
249 F.Supp. 877 (1965)
Renn DRUM, Jr., on Behalf of Himself and All Others Similarly Situated, Plaintiff,
v.
Malcolm B. SEAWELL, Chairman of the North Carolina State Board of Elections, John G. Clark, Mrs. Robert W. Proctor, Hiram H. Ward, and Paul Osborne, Members of the North Carolina State Board of Elections, Defendants,
and
D. S. Swain, Jr., Plaintiff-Intervenor.
No. C-168-WS-65.
United States District Court M. D. North Carolina, Winston-Salem Division.
November 30, 1965.
*878 G. Ray Motsinger, Winston-Salem, N. C., for plaintiff.
T. Wade Bruton, Atty. Gen. of North Carolina, James F. Bullock, Asst. Atty. Gen., Raleigh, N. C., and H. S. Merrell and Thomas L. Young, Rocky Mount, N. C., for defendants.
*879 John A. Wilkinson and James R. Vosburgh, Washington, N. C., for plaintiff-intervenor.
R. Mayne Albright, Raleigh, N. C., Charles F. Lambeth, Jr., Thomasville, N. C., James Mattocks, High Point, N. C., McNeill Smith, Greensboro, N. C., Ralph M. Stockton, Jr., Winston-Salem, N. C., William L. Thorp, Jr., Rocky Mount, N. C., and Joseph W. Grier, Jr., Charlotte, N. C., for North Carolina Chapter American Civil Liberties Union, amicus curiae.
Before J. SPENCER BELL, Circuit Judge, and EDWIN M. STANLEY and ALGERNON L. BUTLER, District Judges.
J. SPENCER BELL, Circuit Judge:
This action is brought by the plaintiff, Renn Drum, Jr., a citizen of North Carolina and a registered voter, on behalf of himself and others similarly situated against the Chairman and members of the North Carolina Board of Elections. He alleges invidious discrimination against himself and others so situated in the manner in which the State has been apportioned for the election of members of the two Houses of the State Legislature and of the United States House of Representatives. The action seeks a declaratory judgment holding Article II, Sections 5 and 6, of the North Carolina Constitution and the Acts apportioning the State to be unconstitutional and an injunction forbidding further elections until the Legislature shall properly apportion and if the Legislature fails properly to apportion within a specified time, that the court then do so itself. During the pendency of the action, D. S. Swain, Jr., moved for leave to file a complaint in intervention for the purpose of seeking an injunction against the holding of a special primary and election to fill a vacancy existing in the First Congressional District. The intervention was allowed.
The parties to the action have stipulated the facts with respect to the geographical areas, the population and the representation of each of the districts and counties into which the State is divided for the purposes of electing State Senators and Representatives and United States Representatives. The court finds the facts to be as stipulated with respect to these statistics and data, copies of which are appended.
The defendants concede that the complaint states a cause of action. Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962); 42 U.S.C. §§ 1983 and 1988; U.S.Const. Amend. XIV. Jurisdiction is vested in this court under 28 U.S.C. § 1343(3) and the declaratory judgment act, 28 U.S.C. § 2201.
In Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964), the Supreme Court laid down guide lines to assist the lower courts in implementing the constitutional guaranties of suffrage. The Equal Protection Clause requires substantially equal representation for all citizens in a state in each of the two Houses of a state bicameral Legislature. This right may not be debased by weighing votes differently according to where a citizen happens to reside. Representation in state legislative bodies must be, as nearly as practicable, apportioned on districts of equal population though mechanical exactness is not required. Political subdivisions may be recognized but not at the cost of substantial equality among the several districts. Considerations of history, economic or other group interests or area alone do not justify substantial deviations from the equal population concept. Nor will the presence of large numbers of military and military related personnel justify the under-representation of an area. "Discrimination against a class of individuals, merely because of the nature of their employment, without more being shown, is constitutionally impermissible." Davis v. Mann, 377 U.S. 678, 691, 84 S.Ct. 1441, 1448, 12 L.Ed.2d 609 (1964).
