George Wallace, Sr. v. J. P. House, Individually and as Registrar of Voters of Concordia Parish, Louisiana, L. W. Davis, Etc.

RONEY, Circuit Judge

(specially concurring).

The appellants conceded before this Court that the all-at-large election scheme was unconstitutional. It seems to me that we should start with that concession and that we are relieved of any judicial necessity to decide the correctness of the district court’s decision in this regard. I would not voice an opinion one way or the other, then, as to the validity of the all-at-large election scheme in this town of 5,200 people.

With that concession, the only issue for us to decide is whether the appellant town’s mixed single-member-at-large-member electoral system is constitutional such to make erroneous the district court’s ordered implementation of appel-lee’s all-single-member plan. I fully concur in the decision that the Board of Aldermen’s plan is constitutional and in Judge Goldberg’s thorough and well-reasoned opinion dealing with this issue.

With respect to the district court’s award of attorney’s fees, I would vacate and remand for reconsideration by the district court in light of two factors: the demise of the private attorney general rationale in Alyeska Pipeline Service Co. v. Wilderness Society, - U.S. -, 95 S.Ct. 1612 , 44 L.Ed.2d 141 (1975), and our decision here that the Board of Aldermen’s plan submitted to the district court is constitutional.

First, it is impossible to tell to what extent the district court’s reliance on the attorney general rationale may have permeated its finding that bad faith likewise supported the attorney’s fee award. The award of attorney’s fees should be reconsidered by the district court on the issue of bad faith alone.

Second, the district court had decided that the plan proffered by the town was unconstitutional when it found that “the *639 Board of Aldermen’s steadfast adherence to a constitutionally unacceptable plan during the course of this litigation would amount to bad faith.” 377 F.Supp. at 1206. The issue of bad faith should be reconsidered in light of the fact that, having lost its defense of the all-at-large plan, the Board did submit a constitutionally acceptable plan to the district court. It is for the district court to decide whether, in light of this fact, there was “steadfast adherence to a constitutionally unacceptable plan.”

The town briefed on appeal the issue as to the district court’s finding that the all-at-large plan was unconstitutional, but then conceded the point on oral argument. All of these facts should be remanded to the district court to reconsider anew the issue of bad faith. I would not indicate one way or the other which way that issue should be resolved.