dissenting:
The en banc opinion “voids” this election under a novel and, I submit, unsound rule. The court holds that in a post-election suit involving unintentional pre-ballot activity which has a disappro-priate racial effect,1 the election may be set aside unless the defendant Voter Registrar meets “a heavy burden” of showing that plaintiff knowingly, deliberately by-passed pre-election judicial relief. I continue to opt for the more restrictive rule applied by the panel— where a party challenges the pre-election activity of registration personnel, the plaintiff must show that such practices were not known to him, or discoverable with reasonable diligence, in time to have sought relief before the vote was taken. In addition to placing the burden of proof on the party who possesses the facts, the panel rule reinforces the solemnity of the electoral process by cutting off ex post facto attacks from those chargeable with constructive knowledge of inadvertences or errors. As the con-*318eluding paragraph of Judge Gee’s concurrence aptly demonstrates, application of the anomalous principle of “unintentional discrimination” is particularly paradoxical in election cases. Certainly its use to require elections to be rerun should be restricted to the smallest ambit practicable.
Furthermore, I cannot concur in the en banc opinion on the facts either. The record in this case simply will not support any other determination than that the plaintiffs well knew the essential facts which formed the basis for their belated complaint long enough before election was held to have permitted recourse to the courts without waiting to see if the returns from the polls were to plaintiffs' liking. The district court and panel opinions make it abundantly plain that everything done by the Registrar, Mrs. Bishop, was suspect by both white and black citizens of Tallulah because of the town’s long history of racial controversy concerning voting. Her publication of the purge notice containing the names of 130 blacks and 11 whites was an immediately recognized red flag which plaintiffs sought to investigate. Indeed, the notice was improper on its face under Louisiana law. Her office was open for reinstatement on only four of the ten days required. Counsel for private plaintiffs advised this court on oral argument that when he attempted to view the registration books he was physically ejected from Mrs. Bishop’s office. Taken together, these facts, which were known to the plaintiffs more than three weeks before the election, certainly formed a sufficient predicate for legal action. That still other improprieties regarding absentee balloting were later discovered is cumulative and in nowise detract from a determination that judicial assistance could have been invoked before the voting took place.
With regard that the court cannot discern the hazard to the practical functioning of the political process created by the sweeping rule it has adopted, I respectfully dissent.
. All but one member of this court affirm the trial judge’s determination that intentional or gross discrimination is not involved here; neither is this case concerned with incidents occurring during the voting process. We are well committed to the proposition that wrongs of both these sorts may be attacked after an election is held without regard to any bypass or election of remedies rule.