concurring specially:
This brief soliloquy is necessarily said, in my respectful view, because every other opinion goes farther than the Voting Rights Act intends. My brothers Gee and Higginbotham are at odds about the way the court should take to reach the same result. While their disagreement centers on the representative nature of the judicial office, the essence of their analyses of the impact of racial vote dilution in this judicial election process based on the nature of the office is similar—so similar that, if their opinions were expressly limited to the facts of the present case, I agree with both.
There is no disagreement that Section 2 of the Voting Rights Act, before its amendment, forbade any practice or procedure that abridged the right to vote because of race or color. All also agree that the legislative intent of the amendment was only to broaden the test for vote dilution from “intent” to “result.”
The elements of Judge Gee’s analysis are that, since section 2(b) defines vote dilution in terms of representatives, no vote dilution claim can be made in any election of a judicial officer because a judge can never be a representative—a conclusion he finds confirmed by the Supreme Court’s refusal in Wells v. Edwards to apply one-man, one-vote standards to judicial election districts.
Judge Higginbotham rejects this analysis. He would base reversal on the premise that none of several elected trial judges who all function singularly in their work can be subject to the single-member redistricting claim made here. My concern is that the court’s opinion, as now written, *632puts vote dilution attacks on (1) judicial elections which cannot be resolved by examining the nature of the office, and (2) “issue” elections (such as referenda on constitutional amendments and bond issue elections) beyond the reach of amended section 2.
Judge Gee starts with the observation that the words of section 2 expressly limit vote dilution to elections of representatives. I can readily agree section 2 does not apply to the elections challenged here. It involves only the election of persons and voter impact turns entirely on the nature of the judicial office. This brings section 2(b) into play. The inherent nature of the judicial function and, indeed, the constitutional limits of due process require that every judge be impartial between litigants and neutral as to claims presented. In the discharge of official duties, no judge can ever “represent” the electors in the jurisdiction served by the court. A vote for a judge differs from a vote for other types of officers. Whether the choice be for councilman, sheriff or governor, and whether it be based on whim or party or nonpartisan analysis of the individual candidate, votes for these types of officials are cast for those who will best express the wishes and views of their constituents. This cannot be so when a voter picks a judge. Legislators and executives are expected to represent. Voters must know judges cannot. The same principles control when a state provides for election rather than appointment of its judiciary. The choice seeks to assure the public that the judicial function will be kept accountable to the common sense of the electorate. It is expected that candidates who lack training or a reputation for honesty or sound intellect will not be elected. In like manner, those who are indolent, will not decide cases or decide erratically will not be re-elected. Overarching any considerations of voter motivation is the due process neutrality required in the conduct of the office. It does not permit the judge’s responsiveness to the electorate’s concept of common sense to become representation of the electorate. The State of Texas has a strong interest, and, indeed, a fundamental right to choose to have these judges elected in the manner provided here. Its choice does not violate amended section 2.
The difficulty I have with Judge Gee’s analysis is that it has no limit. There are many types of elections which involve issues, not candidates, which surely ought to be subject to the vote dilution stricture of section 2 despite the absence of any question of representation. But merely noting the applicability to “issue” elections would not adequately define the reach of section 2. It is imperative, in my view, that a bright circle be drawn around judicial elections as well. Judge Gee’s reasoning would expressly deny section 2(a) coverage to judicial elections in situations beyond today’s facts, as he makes clear by overruling Chisom v. Edwards. Section 2(a) is an integral part of a remedial statute. It deserves to be interpreted so as to prevent racial vote abridgment even when it occurs in a judicial election. The phrase “as provided in subsection (b) of this section” which appears at the end of subsection (a) should be read as giving an example of proscribed vote dilution. It does not provide that section 2(b) establishes the only way the section can be violated.
It is clear to me that when a state continues to apply a voting procedure in a manner which now results in an abridgment of the right of a citizen to vote on account of race, that procedure is still condemned by amended section 2(a), just as it was before the amendment.
