The opinion
COLEMAN, Circuit Judge
(dissenting) with whom GEWIN, DYER, SIMPSON, CLARK and RONEY, Circuit Judges, join.
I regret that I must respectfully dissent.
A majority of the Court today holds, as I understand its opinion, that the statutory scheme for the election of county commissioners in Dallas County, Alabama, is prima facie unconstitutional, although the opinion admits, “It is undisputed that the votes cast in Dallas County elections are of equal weight. Each voter can vote for four candidates, and the election is countywide”.
The record is totally bereft of any discrimination on the basis of race, creed, or other personal status, either individually or as a group.
Every commissioner, regardless of his place of residence, is answerable to every voter in the entire county, including the voters residing in Selma. While the record fails to reflect the voting strength of Selma as contrasted to the remainder of the county, it is pointed out that Selma contains approximately half the population of the county. It *889 goes against human experience to hold as a matter of law, I think, that any commissioner residing in the rural area and answerable to the county as a whole would likely consider that his chances of retention in elective office would be enhanced by either neglecting or ignoring the best interests of Selma voters.
Therefore, I cannot agree with the language of the opinion which states [Page 883] that, “It is to be expected that commissioners who are elected from rural subdistricts will give greater priority to needs of the subdistricts in which they reside than to the interests of the City of Selma”.
This case is before us on appeal from summary judgment and there is no evidence to support that statement.
I think the voters of Selma are getting better than equal treatment.
An examination of Title 12 [Counties] of the Code of Alabama indicates that the commissioners, along with the judge of probate, who is elected at-large as a general county official, have jurisdiction over county roads, bridges, and stock law districts, whereas they have no jurisdiction over the streets of Selma. The commissioners direct and control the property of the county, such as the courthouse. Within statutory limits they levy taxes for county purposes. They appropriate the money required for the maintenance of general county functions. They administer the liquidation of county bonded debt. They are required to publish semi-annually an itemized report of the receipts and expenditures of the county.
The governing authorities of Selma control similar functions within the corporate limits of that city. Citizens residing outside the corporate limits of Selma have no vote for officials or on other public issues in the city of Selma.
Yet, the citizens of Selma have a vote as to each and every commissioner of the entire county, including areas outside the city. Except for the levying of county taxes and expending county funds, the commissioners appear to perform very few functions of particular interest to the residents of Selma. Nevertheless, each and every commissioner on election day must submit to being weighed in the Selma scales, but the governing authorities of Selma do not have to go before the people of the county.
This is not a White v. Regester case. There the District Court found that ethnic minorities who were also a minority of the total population “had less opportunity than did other residents in the district to participate in the political processes and to elect legislators of their choice.” The Supreme Court affirmed, upon consideration of the totality of the circumstances. There is nothing to indicate in the instant case that Selma voters have any less opportunity than do county residents to participate in the political processes or to elect commissioners of their own choice. Such rights do not include the right to be elected to office or to have a neighbor elected.
I offer the further thought that the “factual” conclusions of the majority are wholly hypothetical. I think the Supreme Court decisions require proof of “a real-life impact”, Whitcomb v. Chavis, 403 U.S. 124 , 91 S.Ct. 1858 , 29 L.Ed.2d 363 (1971). In Chavis , the Supreme Court said, “The real-life impact of multi-member districts on individual voting power has not been sufficiently demonstrated, at least on this record, to warrant departure from prior cases”, Id. at 146 , 91 S.Ct. at 1870 .
I would therefore adhere to the teachings of the Supreme Court in Dusch v. Davis, 387 U.S. 112 , 87 S.Ct. 1554 , 18 L.Ed.2d 656 (1967), which, in the absence of distinction on the basis of race, creed, economic status, or location, held: *890 upholding a residence requirement for the election of state senators from a multi-district county we said in Fortson v. Dorsey, 379 U.S. 433, 438 , 85 S.Ct. 498, 501 , 13 L.Ed.2d 401 , 404:
*889 “The Seven-Four Plan makes no distinction on the basis of race creed, or economic status or location. Each of the 11 councilmen is elected by a vote of all the electors in the city. The fact that each of the seven councilmen must be a resident of the borough from which he is elected, is not fatal. In
*890 ‘It is not accurate to treat a senator from a multi-district county as the representative of only that district within the county wherein he resides. The statute uses districts in multi-dis-trict counties merely as the basis of residence for candidates, not for voting or representation. Each district’s senator must be a resident of that district, but since his tenure depends upon the county-wide electorate he must be vigilant to serve the interests of all the people in the county, and not merely those of people in his home district; thus, in fact he is the county’s and not merely the district’s senator.’
