The opinion
BELL, Circuit Judge
(concurring in part and dissenting in part):
Although I agree with the majority that this cause must be remanded, I would remand for an evidentiary hearing on the question of invidious discrimination vel non which, as I understand the law, is the sine qua non for finding a violation of the Equal Protection Clause in apportionment cases. See e. g., Dusch v. Davis, 1967, 387 U.S. 112, 116 , 87 S.Ct. 1554 , 18 L.Ed.2d 656 ; Reynolds v. Sims, 1964, 377 U.S. 533, 561 , 84 S.Ct. 1362 , 12 L.Ed.2d 506 . “The Equal Protection Clause does not, of course, require that the State never distinguish between citizens, but only that the distinctions that are made not be arbitrary or invidious.” Avery v. Midland County, 1968, 390 U.S. 474, at 484 , 88 S.Ct. 1114, at 1120 , 20 L.Ed.2d 45 .
This appeal is from a summary judgment upholding the districting plan for electing county commissioners in Dallas County. The implicit holding of the district court was that as a matter of law, there was no invidious discrimination in the plan. The majority of this court has found invidious discrimination as a matter of law. Because I find a fact issue for resolution in the district court, I respectfully dissent from the final determination in this court.
The invidious discrimination, if any, is against urban voters as a group — the residents of the City of Selma. There is no claim of racial discrimination. It is simply an urban versus rural resident question somewhat like that faced by the Supreme Court in Dusch v. Davis, supra. The districting plan there was upheld on facts which fell short of show *892 ing invidious discrimination. The ratio decidendi of the decision is that, given an at-large election, coupled with a district residential requirement for the candidates where the population of the districts vary widely, the constitutional test under the Equal Protection Clause nevertheless is whether there is invidious discrimination as a result of the inequality in population of the districts.
A substantial disparity from the one-man-one vote standard makes out invidious discrimination in the ordinary apportionment plan but we are here faced with an at-large plan where all voters of the county have a voice in the election of the candidates. The dilution, if any, in the vote of some residents depends on finding a group of voters who are treated differently from other groups. Having established the existence of such a group, here the voters of Selma, the next question is whether the difference, or the dilution in the terminology of the majority, reaches proportions of invidiousness.
As noted, Avery v. Midland County, supra, equates an invidious distinction between voters with arbitrariness, and appellants alleged that the Dallas County districting plan was arbitrary.
The record as now constituted shows a population disparity in the districting plan in question on an urban versus rural basis. Just under one-half of the residents in the county reside in the district comprising the City of Selma and they are allocated one commissioner for residence. There are three districts outside the city and each is allocated one commissioner for residence. Thus approximately one-half of the population residing outside Selma has three resident commissioners as against one for the other one-half residing in Selma. All four commissioners are elected at-large. But Dusch v. Davis, supra, teaches that disparity in the population of districts may be justified in an at-large election system.
It may be that taxes are not levied on citizens of Selma for expenditure in the rural areas to such a degree as would rise to the level of an invidious form of discrimination. It may be that the system can be justified in other ways. Much will depend on the structure and operation of the county government from the standpoint of taxes levied, expenditures made, and services rendered.
The majority opinion assumes invidious discrimination in the following statement:
“ . . . 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. Unlike the residents of Selma, the other voters in Dallas County can choose their proportional share of the representative body from among rural candidates who, by reason of their residence on rural areas, can be expected to share their interests.” P. 883.
This is disputed by the dissenting opinion; indeed, a strong argument is made that there is no discrimination at all against the citizens of Selma. I have examined the record in vain for a factual basis for either position.
My understanding of the judicial process is that constitutional rulings should not be anticipated. Ashwander v. Tennessee Valley Authority, 1936, 297 U.S. 288, 346-347 , 56 S.Ct. 466 , 80 L.Ed. 688 , J. Brandeis, concurring. Indeed, Art. Ill of the Constitution prevents our deciding questions in the abstract. Wef are not foreclosed from requiring a factual determination because of the district court’s view that only a question of law was presented. That view may well have been proper in ruling for the defendants on the authority of Davis v. Thomas County, 5 Cir., 1967, 380 F.2d 93 , now to be overruled by the majority. A decision by the district court for plaintiffs might well have *893 required an evidentiary hearing but it is enough to say that the case was not considered by the district court in that posture.
The sum of the majority opinion is to rule for plaintiffs on the one man-one vote standard despite Duseh v. Davis, supra, which holds that an at-large election with a district residential requirement superimposed thereon may accord with that standard even with substantial disparity in the population of the districts. The determination turns on the totality of the facts and not on a mechanical or arithmetical computation to determine a variation from the one man-one vote measurement.
I am not willing to decide the case for plaintiffs or defendants absent a resolution of the disputed facts which bear on the question of invidiousness. The pretrial order recites at least one such dispute under the heading “DISPUTED FACTS”, as follows:
“In their complaint, the plaintiffs allege: ‘That three (3) out of every four dollars collected by Dallas County in the last fiscal year were levied on and collected from the citizens of Selma, Alabama. Notwithstanding, the services offered by the County to the citizens of Selma are comparatively insubstantial and grossly discriminatory.’ This fact is disputed by the defendants.”
I would hold that the disparity appearing from the districting plan itself does make out a prima facie case of invidious discrimination. Aught else appearing, the Selma voters are entitled to have two of the four commissioners reside in Selma. The burden should be on defendants to overcome the prima facie case, if they can, by offering sufficient justification for the disparity. Within this framework, I suggest that the proper disposition of this cause is to vacate and remand with direction that it go forward to an evidentiary hearing.