The court, while rejecting a rigid application of a mathematical formula, has laid down two statistical tests in evaluating the State's "honest and good faith *880 effort to construct districts, * * * as nearly of equal population as is practicable." First, the minimum controling percentage; i. e., the percentage of the State's population which resides in the least populous districts which can elect a majority of each House; and second, the population variance ratio; i. e., the ratio between the most populous district and the least populous district of the State.
We turn to the congressional districting of the State. There are eleven districts and the proportional representation per district is 414,196 persons. We note that six of the eleven districts vary from the average by more than 10 per cent; four by more than 15 per cent, and only two districts are within 5 per cent of the average. The smallest district in population (the first) contains 136,335 less than the average while the largest (the eighth) contains 77,265 more than the average. No valid explanation is offered to justify these glaring discrepancies, if indeed they could be justified. We agree with the statement in the Amicus brief that the minimum controlling percentage is not significant. We are concerned with the population variance ratio of 1.8 to 1. Such a variance cannot be justified. In Wesberry v. Sanders, 376 U.S. 1, 84 S.Ct. 526, 11 L.Ed.2d 481 (1964), the Court said:
"We hold that, construed in its historical context, the command of Art. I, § 2, that Representatives be chosen `by the People of the several States' means that as nearly as is practicable one man's vote in a congressional election is to be worth as much as another's."
Because of the unconstitutionally discriminatory apportionment embodied therein, we hold the statute (N.C.G.S. § 163-103) creating the several districts for the purpose of selecting representatives to the Congress of the United States to be null and void.
The Constitution of North Carolina (Art. II, §§ 5 and 6) provides that the House of Representatives shall consist of 120 members and that each of the State's counties shall have at least one representative "although it may not contain the requisite ratio of representation." The remaining 20 are to be divided among the more populous counties. The House is now apportioned in accordance with this requirement. The proportional representation in the House is one member per 37,968 persons. The member from Wayne County has 82,059 constitutents and the member from Tyrrell 4,520. A population variance of 18.2 to 1. Sixty-one of the least populous counties having a population of 1,234,325 can elect a majority of the House. Thus the minimum controlling percentage is 27.1%. These variances are too great to be acceptable. Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964); Lucas v. Forty-Fourth General Assembly, 377 U.S. 713, 84 S.Ct. 1459, 12 L.Ed.2d 632 (1964); Davis v. Mann, 377 U.S. 678, 84 S.Ct. 1441, 12 L.Ed.2d 609 (1964); Harris v. Anderson, 194 Kan. 302, 400 P.2d 25, cert. denied, 382 U.S. 894, 86 S.Ct. 185, 15 L.Ed.2d 150. We cannot accept the State's argument that this formula has been in the Constitution since 1836 and that the State re-entered the Union with the formula in effect. Reynolds v. Sims, supra. We note, however, that when the formula originally took effect the State had 65 counties, leaving 55 memberships in the House to be apportioned. Today with 100 counties only 1/6 of the House remains to be apportioned among the most populous counties. North Carolina has no provisions for initiative and referendum; its Governor has no veto power, thus the people of the State have no practical means by which to rectify an imbalance of representation in one of the most powerful legislative bodies in America.
We hold that the provisions of the State Constitution requiring that each county be afforded at least one Representative regardless of its population and the implementing statute (N.C.G.S. § 120-2) to be in violation of the Equal Protection provisions of the Fourteenth Amendment and therefore null and void.
*881 The North Carolina Constitution, Article II, Section 4, requires the General Assembly to alter the senatorial districts after the return of every census so that each district, as nearly as may be, shall have an equal number of inhabitants. Pursuant to this mandate, the 1963 Act (N.C.G.S. § 120-1) apportioned the fifty Senators among 36 districts of the State. An examination of the evidence shows that each of the fifty Senators should ideally represent 91,123 persons; that the smallest district in terms of population contains 65,722 persons and the three largest, respectively, 123,260, 127,074, and 148,418. We note that the minimum controlling percentage is 47.1 and the population variance ratio 2.3 to 1.
We note that every one of the counties in the five most overrepresented senatorial districts is also overrepresented in the House and that the seven most over-represented counties in the House are included in the three most overrepresented senatorial districts.
While we note that the apportionment of the Senate is far more nearly equitable than that of the House, we may not validate either body in the abstract since it must be considered in relation to the other branch of the legislative body as it is finally apportioned.
