this court to
    
    defer consideration of the question, which we reach in part II,
    
    supra, whether the decree's remedy is foreclosed by the Voting
    
    Rights Act.53
                                      V.
    
         We dismiss the appeal in No. 94-7081.    See supra note 34.   In
    
    No. 94-7024, we vacate the district court's judgment and remand the
    
    case to the three-judge court for further proceedings.    We remand
    
    the case to the three-judge court, rather than the single-judge
    
    district court, because this case is pending before the three-judge
    
         53
          The Court's opinion in Local No. 93 also informs our
    discussion in part IV.A, supra. One of the union's arguments was
    that the consent decree was invalid because it was entered
    without the union's consent. The Court rejected that argument
    because the union had presented no claim for relief to the
    district court; that is, it had no cause of action in its own
    right and it could not prosecute reverse discrimination claims
    (of its members) that had not yet arisen. The union's sole
    reason for intervening in the case, therefore, was to protest the
    settlement.
    
              The Court indicated that, had the settlement affected
         the union's rights, the decree could not have been entered
         without its consent. As the Court observed:
    
                 [P]arties who choose to resolve litigation through
                 settlement may not dispose of the claims of a third
                 party ... without that party's agreement. A court's
                 approval of a consent decree between some of the
                 parties therefore cannot dispose of the valid claims of
                 nonconsenting intervenors; if properly raised, these
                 claims remain and may be litigated by the intervenor.
    
         Local No. 93, 478 U.S. at 529, 106 S.Ct. at 3079 (citations
         omitted).
    court.     As indicated in part I.D. and note 25,               supra, that court
    
    stayed    further     proceedings    in    the   case     solely   to    permit    the
    
    district court, proceeding under section 2 of the Voting Rights
    
    Act, to entertain White's and the Attorney General's settlement
    
    agreement.     Now that their agreement has been set aside and the
    
    state's answer, which denies liability under both section 2 and
    
    section 5 of the Act (as well as the Equal Protection Clause),
    
    stands reinstated in full, see part I.B. and notes 14 and 15,
    
    supra. The case is in the posture it occupied when the three-judge
    
    court     stayed    its   hand.     Hence,   given       the   state's    denial    of
    
    liability, the first claim to be addressed—the claim before the
    
    three-judge        court—is   White's     section    5    claim:        whether    the
    
    legislative enactments cited in part I.A., supra, which increased
    
    the Supreme Court from seven to nine justices, divided the Court of
    
    Appeals into the courts of criminal and civil appeals, and then
    
    increased their respective sizes from three to five judges—are
    
    invalid for want of section 5 preclearance by the United States
    
    Department of Justice.54
    
    
         54
          Our disposition of the appeal in No. 94-7024 renders
    unnecessary our consideration of the question whether the remedy
    the district court fashioned, if implemented, would create a
    racial quota system for the selection of Alabama's appellate
    judges. It is also unnecessary for us to consider whether,
    consistent with Alabama's separation of powers doctrine and the
    state's constitution, the Attorney General had the authority
    under Alabama law to bind the legislature, the Governor, and the
    people of Alabama (in whom the power to amend the state's
    constitution resides) to the agreement he reached with White.
    See supra notes 1, 2, 6 and 29. Nor is it necessary for us to
    decide the related question whether, in the interest of comity,
    the district court, using Fed.R.Civ.P. 19 and 23, should have
    made the branches of the Alabama legislature and the Governor
    parties-defendant in this highly sensitive case. See 7A Wright,
    Miller & Kane, Federal Practice and Procedure § 1770.
         SO ORDERED.
    
         BLACK, Circuit Judge, specially concurring:
    
         I concur in the conclusion, stated in section IV.A of the
    
    majority opinion, that there was no valid consent decree upon which
    
    the district court could have entered its judgment.     I therefore
    
    concur in the result as well.   Since the district court's judgment
    
    must be vacated because it was premised on an invalid consent
    
    decree, our analysis should end at this point.
    
         The three-judge court granted Bradford and Montiel's motions
    
    to intervene in this suit as party plaintiffs, and the parties have
    
    not appealed these rulings.   Once a party intervenes, he becomes a
    
    full participant and is entitled to have his claims litigated.
    
    Alvarado v. J.C. Penney Co., 
    997 F.2d 803
    , 805 (10th Cir.1993);   7C
    
    Charles A. Wright, Arthur R. Miller & Mary K. Kane, Federal
    
    Practice and Procedure § 1920 (1986).    The original parties to a
    
    suit may not, through a purported consent decree settling the
    
    claims between them, stipulate away the rights of an intervening
    
    party without his approval.      Local Number 93, Int'l Ass'n of
    
    Firefighters v. City of Cleveland, 
    478 U.S. 501
    , 529, 
    106 S. Ct. 3063
    , 3079, 
    92 L. Ed. 2d 405
     (1986) (citing Wheeler v. American Home
    
    Products Corp., 
    563 F.2d 1233
    , 1237-38 (5th Cir.1977));    3B James
    
    W. Moore, Moore's Federal Practice ¶ 24.16[6] (2d ed. 1995).      It
    
    follows that a consent decree that compromises a non-consenting
    
    party's claims is invalid to the extent that it does so.   See Local
    
    Number 93, 478 U.S. at 529, 106 S.Ct. at 3079;     United States v.
    
    City of Miami, Fla., 
    664 F.2d 435
    , 442 (5th Cir.1981) (en banc)
    
    (Rubin, J.); League of United Latin American Citizens v. Clements,
    
    999 F.2d 831
    , 846 (5th Cir.1993) (en banc), cert. denied, --- U.S.
    
    ----, 
    114 S. Ct. 878
    , 
    127 L. Ed. 2d 74
     (1994).
    
         In the case before us, the settlement reached by the White
    
    class and the State of Alabama resolved the claims of Bradford and
    
    Montiel contrary to their interests and without their consent.
    
    Bradford and Montiel, however, were entitled as party plaintiffs to
    
    fully    litigate   their   claims.    They   did   not   receive   this
    
    opportunity.    The district court believed, erroneously, it had
    
    before it a valid consent decree;     and the court entered its final
    
    judgment based on the purported consent decree.      Since the consent
    
    decree was invalid1, the court could not enter a final consent
    
    judgment and we need not consider the substance of the invalid
    
    judgment.
    
    
    
    
         1
          The decree would also be invalid if, as maintained by the
    appellants, the state's attorney general did not have authority
    to negotiate the decree and bind the Alabama legislature,
    governor and populace to a plan that would alter state
    constitutional and statutory provisions.