dissenting:
I join in the dissenting opinion filed by Judge Clark. I agree with all that he has written, but I am particularly disappointed that the en banc Court reassigns the District Court to the drawing board without specifying the standards which would meet the requirements of the law. This will likely breed further appeals and further delays.
Secondly, I must point out that the Order granting rehearing en banc in this appeal was entered May 12, 1976, exactly one year ago as this is being written. The en banc opinion, in its present form, was circulated on March 31, 1977. In the meantime, on February 28, 1977, the Supreme Court heard oral argument in Connor v. Finch, the statewide Mississippi legislative reapportionment case. The Kirksey case is so interrelated with Connor that the Kirksey record was appended as an exhibit to that appeal and is the subject of discussion in the Supreme Court briefs. As one of the Judges who sat on Connor, it is my considered opinion that when the Supreme Court acts on Connor there will be nothing left to Kirksey but a brief per curiam, one way or the other.
It is well known, of course, that we have an entrenched practice of deferring action on an appeal involving issues pending before the Supreme Court. We await, as we should, guidance which we think is likely to be forthcoming from the High Court. The next scheduled election for Supervisors in Mississippi does not take place for over two years — August, 1979. After Connor was argued, with no opinion yet ready to come down from the en banc Court in Kirksey, I requested in writing that we defer our opinion until the Supreme Court decided Connor. Contrary to the precedent which has been followed in this Court during the twelve years I have been a member of it, the request was denied by a majority of the en banc Court.
Since Hinds County has thus, in my opinion, been denied the treatment usually accorded other litigants, I respectfully record the occurrence and make no further comment.
CLARK, Circuit Judge, with whom COLEMAN and HILL, Circuit Judges, join, dissenting:From another part of the political thicket I answer Judge Gee’s lamentation that his panel opinion views have been lost in new Supreme Court law with the equally plaintive response that I am lost in the analysis, the supporting facts, and the remand for remedy disposition which today’s en banc majority imposes.
Two distinct approaches have been utilized in assessing the validity of apportionment plans. Where the plan under attack was adopted by a state or local legislative body, a constitutional analysis has been used. See e. g., White v. Register, 412 U.S. 755, 93 S.Ct. 2342, 37 L.Ed.2d 314 (1973). But where the challenged plan was put into effect by federal judicial decree, a “propriety of the remedy” analysis has been utilized. See e. g., East Carroll Parish School Board v. Marshall, 424 U.S. 636, 96 S.Ct. 1083, 47 L.Ed.2d 296 (1976). Since this case involves a court-ordered plan, only the latter approach is applicable. The en banc majority’s partial reliance on the constitutional analysis is, I respectfully submit, misplaced, because this plan was not implemented by state action. It is a distracting confusion because evidence that the Board of Supervisors intended to discriminate on the basis of race, which would be necessary to demonstrate the existence of a constitutional violation, is irrelevant to the determination of whether the remedy formulated by the district court was a permissible one.
*158Under the proper remedy analysis, our task is to decide what constitutes an abuse of discretion in formulating a remedial apportionment plan, and to examine the record in light of the standards developed. To date the Supreme Court has indicated that a district court abuses its discretion when it creates a plan (1) in which there exists excessive interdistrict population disparity, or (2) that contains multimember districts “absent unusual circumstances.” See Chapman v. Meier, 420 U.S. 1, 95 S.Ct. 751, 42 L.Ed.2d 766 (1975); East Carroll Parish School Board v. Marshall, supra. To these two forbidden practices the majority proposes to add a third: the creation of a plan that “slic[es] up a cohesive minority voting area in a community where there is bloc voting.” The majority suggests that this addition is justified because such a plan is like one containing multimember districts in that it tends to submerge the political voice of racial or political minorities. But in Chapman v. Meier, supra, the Supreme Court supported its holding that the inclusion of multimember districts in a court-ordered plan was an abuse of discretion with four reasons. The tendency of multimember districts to submerge minorities was merely one. None of the other three reasons relied upon in Chapman is applicable here. In addition, this court furnishes the district court no guidance in determining whether the new remedy it must fashion will meet this third standard.
