(dissenting):
While I am in agreement with the majority (and in disagreement with Judge Butzner) that the annexation ought not be set aside, I am in agreement with Judge Butzner and the district court that the timing of the annexation and formulation of the annexation settlement were dictated by invidious purposes. Like the district judge, I would undertake to redress the violation of fifteenth amendment rights which were violated thereby, without invalidating the annexation. In formulating relief, the district judge did not, in my view, exceed his discretion, and I would affirm.
Of course, the judicial proceeding for the annexation of a portion of Chesterfield County was undertaken for benign, noninvidious purposes. Had it been allowed to run its course, it would have resulted in an award which, unless rejected by a city council elected in the interim, would have meant that a portion of Chesterfield County was annexed to the City of Richmond. There is no basis in the record to suggest that the extent of the territory to be annexed would have been any less than that obtained under the settlement. Indeed, it was expected to be territorially greater.
But the district judge found that an inescapable consequence of the annexation would be to dilute the black vote in the City of Richmond and to reduce it from a majority position to that of a minority. This was so because Chesterfield County was better than 91% white and Richmond 52% black before annexation. After annexation Richmond would become 58% white and 42% black, since 47,262 new citizens (97% of whom, in the area annexed, were white) would be added to the 104,207 black and 98,152 white citizens (total 202,354) of the pre-annexed city. Moreover, the annexation settlement was negotiated and *1109made effective on the eve of the 1970 councilmanic election which, under existing law, was to be conducted on a single district, at-large basis. Manifestly, the ability of black voters in the pre-an-nexed city to vote and to elect candidates on a basis of race was substantially impaired.1
Dilution of the ability to vote and to elect on a basis of race would be an effect of any benign annexation since all of the areas surrounding Richmond have a predominantly white population and since it would be impossible, short of the most convoluted drawing of boundaries, to annex land without including people. However, the district judge found that the primary reason why the settlement was formulated and effected when it was, was “to assure an unquestioned white majority for the upcoming Coun-eilmanic Elections.” 2 As Judge Butzner has demonstrated, there was an abundance of evidence to support these findings. The opinion of the majority may be read in vain for any adequate discussion of these findings and any demonstration that they are clearly erroneous. Yet they are the crux of the ease. The majority simply takes the position that the evidence to support them is extraneous to the issue. Again, as Judge Butzner has conclusively demonstrated, existing case law requires that it be considered ; otherwise, fifteenth amendment rights may be erased with impunity.3
I cannot subscribe to the thesis, implicit in the majority’s opinion, that because *1110annexation in Virginia is effected in part by judicial determination, the decree of the annexation court somehow washed clean the illegal motives and intentions which caused the settlement of the annexation case to be formulated when it was and in the form which it took. This is not to say that the judges of the annexation court were privy to the motives of the Mayor and majority councilmen. Clearly, they were not. Indeed, one can only conclude from the record that the annexation court was badly used. Yet, in spite of the fact that the settlement was not binding on the court, there can be no question but that it was the principal, if not the sole reason, why the annexation decree followed the settlement verbatim. The point is best established by reference to the semi-secret portion of the transcript of the annexation case.4
After the annexation court, in chambers, was advised of the settlement, Judge Abbott, the presiding judge, counsel and the other judges said the following:
JUDGE ABBOTT: Well, first I would like to say that we are pleased that you have gotten together and settled your differences. I think it might in the end create good will and harmony between people but I think mechanics is a good question to consider.
JUDGE ABBOTT: Let me ask this: Instead of taking time out for your Board of Supervisors to approve or for your City Council to approve, either one of them may turn it down and we have lost all this time.
Why not proceed with your case? MR. MAYS: Your honor, that’s exactly what I was going to suggest. JUDGE ABBOTT: And let us know what you have agreed on and let us make the decision which will be binding then on the city and county without going through the formality of ordinances and meetings of the Board of Supervisors.
MR. THORNTON: This is what we had in mind your Honor.
JUDGE ABBOTT: Then we can hear the intervenors and let them present their case and we will make our decision then. If we approve what you all have agreed upon, that will be our decision; if we disapprove then, of course, we would say so.
The chances are we are going to approve it but sometimes things come up and you can’t approve ... it would be my suggestion that we just proceed with the case and then when the evidence is in, let us hear the Protestors and then you can tell us what your agreement is and we can make our decision accordingly, and in that way the Intervenors won’t feel like they have been kicked around or left out. (Emphasis added.)
MR. MAYS: It would certainly be our suggestion your Honor to go forward with the case because, in the first place, it would look pretty odd to recess for three days [the Intervenors had been scheduled to appear in three days] and then get the Intervenors in on Thursday. That would really be odd.
JUDGE ABBOTT: I don’t think we ought to put this in evidence but just *1111proceed with the trial as if you hadn’t been in here.
MR. MAYS: Yes, sir.
JUDGE ABBOTT: Then when the evidence is all in you can submit to us what your agreement is.
JUDGE ABBOTT: I might suggest that if you have entered into an agreement that the City need not cross examine so extensively as you have.
MR. MAYS: We hadn’t planned to, your Honor.
JUDGE ABBOTT: And that would certainly save some time.
There then ensued some discussion as to the agreement being one that had not formally been passed upon by a meeting of council but only agreed to by six members of the council, with the consequence that the city was not firmly bound:
MR. MATTOX: Judge Marshall, I think this is important. Six members of the Council although it is a matter of record did sit in this room and agree to something, but that does not make it an agreement.
JUDGE MARSHALL: Of course not. JUDGE ABBOTT: We understand that.
