(specially concurring):
I concur in the result. I agree that we should remand in order to afford a more complete factual record for the ultimate disposition of the apportionment scheme in the City of Albany. However, I would permit the trial judge a broader discretion than would the majority opinion. While I agree that the district court should be guided by the Supreme Court’s pronouncements in Wallace v. House, - U.S. -, 96 5. Ct. 1721, 48 L.Ed.2d 191 (1976) (mem.), East Carroll Parish School Board v. Marshall, 424 U.S. 636, 96 S.Ct. 1083, 47 L.Ed.2d 296 (1976) (per curiam), and Connor v. Johnson, 402 U.S. 690, 91 S.Ct. 1760, 29 L.Ed.2d 268 (1971) (per curiam), I disagree with the implication in the majority opinion that the lesson of those cases impels the conclusion that “the court should shape its remedial plan using singlemember districts only.” As the Supreme Court’s opinions make clear, the constitutionality of multimember districting is an empirical matter, to be decided on the facts of a particular case. We leave to the district court the task of ascertaining the facts with respect to the mayor and mayor pro tem positions in Albany and of applying the controlling precedents to those facts.
“[W]hen district courts are forced to fashion apportionment plans, single-member districts are preferable to large multimember districts as a general matter.” Connor, supra, 402 U.S. at 692, 91 S.Ct. at 1762. However, that is not to say that multimember districts are automatically invalidated on constitutional grounds. Indeed, the Supreme Court expressly declined to approve that approach last term in East Carroll, see 424 U.S. at 639, 96 S.Ct. at 1085, and has repeatedly announced in the past that such districts are not per se unconstitutional. See, e. g., Chapman v. Meier, 420 U.S. 1, 15, 95 S.Ct. 751, 760, 42 L.Ed.2d 766, 777 (1975); White v. Regester, 412 U.S. 755, 765, 93 S.Ct. 2332, 2339, 37 L.Ed.2d 314, 324 (1973). Although the Court has struck down certain multimember systems, see, e. g., Regester, supra; Connor, supra, it also has “upheld numerous state-initiated apportionment schemes utilizing multimember districts.” Chapman, supra, 420 U.S. at 15, 95 S.Ct. at 760. In applying its rule of preference, the Court recently adopted an “unusual circumstances” test to justify the use of multimember districting. See East Carroll, supra, 424 U.S. at 639, 96 S.Ct. at 1085. I am therefore concerned by the majority’s imposition of a standard of “special circumstances or insurmountable difficulties,” such that the mayor and mayor pro tem positions must be “so unusual or unique as to require a vote by the whole community.” I fear that the language of the majority’s opinion would elevate the Supreme Court’s rule of preference to a mandate to the district court to impose all-single-member districting, what*1113ever its findings might be as to the political situation in Albany.
In East Carroll, the Supreme Court held that the district court abused its discretion in not ordering a single-member reapportionment plan for the school board and police jury in East Carroll Parish, Louisiana, since “no special circumstances [tjhere dictate[d] the use of multimember districts.” Id., 424 U.S. at 639, 96 S.Ct. at 1085. Furthermore, the challenged scheme involved an all-at-large system, and there had been a “firmly entrenched state policy against at-large elections for police juries and school boards” until shortly before the plan was initially created. Zimmer v. McKeithen, 5 Cir., 1973, 485 F.2d 1297,1307 (en banc).1 Thus, that case is not dispositive of the instant controversy. The “insurmountable difficulties” language incorporated in the majority’s opinion herein comes from Connor. Yet, the “insurmountable difficulties” phrase was not enunciated by the Connor Court as the standard for multimember districting. Rather, the language was simply part of the instructions to the district court to implement a single-member plan in light of the particular facts presented there.2 Id., 402 U.S. at 692, 91 S.Ct. at 1762.
In different contexts, the Court has propounded slightly different variations of the standard for adjudicating the validity of multimember districting. In Fortson v. Dorsey, 379 U.S. 433, 85 S.Ct. 498, 13 L.Ed.2d 401 (1965), for example, the Court held that Georgia’s senatorial reapportionment statute, providing for multimember districting in the state’s most populous counties, while other districts were arranged in a single-member plan, withstood an equal protection challenge. Although the Court was not presented with the question on the facts before it, the Fortson Court suggested a standard for a case involving racial dilution, namely, whether
designedly or otherwise, a multi-member constituency apportionment scheme, under the circumstances of a particular case, would operate to minimize or cancel out the voting strength of racial or political elements of the voting population.
Id., 379 U.S. at 439, 85 S.Ct. at 501.