"* * * the proper, and indeed indispensable subject for judicial focus in a legislative apportionment controversy is the overall representation accorded to the State's voters, in both houses of a bicameral state legislature." Maryland Committee for Fair Representation v. Tawes, 377 U.S. 656, 673, 84 S.Ct. 1429, 1439, 12 L.Ed.2d 595 (1964).
We hold that the apportionment of the Senate as it now exists is not sufficiently grounded on population to be constitutionally sustainable. N.C.G.S. § 120-1 is therefore held to be null and void. Lucas v. Fourth General Assembly of State of Colo., 377 U.S. 713, 84 S.Ct. 1459, 12 L.Ed.2d 632 (1964). Counsel for the State has urged this court to furnish in its opinion as much guidance as possible to the Legislature, should we find it necessary to require reapportionment. In conformity with this request we point out that the variance ratio between the three highest districts and the remainder of the State is on its face unjustifiable in the light of the fact that the remainder of the State could be apportioned on a population variance of only 1.3 to 1. The obligation of the State is to apportion as nearly equally as possible on a population based representation, and even minor deviations must be free from any taint of arbitrariness or discrimination. Roman v. Sincock, 377 U.S. 695, 84 S.Ct. 1449, 12 L.Ed.2d 620 (1964).
The plaintiff having proven his charge of discrimination on the basis of population by evidence to which the parties have stipulated, the burden was placed upon the defendants to justify the variations from this standard which were shown to exist. The defendants have failed to meet this burden and we are forced to the conclusion that the plaintiff and those in his class are entitled to relief. Mann v. Davis, 213 F.Supp. 577, 584 (E.D.Va.1962). We will enter a judgment declaring the invalidity of the pertinent State constitutional and statutory provisions.
We cannot allow the regularly scheduled 1966 primaries and elections to proceed under laws now held to be invalid. We recognize, however, that it is fit and proper that the Legislature of this State should be given an opportunity to rectify the inequities which exist before this court should undertake to do so. Ample time now exists before the primary scheduled for May 28, 1966, for the Governor to call a special session of the Legislature. We will, therefore, stay the mandate of our injunction until January 31, 1966, in order that such a session may be convened. If apportionment compatible to constitutional standards cannot be achieved by that date this court will regretfully undertake to fashion a scheme of apportionment which will permit the 1966 primaries and elections to proceed on a just and equitable basis. We think that the right of the people of the First Congressional District to be represented *882 in the Congress during the interval which must intervene while adequate consideration is given to a statewide reapportionment of our Congressional representation requires us to decline to interfere with the special election which has been called to fill the vacancy in that District.
Jurisdiction in this matter is retained.
An order will be entered in accordance herewith.


                           APPENDIX TO OPINION
                     CONGRESSIONAL DISTRICTS  11
Proportional Representation Per District =
           4,556,155                       Minimum Controlling Percentage - 48.6
           --------- = 414,196             Population Variance Ratio - 1.8 to 1
              11
                        Percent of     Population           Population
           Population    State's      Shortage for          Excess for         Percent of
              in          Total        Apportioned          Apportioned      Over   or Under
District    District    Population    Representation       Representation     Representation
 No. 1      277,861        6.099         136,335                                  + 32.9
 No. 2      350,135        7.685          64,061                                  + 15.5
 No. 3      430,360        9.446                             16,164               -  3.9
 No. 4      460,795       10.114                             46,599               - 11.3
 No. 5      454,261        9.970                             40,065               -  9.7
 No. 6      487,159       10.692                             72,963               - 17.6
 No. 7      448,933        9.853                             34,737               -  8.4
 No. 8      491,461       10.787                             77,265               - 18.7
 No. 9      404,093        8.869          10,103                                  +  2.4
 No. 10     390,020        8.560          24,176                                  +  5.8
 No. 11     361,077        7.925          53,119                                  + 12.8
          HOUSE OF REPRESENTATIVES - 100 COUNTIES WITH 120
                            MEMBERS
Proportional Representation Per Member =
          4,556.155                      Minimum Controlling Percentage - 27.1
          --------- = 37,968             Population Variance Ratio - 18.2 to 1
             120
                           Number of       Population         Population Change to
                        Representatives  Per Apportioned    Give Equal Representation
County      Population    in House        Representative      Shortage    Excess
Alamance      85,674          2              42,837                        4,869
Alexander     15,625          1              15,625            22,343
Alleghany      7,734          1               7,734            30,234
Anson         24,962          1              24,962            13,006
Ashe          19,768          1              19,768            18,200
Avery         12,009          1              12,009            25,959
Beaufort      36,014          1              36,014             1,954



*883
                       Number of       Population         Population Change to