MR. MATTOX: That’s the point I wish to make.
JUDGE ABBOTT: That’s the point we are making that since you could not bind the Council, if we heard the evidence and then made our decision and we adopted what you say was your settlement, then Council would be bound by it without having to pass a resolution.
JUDGE MARSHALL: I would like to say, gentlemen, that would hold great weight with me in my decision if it was shown openly [referring to airing the agreement in open court] that the Mayor and six members of the Council had agreed and that the Board of Supervisors had agreed.
I would hesitate to overrule their agreement.
JUDGE ABBOTT: I think all of us would.
In short, I can only conclude that the exercise of the judicial function was pro forma once the court had determined that on its face the settlement was not so objectionable that judicial blessing should be withheld. Given that the motivation and illegal purposes of the settlement proponents were withheld from the court, this was not the type of judicial decree which should insulate the settlement proponents from the full effect of their wrongdoing.
Where I differ from Judge Butzner is in the form of relief which should be granted. To me this is a case of violation of fifteenth amendment rights superimposed upon a proper, legal annexation proceeding. Since there is no reason to question that some annexation, at least as great in geographical scope, would have been decreed had the proceedings run their course and since, from my reading of the record, there could not have been an annexation of territory without an annexation of people and consequent dilution of the black vote, I approve of the district judge’s fashioning relief solely by ordering a new election of council members under conditions where the black vote could not be diluted. Limitation of the remedy to the election of members of the city council, to me, poses no objection. Of course, the black vote would be diluted with respect to the election of city-wide offices, but that result would be inevitable in any annexation of at least that many people. By the same token, dilution of the white vote in the area annexed was inevitable, because any area annexed had a lower density population and the annexed white voters could never retain' their majority position. After the special election decreed, succeeding members of the city council would be elected as its members, or the General Assembly, decided; but it must be re*1112membered that the Voting Rights Act of 1965, 42 U.S.C.A. § 1971 et seq., applies to the City of Richmond so that whatever succeeding election procedure was devised, it would require the approval of the Attorney General of the United States or the United States District Court for the District of Columbia, under § 1973c, with the result that the voting rights of various blocs would continue to be preserved and protected. In summary, all conflicting claims could never be perfectly resolved in a manner which gave full protection to each, but the district judge clearly did not abuse his discretion in formulating the decree.
For these reasons, I would affirm the district court.
. This is especially true in Richmond because the district judge found that in 1968 approximately 50% of registered Negro voters voted, while only approximately 30% of white registered voters voted.
. When the City of Richmond rejected the Henrico annexation award in 1965 because of the prohibitive cost as fixed by the annexation court, Richmond officials sought to negotiate a settlement of the then dormant Chesterfield case on the basis that the City obtain 44,000 new white citizens. The negotiations bore no fruit and the suit proceeded for four years before settlement negotiations were begun anew. From the standpoint of the dominant white majority in Richmond, events occurring in the interim provided a new spur to effect a settlement before the 1970 councilmanic election. From the standpoint of Chesterfield County, one can suppose that the progress of the ease and the probably ineluctable outcome generated a new receptivity to settlement. In any event, there was a clean break between the discussions in 1965 and their resumption in 1968 and their implementation in 1969.
. I add some observations to supplement Judge Butzner’s discussion of the legal problem:
First, it is impossible to reconcile all of the holdings and dicta of the Supreme Court on the question of the circumstances when it is permissible to consider motive and purpose of members of a legislative body in order to impeach the legislative result. Compare the opinion of Mr. Justice Black, writing for the majority, with the dissenting opinion of Mr. Justice White, in Palmer v. Thompson, 403 U.S. 217 [91 S.Ct. 1940, 29 L.Ed.2d 438] (1971). See also, Ely, Legislative and Administrative Motivation in Constitutional Law, 79 Yale L.J. 1205 (1970); The Supreme Court, 1970 Term. 85 Harv.L.Rev. 3 (1971).
Second, in my view, the Supreme Court’s latest expression on the subject, Palmer v. Thompson, supra, would permit resort to the evidence in this case. It is true that such evidence was rejected in Palmer, but Mr. Justice Black’s opinion makes clear that this result flowed from the fact that the swimming pool closings did not of themselves deny equal protection of the laws, because there was no constitutional right to have a swimming pool maintained and there was no evidence that segregated pools were being supported or maintained. Distinguishing Griffin v. [County School Board of] Prince Edward County, 377 U.S. 218 [84 S.Ct. 1226, 12 L.Ed.2d 256 (1964), and Gomillion v. Lightfoot, 364 U.S. 339, 81 S.Ct. 125, 5 L.Ed.2d 110] (1960), where motive was considered, Mr. Justice Black acknowledged that motive could properly be considered when the facial effect of the enactment was to deny or impair a Fourteenth or Fifteenth Amendment right. The instant case belongs in the latter category; because without recourse to purpose or motive, one can readily see that the effect of the annexation would inevitably be to dilute the black vote. Except as to *1110degree, i. e., mere dilution rather than outright denial, this ease is like Gomil-lion. Wright v. Rockefeller, 376 U.S. 52 [84 S.Ct. 603, 11 L.Ed.2d 512] (1964), is no impediment to this analysis, because, there, the majority of the Court accepted the district court’s finding that New York’s redistricting statute had neither the effect of drawing districts on racial lines nor was it motivated by racial considerations.
. When the dialogue which follows in the text was recorded, the presiding judge requested that it not be transcribed; and if it was transcribed, that it be withheld from the news media. Later the annexation court receded from this position, apparently because the news media had gotten part of the story.