In Mahan v. Howell, 410 U.S. 315, 93 S.Ct. 979, 35 L.Ed.2d 320 (1973), the Court upheld a court-ordered multimember districting plan where there was a “singular combination of unique factors” which spoke in its favor. 410 U.S. at 333, 93 S.Ct. at 989. Those factors were evidence of “substantial malapportionment” with respect to naval personnel under a single-member districting plan, the Supreme Court’s prohibition of voting discrimination against military personnel, and the fear of disrupting upcoming elections by delay. Id.
A more restrictive standard applies, the Court said in Chapman v. Meier, where a federal court is “imposing” multimember districting on a state which has always employed single-member districts with respect to the offices in question (there state Senate seats), and without an offer, by the court or by proponents of the multimember scheme, of a “legitimate state interest” countervailing the Connor preference for single-member districting. 420 U.S. at 14-20, 95 S.Ct. at 760-63.
However, the Chapman Court explicitly left the door open to advocates of multimember plans:
*1114We hold today that unless there are persuasive justifications, a court-ordered reapportionment plan of a state legislature must avoid use of multimember districts . . . . Where important and significant state considerations rationally mandate departure from these standards, it is the reapportioning court’s responsibility to articulate precisely why a plan of single-member districts with minimal population variance cannot be adopted.
Id., 420 U.S. at 26-27, 95 S.Ct. at 766 (emphasis added). Although the preference for single-member districting is clear, the preceding passage must inform the district court’s reading of the more recent “unusual circumstances” language of East Carroll. What is called for is an open and searching inquiry into the facts and policy behind the two at-large posts in the districting scheme under consideration. Without a more complete record at this juncture of the proceedings, the panel was unable to determine whether the functions of the mayor and, in his absence, the mayor pro tern of Albany amount to “unusual circumstances,” or whether there are, in other words, “important and significant state considerations rationally mandatpng]” at-large voting for those posts. Moreover, the district court should consider on remand the Chapman Court’s observation that “an example of a conceivable rationale supporting multimember districts” is the suggestion that they “may insure that certain interests such as city- or region-wide views are represented.” Id., 420 U.S. at 20 n. 14, 95 S.Ct. at 763 n. 14. See Carpeneti, Legislative Apportionment: Multimember Districts and Fair Representation, 120 U.Pa.L.Rev. 666, 695-96 (1972).
Just as none of the preceding cases is dispositive, neither is Wallace v. House, supra. In Wallace, this circuit held, inter alia, that
[d]ue deference to the long-established Louisiana policy favoring at least some at-large positions in aldermanic elections leads us to conclude that the Board’s preference for the mixed plan [of four single-member districts and one at-large district] must override the district court’s preference for the all-single-member plan.
Wallace v. House, 5 Cir., 1975, 515 F.2d 619, 638, vacated and remanded, - U.S. -, 96 S.Ct. 1721, 48 L.Ed.2d 191 (1976) (mem.). The basis for the Supreme Court’s decision there, vacating the judgment of this circuit and remanding the case for further consideration in light of East Carroll, is unclear, since the Court’s published decision contains only a short order rather than a reasoned opinion. Yet, the Court apparently believed that the panel had not accorded sufficient weight to the Supreme Court’s rule of preference for single-member districting. Wallace is distinguishable from the instant case, though, because Wallace did not present in its scheme an at-large position which was functionally different from the remainder of the aldermanic posts. It will be the responsibility of the trial court, therefore, to determine whether the two posts still in contention here do rise to the point where the rationale for at-large representation is justified under the circumstances.
The trial court also must consider, of course, any possible discriminatory effects of its mixed scheme. The burden of proof as to dilution belongs to plaintiffs. As the Supreme Court said in Chapman :
[I]t must be shown that
“designedly or otherwise, a multi-member constituency apportionment scheme, under the circumstances of a particular case, would operate to minimize or cancel out the voting strength of racial or political elements of the voting population.” 379 U.S., at 439 [85 S.Ct. 498, at 501].
Further, there must be more evidence than a simple disproportionality between the voting potential and the legislative seats won by a racial or political group. There must be evidence that the group has been denied access to the political process equal to the access of other groups. White v. Regester, 412 U.S., at 765-766 [93 S.Ct. 2332] ....
Chapman, supra, 420 U.S. at 17, 95 S.Ct. at 761.
