The opinion
RYAN, District Judge
(concurring).
This suit seeks to invoke the “equal protection” clause of the Fourteenth Amendment to the United States Constitution.
Plaintiffs allege that Article III (Sections 2-5) of the New York Constitution, which designates the method of geographic apportionment of Senators and Assemblymen to be elected to the State Legislature, is unconstitutional because it discriminates against the urban residents of the state and, therefore, conflicts with the “equal protection” clause.
We do not find that “invidious discrimination” exists or that it is impossible to change the State Constitution by a non-judicial means.
In the Supreme Court’s remand of this case, the per curiam opinion stated:
“ * * * we held in Baker v. Carr, 369 U.S. 186 , [ 82 S.Ct. 691 ], that a justiciable federal constitutional cause of action is stated by a claim of arbitrary impairment of votes by means of invidiously discriminatory geographic classification.”
In the majority opinion of Baker v. Carr, Justice Brennan stated:
“ * * * it [is] open to courts * * * to determine * * * that a discrimination reflects no policy, but simply arbitrary and capricious action.”
“Invidious discrimination” is an irrational and inconstant action against a group of citizens. We do not find that the New York State apportionment policy is irrational; all that plaintiffs have illustrated is that the apportionment is not’ based solely on population. But as was said in MacDougall v. Green, 335 U.S. 281, 283 , 69 S.Ct. 1, 2 ,
“To assume that political power is a function exclusively of numbers is *385 to disregard the practicalities of government.”
There are other criteria for' determining apportionment besides population. In Baker v. Carr, Justice Harlan said:
“Nothing in the Federal Constitution [stops] a State * * * from choosing any electoral legislative structure it thinks is best suited to the interests, temper, and customs of its people. * * * ”
Such factors as the interests of counties, geography, and concentration of political power, may also be considered. The six plaintiff counties contain 56.2% of the state’s population, but they contain only 3.1% of its area. (P. 23 Opening Memorandum for Defendants — Be fore the Statutory Court On Remand from The Supreme Court of the United States.) If apportionment were based solely on population, this would mean that 3% of the state’s area would dominate the rest of New York. Even if the urban representatives were to sincerely endeavor to care for the interests of the state as a whole, it is unlikely that they might be able to fully understand the problems of the remaining vast area of the state. Each rural member of the Legislature presently represents a much greater area than his urban counterpart. If population were to be made the sole criterion of apportionment, the area per representative in certain districts would increase even further. Representatives might not adequately represent localities which were not their home and, correspondingly, the residents of these localities might lose the benefits of the democratic governmental process.
Besides this absence of “invidious discrimination”, the New York State Constitution provides that the question “Shall there be a convention to revise the constitution and amend the same?” shall be put before the people every twentieth year. (Article XIX, Section 2.) In 1957, a majority voted “No” to this question even though a majority of those voting came from the urban areas. This seems to indicate that most of the voting citizens of New York are satisfied with the current system.
The situation in New York is different than in other states where the Court, in granting the relief requested, stated that one of the prime reasons was that there was no remedy within the electorate. Toombs v. Fortson, D.C., Georgia, 205 F.Supp. 248 .
We concur in the findings of fact and conclusions of law reached by Judge LEVET; we conclude that this Court has jurisdiction over the subject matter of the suit and this jurisdiction has been exercised and, after trial and examination of the statutes involved and of the undisputed facts, we conclude that the complaint herein should be dismissed upon its merits.