Nothing we say today should be taken as passing on a claim that a judicial election process in which judges are elected by fewer than all of the eligible voters within the jurisdictional area of the court on which the judge will serve has become a violation of section 2. Such elections involve district-ing of voters in a manner entirely unrelated to the representative nature of the judge’s office.
[Thornburg v.] Gingles [478 U.S. 30, 106 S.Ct. 2752, 92 L.Ed.2d 25 (1986) ] tells me that whether the political process chosen by Texas for selecting its judges is equally open depends upon evaluation of past and present reality under a functional view of *633the process. There is nothing wrong with the state’s choice to elect any number of a county’s district judges county-wide. However, if the state has chosen to divide a single judicial jurisdiction into separate groups of electors, that choice could, with changes in demographics or other conditions come to raise real issues of racial gerrymander, gross diminution of voting strength, candidate slating ability or other violations of equal protection which have nothing to do with the due process concerns which control the execution of judicial duties, or with the manner in which the office of judge is carried out. Of course, I agree that Wells v. Edwards establishes that approximate numeric equality of voters between judicial districts is not required. However, we need not and should not decide now that judicial subdistricts which grow to have gross numeric or racial disparities in their make-up will always be free of possible section 2 problems. For this reason, I respectfully, but expressly, disagree with the majority’s flat-out overruling of Chisom v. Edwards.
We are not confronted here with any claim of vote dilution resulting from long-established subdistricts alleged to have become racially invidious on a basis of intra-jurisdictional voter distribution. This was the claim that was before this court in Chisom. The holding in Chisom reversed a dismissal on the pleadings. I agree that such a reversal was proper, even though I cannot agree with all said in Part I of Judge Higginbotham’s concurrence or Judge Johnson’s dissent because both deny vitality to section 2(b). Since we are writing en banc, I am free to disagree with the reason given for the result in Chi-som — that section 2 applies to all judicial elections. I am of the opinion that it is equally wrong to say that section 2 covers all judicial elections as it is to say it covers none. However, if today’s facts were the same as Chisom’s, I would hold a claim that judicial subdistricts, once having no invidious purpose, but alleged, over time, to have come to abridge section 2 rights, must be factually developed and cannot be dismissed on pleadings alone.
If the issue were reached in today’s case, I would also agree with Judge Higginbotham that the presence of multiple judicial posts on the ballots of plaintiffs here gives them no section 2 right to have single-judge subdistricts drawn. I would do so because I am not required to agree that the principle applies on any broader scale than the facts before us present. His function-of-the-office analysis is, to me, identical in concept to the majority view. The caveat I think must be added to both is that only when the area of jurisdiction of each of several jurist to be elected is coextensive with the area of residence of those that elect them, is each vote for a judge bound to be equal to every other vote that may be cast.
I would not agree with Judge Higginbotham that the single-judge, trial-court function of the judicial office is a critical factor. The analysis ought to be the same regardless of how the judge judges. When an appellate judge — who must function with other appellate judges to accomplish the judicial task — serves the same jurisdictional area as that which defines the electorate, section 2 does not allow a single member subdistricting remedy to be applied. This is so because no intrad-istrict or intrastate violation of section 2 is possible. The collegial nature of the appellate office in no way alters the compulsion for due process neutrality. When this neutrality is coupled with congruence of jurisdiction and electorate, they jointly assure equality in voting practices and procedures, negate representation and eliminate the possibility of vote dilution.
However, as with my partial agreement with Judge Gee’s analysis, agreement with Judge Higginbotham should not be taken as controlling fact situations not before us here. The single-judge, trial-court functional analysis proceeds solely on what the judge does and the way he does it. These analyses change no basic principles. If the coincidence of voter residence and jurisdiction does not exist, the same possible vote dilution violations mentioned above, which have nothing to do with the function of the office being voted on, could occur. The importance of the policy embodied in sec*634tion 2 compels me to say that these limits must be placed on what we write so that future courts will not cut short the intended reach of section 2. In my view, the majority view should be limited to the facts before us.
With the reservations expressed, I respectfully concur in reversing the judgment appealed from.