*1115The Chapman Court pointed out that the evaluation of multimember districts differs “depending on whether a federal court or a state legislature has initiated the use.” Id., 420 U.S. at 18, 95 S.Ct. at 762. In court-ordered plans, the preference for single-member districting applies. Id., 420 U.S. at 19, 95 S.Ct. at 762. Plaintiffs, however, continue to have the burden of proving dilution. First, the use of at-large voting for the mayor and mayor pro tern positions in Albany was initiated by the legislature, the district court’s order having been addressed primarily to the remaining aldermanic posts. Second, assuming that the City demonstrates a legitimate interest in the at-large election of the mayor and mayor pro tern, plaintiffs then must show that the district court’s mixed scheme minimizes or cancels out the voting strength of black residents of Albany by denying them equal access to the political process. Moreover, plaintiffs’ proof as to this element of the case should speak to the effect of the plan as ordered by the district judge, rather than as initially enacted by the legislature. Cf. Turner v. McKeithen, 5 Cir., 1973, 490 F.2d 191, 196-97 & n. 23. The district judge has held the previous all-at-large system to be unconstitutional, and has fashioned his own mixed plan. The United States, which originally joined with private plaintiffs in seeking to invalidate at-large voting for all seven city officials, has not cross-appealed, and now concludes that the district court’s scheme “does not dilute the voting rights of Albany’s black citizens and is therefore constitutional.” Brief for United States at 28-29.
While proof of past racial exclusion from the political process in Albany certainly enters into the determination, it will not suffice alone to invalidate the two remaining at-large posts. In Perry v. City of Opelousas, 5 Cir., 1975, 515 F.2d 639, a pre-East Carroll case, this circuit concluded that multimember districting under Opelousas’ all-at-large aldermanic scheme had become “a certain instrument of dilution,” and thus was constitutionally infirm. Id. at 641. Nevertheless, the panel upheld a district-court-adopted system of five single-member districts and one at-large district, after finding no evidence that the mixed plan would deprive Opelousas blacks of fair representation on the Board of Aldermen. The court reasoned that it was proper there to permit the one at-large seat as an accommodation to a longstanding local and state preference for at-large districting. Although this circuit relied heavily in Opelousas on the reasoning of the companion case, Wallace, 515 F.2d 619, which has arguably been disapproved by the Supreme Court’s decision therein vacating and remanding, there is no conflict between the cases, given proper recognition of the Connor preferential rule in accommodating local policy.
Since East Carroll was decided, we upheld an all-at-large scheme for the election of county commission members in Gadsden County, Florida, against a dilution challenge. McGill v. Gadsden County Commission, 5 Cir., 1976, 535 F.2d 277. See also Dove v. Moore, 8 Cir., 1976, 539 F.2d 1152. In Gadsden County, it was established that blacks had been subjected to “an extensive history of discrimination,” id., 535 F.2d at 281; however, the other elements of the Zimmer dilution standards3 were not present. Id. at 280-81. While “reaffirmpng] the importance of past discrimination to decisions about the dilutive effects of at-large voting schemes,” id. at 281, this circuit went on to hold: “[W]e cannot say that the effects of past discrimination, in themselves, cause an at-large voting scheme to unconstitutionally deny blacks access to the political process.” Id. Although we were strongly influenced by the substantial number of Gadsden County’s black voters— who constituted almost half of the county’s registered voters and over half of the majority party membership — we stressed that the significance of past discrimination in a dilution case lies in how it bears on political participation today. Therefore, Gadsden County is not distinguishable.
*1116Finally, the district court should be guided in framing its relief by the practical realities of the situation. In considering private plaintiffs’ request that all at-large posts on the City Commission be modified, the district court should inquire whether all-single-member districting is “required to remedy ‘the effects of past and present discrimination’ ” against black residents of Albany, and to bring them into the “full stream” of the city’s polities, White v. Regester, supra, 412 U.S. at 769, 93 S.Ct. at 2341; the court should not “intrude upon state policy any more than necessary to ensure representation” of those voters. Whitcomb v. Chavis, 403 U.S. 124, 160, 91 S.Ct. 1858, 1876, 29 L.Ed.2d 363, 386 (1971).
. Affirmed “. . . but without approval of the constitutional views expressed by the Court of Appeals.” East Carroll School Board v. Marshall, 424 U.S. 636, 96 S.Ct. 1083, 47 L.Ed.2d 296 (1976).
. In Connor, applicants had submitted to the district court proposed plans containing single-member districts exclusively. The court, concluding that it did not have time to fashion single-member districts because of an upcoming election deadline, issued its own plan, containing both single-member and multimember districts. Id., 402 U.S. at 690-91, 91 S.Ct. 1761. The Supreme Court stayed the order, noting that applicants had been able to devise their single-member plans within a matter of days, that census data was available, and that the district court had concluded that single-member districting would be “ideal.” Therefore, the Supreme Court stated that on the record before it, the district court did have time to devise a single-member plan. Id., 402 U.S. at 692, 91 S.Ct. at 1762.
. See Zimmer, supra, 485 F.2d at 1305. We said in Gadsden County that those standards, which are set forth in the majority’s opinion herein, are still controlling in this circuit. Gadsden County, supra, 535 F.2d at 280 n. 6.