                      Representatives Per Apportioned   Give Equal Representation
County     Population   in House       Representative   Shortage    Excess
Bertie       24,350         1              24,350        13,618
Bladen       28,881         1              28,881         9,087
Brunswick    20,278         1              20,278        17,690
Buncombe    130,074         2              65,037                   27,069
Burke        52,701         1              52,701                   14,733
Cabarrus     68,137         1              68,137                   30,169
Caldwell     49,552         1              49,552                   11,584
Camden        5,598         1               5,598        32,370
Carteret     30,940         1              30,940         7,028
Caswell      19,912         1              19,912        18,056
Catawba      73,191         1              73,191                   35,223
Chatham      26,785         1              26,785        11,183
Cherokee     16,335         1              16,335        21,633
Chowan       11,729         1              11,729        26,239
Clay          5,526         1               5,526        32,442
Cleveland    66,048         1              66,048                   28,080
Columbus     48,973         1              48,973                   11,005
Craven       58,773         1              58,773                   20,805
Cumberland  148,418         3              49,473                   11,505
Currituck     6,601         1               6,601        31,367
Dare          5,935         1               5,935        32,033
Davidson     79,493         1              79,493                   41,525
Davie        16,728         1              16,728        21,240
Duplin       40,270         1              40,270                    2,302
Durham      111,995         2              55,998                   18,030
Edgecombe    54,226         1              54,226                   16,258
Forsyth     189,428         3              63,143                   25,175
Franklin     28,755         1              28,755         9,213
Gaston      127,074         2              63,537                   25,569
Gates         9,254         1               9,254        28,714
Graham        6,432         1               6,432        31,536
Granville    33,110         1              33,110         4,858
Greene       16,741         1              16,741        21,227
Guilford    246,520         4              61,630                   23,662
Halifax      58,956         1              58,956                   20,988
Harnett      48,236         1              48,236                   10,268
Haywood      39,711         1              39,711                    1,743
Henderson    36,163         1              36,163         1,805
Hertford     22,718         1              22,718        15,250
Hoke         16,356         1              16,356        21,612
Hyde          5,765         1               5,765        32,203
Iredell      62,526         1              62,526                   24,558
Jackson      17,780         1              17,780        20,188
Johnston     62,936         1              62,936                   24,968
Jones        11,005         1              11,005        26,963
Lee          26,561         1              26,561        11,407
Lenoir       55,276         1              55,276                   17,308
Lincoln      28,814         1              28,814         9,154



*884
                           Number of       Population       Population Change to
                          Representatives Per Apportioned Give Equal Representation
County         Population   in House       Representative   Shortage    Excess
McDowell         26,742         1              26,742        11,226
Macon            14,935         1              14,935        23,033
Madison          17,217         1              17,217        20,751
Martin           27,139         1              27,139        10,829
Mecklenburg     272,111         5              54,422                   16,454
Mitchell         13,906         1              13,906        24,062
Montgomery       18,408         1              18,408        19,560
Moore            36,733         1              36,733         1,235
Nash             61,002         1              61,002                   23,034
New Hanover      71,742         1              71,742                   33,774
Northampton      26,811         1              26,811        11,157
Onslow           82,706         2              41,353                    3,385
Orange           42,970         1              42,970                    5,002
Pamlico           9,850         1               9,850        28,118
Pasquotank       25,630         1              25,630        12,338
Pender           18,508         1              18,508        19,460
Perquimans        9,178         1               9,178        28,790
Person           26,394         1              26,394        11,574
Pitt             69,942         1              69,942                   31,974
Polk             11,395         1              11,395        26,573
Randolph         61,497         1              61,497                   23,529
Richmond         39,202         1              39,202                    1,234
Robeson          89,102         2              44,551                    6,583
Rockingham       69,629         1              69,629                   31,661
Rowan            82,817         2              41,408                    3,440
Rutherford       45,091         1              45,091                    7,123
Sampson          48,013         1              48,013                   10,045
Scotland         25,183         1              25,183        12,785
Stanly           40,873         1              40,873                    2,905
Stokes           22,314         1              22,314        15,654
Surry            48,205         1              48,205                   10,237
