The opinion
*191 RONALD N. DAVIES,
District Judge (dissenting).
I am in total agreement with the majority of this Court in holding that Sections 26, 29 and 35 of Article II of the Constitution of the State of North Dakota, as amended by the electorate June 28, 1960, and Section 54-03-01, North Dakota Century Code, as amended, are unconstitutional and violative of the Equal Protection Clause of the Fourteenth Amendment to the Constitution of the United States.
I am in total disagreement with the majority in their action permitting a de facto 1 Legislative Assembly to meet, legislate and attempt to enact a reapportionment law in 1965.
In Lein v. Sathre, D.C. 205 F.Supp. 536 , (1962), a case in which the Plaintiffs attacked the apportionment in the North Dakota House of Representatives and which was heard by this same Court, in dissenting from the majority opinion I said:
“The Plaintiffs have twice sought affirmative relief in this Court. In my view they are entitled to it here and now. I decline to speculate whether the 1963 Legislative Assembly will fulfill its mandatory obligation to reapportion in such manner as will approach as nearly as is possible a mathematical equality. I would wait no longer upon the vagaries of the future.”
The fact is, and all members of this Court now agree, that the action taken by the 1963 Legislature is invalid and a nullity. Once more, in the case now before us, I decline to speculate on what the 1965 Legislative Assembly will do with respect to legal reapportionment of the Senate and House. I know only that in 1963 the Assembly failed to enact a valid reapportionment law as it affects the House of Representatives.
The Equal Protection Clause of the Constitution of the United States cannot' and does not protect the constitutional rights of these Plaintiffs in the General Election of 1964 and in the deliberation of the 1965 Legislative Assembly under the holding of the majority of this Court in this case.
It is true, as the majority opinion points out, that the United States Supreme Court has found it inappropriate to discuss questions relating to remedies beyond which that Court expressed itself in Reynolds v. Sims, 84 S.Ct. 1362, 1393 , but the Court did say in Reynolds that “It is enough to say now that, once a State’s legislative apportionment scheme has been found to be unconstitutional, it would be the unusual case in which a court would be justified in not talcing appropriate action to insure that no further elections are conducted under the invalid plan. * * * ” (Emphasis supplied).
The case before us is neither so unusual nor so novel as to justify permitting the 1964 elections under the concededly unconstitutional apportionment laws of North Dakota. We are not wholly inexperienced in reapportionment litigation.
The Supreme Court of the United States has carefully charted the course for us in this type of case, leaving it to us to implement their teachings in the light of equitable considerations. That the disruption of the regular election machinery would be a hardship and entail additional expense, I am well aware. But what of the rights of those before us who seek relief?
I believe that the equities here are clearly with these Plaintiffs. For nearly a quarter of a century their voting rights and those similarly situated have been *192 'diluted and decimated. Permitting elections to the North Dakota Senate and House in the General Election of 1964, as now scheduled, means two more years of obvious unequal representation, two more years of taxation with partial representation, and two more years of a delayed remedy which I cannot in good conscience justify.
I am also well aware of the political thicket into which we are plunged, but we must, I think, be ever mindful of our obligations in a justiciable controversy involving the constitutional rights of ■citizens of a sovereign state and nation.
The Plaintiffs here are entitled to the injunctive relief which they seek and this Court should, in my opinion, proceed promptly to enter its own order temporarily reapportioning the Senate and House, causing elections to be held thereunder and retaining jurisdiction in order that, if the new Legislative Assembly did not permanently reapportion in accordance with the decisional law as enunciated by the Supreme Court of the United States, the Plaintiffs here would be in position promptly to seek appropriate relief from this Court.
I dissent.
. He facto. In fact, indeed, actually. This phrase is used to characterize an officer, a government, a past action, or a state of affairs which must be accepted for all practical purposes, but is illegal or illegitimate. In this sense it is the contrary of (Ze jure which means rightful, legitimate, just, or constitutional. Black’s Law Dictionary, Fourth Edition.