“By analogy the present consolidation plan uses boroughs in the city ‘merely as the basis of residence for candidates, not for voting or representation.’ He is nonetheless the city’s, not the borough’s, councilman. In Fort-son there was substantial equality of population in the senatorial districts, while here the population of the boroughs varies widely. If a borough’s resident on the council represented in fact only the borough, residence being only a front, different conclusions might follow. But on the assumption that Reynolds v. Sims controls, the constitutional test under the Equal Protection Clause is whether there is an ‘invidious’ discrimination.” ( 387 U.S. at page 115 , 87 S.Ct. at page 1556 , 18 L.Ed.2d at page 659 )
With, deference, nothing in this case justifies an effort to undermine the teachings of Dusch . I therefore respectfully dissent.
Separate Opinion of COLEMAN, Circuit Judge.
Since I wrote the dissenting opinion in which Judges Gewin, Dyer, Simpson, Clark, and Roney joined, the majority opinion has been amended (as the majority had a right to do) by including in Footnote 9 a reference to Lytle v. Commissioners of Election of Union County, 4 Cir., 1974, 509 F.2d 1049 [No. 74-1619, June 17, 1974], The author of the majority opinion has graciously delayed its release to give me an opportunity to file this separate opinion, which I have not circulated to the other Judges for possible concurrences as I am reluctant to cause any further delay in the release of the en banc opinion.
Lytle v. Commissioners of Election, supra, was consolidated and decided with McCain v. Lybrand in the Fourth Circuit. Both cases, of course, had common issues. Lytle was concerned with the election of the Board of Control in Union County, South Carolina. Lybrand involved similar elections in Edgefield County. In both counties the members of the Board of Control were elected at large but each member had to reside in separate fixed districts of the county. The District Court had invalidated the system in both counties. The Fourth Circuit [Judges Craven, Russell, and Field] affirmed as to Union but reversed as to Edgefield. The unsuccessful appellees in Edgefield sought certio-rari. On November 25, 1974, the Supreme Court denied review, McCain v. Lybrand, - U.S. -, 95 S.Ct. 515 , 42 L.Ed.2d 308 [No. 74-278, 43 USLW 3303 ]. I have not had an opportunity to see the petition as filed in the Supreme Court but the point as recited in USLW reads as follows:
“County officials elected at large may validly be required to reside in separate fixed districts of county, even though districts have wide population variances; attempt through residency requirement to strike balance between interests of rural and urban areas in county, provided voting rights for both areas are protected by at-large elections, meets ‘rational’ test; county plan represents proper balancing of rural-urban interests and is without such population variances among districts as to require deletion *891 of residency requirements on constitutional grounds.”
In Union County, the urban area composed 58% of the population but only one member of the eight man board was required to reside in that area. It was pointed out that Union District (the urban area) had 17,127 people, Goshen Hill, had 561. Each had a residential member of the Board. There were no floating members as in Dusch .
This was held invalid, but the Court was careful to point out that “to strike down completely all residential requirements would mean that the urban area of Union could completely dominate and control the Board, leaving the rural areas of the county without any representative to voice their peculiar and unique territorial interests”. In decreeing transitional relief the District Court was directed to avoid such a result, saying that while awaiting a new Act of the Legislature,
“The remedy adopted should be one that recognizes and gives proper effect to the population variances among the districts as well as the economic differences among them. It was the virtue of the Dusch plan that it did exactly that.”
No figures are cited in the opinion as to Edgefield County, but it is said that “There is not the wide disparity of population among the districts as was the case in Union County. It is not obvious that a minority, either in numbers or interritorial or economic interest, can dominate the Board”.
The Edgefield case is the one on which the Supreme Court denied certio-rari.
I think the Fourth Circuit opinion in Lytle and Lybrand contains a valuable analysis of the problem we have encountered in Dallas County. Assuming that this case is, as ordered, to go back to the District Court to “fashion relief”, I suggest that it could very advantageously look carefully to the teachings of Lytle and Lybrand.
Since the Dallas County system reveals no such glaring disparities as appeared in Union County, and not now knowing the figures as to Edgefield, I adhere to my original dissent.