Swain             8,387         1               8,387        29,581
Transylvania     16,372         1              16,372        21,596
Tyrrell           4,520         1               4,520        33,448
Union            44,670         1              44,670                    6,702
Vance            32,002         1              32,002         5,966
Wake            169,082         3              56,361                   18,393
Warren           19,652         1              19,652        18,316
Washington       13,488         1              13,488        24,480
Watauga          17,529         1              17,529        20,439
Wayne            82,059         1              82,059                   44,091
Wilkes           45,269         1              45,269                    7,301
Wilson           57,716         1              57,716                   19,748
Yadkin           22,804         1              22,804        15,164
Yancey           14,008         1              14,008        23,960



*885 STATE SENATORIAL DISTRICTS - 36 WITH 50 SENATORS
District Senatorial Data:
Proportional Representation Per Senator =
             4,556,155                        Minimum Controlling Percentage - 47.1
             ---------  = 91,123              Population Variance Ratio - 2.3 to 1
                50


                                                                                                    Population Change
                                                                                                      Needed for
           Population   Percent of   Underage for     Overage for       Number    Population per    Equal Senatorial
               of         State's     Apportioned     Apportioned        of       Apportioned        Representation
 District   District    Population  Representation   Representation   Senators     Senator          Shortage Excess
----------------------------------------------------------------------------------------------------------------------
No. 1        67,990      1.492          58,570                            1          67,990          23,133
    2        65,722      1.442          60,838                            1          65,722          25,401
    3        73,879      1.622          52,681                            1          73,879          17,244
    4        82,706      1.815          43,854                            1          82,706           8,417
    5       165,844      3.640                           39,284           2          82,922           8,201
    6        86,683      1.903          39,877                            1          86,683           4,440
    7        81,365      1.786          45,195                            1          81,365           9,758
    8        78,608      1.725          47,952                            1          78,608          12,515
    9        98,132      2.154          28,428                            1          98,132                     7,009
   10       178,533      3.919                           51,973           2          89,266           1,857
   11        82,059      1.801          44,501                            1          82,059           9,064
   12       181,654      3.987                           55,094           2          90,827             296
   13        93,867      2.060          32,693                            1          93,867                     2,744
   14        89,102      1.956          37,458                            1          89,102           2,021
   15       148,418      3.258                           21,858           1         148,418                    57,295
   16       195,867      4.299                           69,307           2          97,934                     6,811
   17       181,359      3.981                           54,799           2          90,680             443
   18       189,383      4.157                           62,823           2          94,692                     3,569
   19        85,674      1.880          40,886                            1          85,674           5,449
   20        89,541      1.965          37,019                            1          89,541           1,582
   21       246,520      5.411                          119,960           2         123,260                    32,137
   22       162,286      3.562                           35,726           2          81,143           9,980
   23       189,428      4.158                           62,868           2          94,714                     3,591
   24       178,642      3.921                           52,082           2          89,321           1,802
   25       272,111      5.972                          145,551           3          90,704             419
   26        82,817      1.818          43,743                            1          82,817           8,306
   27        79,254      1.739          47,306                            1          79,254          11,869
   28        98,021      2.151          28,539                            1          98,021                     6,898
   29        97,611      2.142          28,949                            1          97,611                     6,488
   30       127,074      2.789                              514           1         127,074                    35,951
   31       183,678      4.031                           57,118           2          91,839                       716
   32       102,253      2.244          24,307                            1         102,253                    11,130
   33        92,649      2.033          33,911                            1          92,649                     1,526
   34        71,873      1.577          54,687                            1          71,873          19,250
   35       186,157      4.086                          59,597            2          93,078                     1,955
   36        69,395      1.523          57,165                            1          69,395          21,728