Although it does not flesh out the premises which support its third factor, the majority clearly indicates it would necessarily rest on two factual findings: First, that there is bloc voting within the affected community; and second, that blacks are a minority of the voting age population in the districts created. For the reasons discussed below, I respectfully submit that an insufficient basis exists in the present record for drawing either conclusion. Thus, even if the majority’s third factor is a proper one, it should not be used in remedy formulation until the foundation facts are established.
The key fact premise of Judge Godbold’s opinion is that in Hinds County whites always vote for whites and blacks always vote for blacks. It is taken as a given, yet its only basis is a survey. While the district court did characterize the survey as “persuasive evidence,” it found the survey to be internally “incomplete” and “inconsistent” and “completely inconsistent” with other proof in the record. Although no contrary opinion or survey evidence was offered, I believe the unequivocal determination of incredibility given this survey by the trier of facts at least requires a remand to determine which way truth lies as to this crucial issue.
The district lines which the district court drew are ordered obliterated because two districts show 48% rather than clear majority black voting age populations. These statistics are based on 1970 census data. Yet that same seven-year-old data base discloses that in the age groupings which would include those now eligible to vote, the percentage of blacks grows increasingly greater in each younger age cohort group.1 I don’t know whether the presently formed districts are now clearly majority black or not. I only assert that the rest of the court doesn’t know either. If they are today in fact “safely” majority black in voting age population, the majority would not say that they are wrongly drawn under the criteria *159it advances. An injunction always looks to the future. Conditions existing in 1970 are pertinent only as guides to the present, and those conditions indicate we should require present proof.
Equally distracting is the majority opinion’s creation and ex post facto application of a new presumption in its constitutional analysis. The proof showed that Hinds County has a history of racial discrimination. Today it is announced for the first time in a redistricting case that the defendants must bear the burden of showing this past forms no part of the present. That is a burden they might have carried had they but known they were obliged to do so.2 Despite its insertion at the appellate level, and contrary to the requirements imposed at trial, we do not permit this defendant to try to meet our newly imposed standard. This court has never cut across due process in this fashion before. I regret we do it today.
I am perplexed by the majority’s determination that the district court abused its discretion in formulating a remedy which that court found to be wholly free of racial motivation. The trial court has been held to have abused its discretion by “slicing up a cohesive minority vote area in a community where there is bloc voting,” and approving a “plan which tended to carry forward into the future the long-lived denial of black access to the political process.” Aside from my disagreement with the appellate factfinding that underlies these condemnations, I don’t understand them to give proper guidance to the district court in its task of revising the geographic lines between supervisor districts in Hinds County. Is the “higher standard” that the court plan must meet more than the requirement that blacks be afforded a realistic opportunity to elect representatives of their choice? Is the district court told that the United Jewish Organizations ease mandates racial gerrymandering? If it is, what is the district court’s duty and what are the ambits of its discretion? Must that court assume bloc voting and create “safe” black seats on the Board of Supervisors? How many must it create, as many as possible or just enough to approximate the county-wide black population?
I respectfully submit that the en banc court has been too free with criticism and too parsimonious with guidance, and I therefore dissent from the remand of the case limited to remedy formulation before we know what the facts are and before we say what standards must be applied.
HILL, Circuit Judge, with whom CLARK, Circuit Judge, joins, dissenting:I join in the dissent of Judge Clark, and I am constrained to add a few lamentations of my own.
In our federal judicial system, district court judges are unable to avoid deciding any particular case submitted to them. The litigants and their counsel, for the most part, determine the issues which are presented to the court and the trial judge must ultimately render a judgment delineating the proper and legal result. This final judgment establishes the rights and liabilities of the parties and must be articulated with sufficient definiteness so that a marshall may execute it. I submit that when a case is appealed to this court, we are under the same duty to decide the issues presented with sufficient clarity that a conscientious district judge may execute our decision. The opinion for the majority avoids doing so.
The procedure tacitly adopted by the majority might be appropriately described as *160“dodge the bullet.” The opinion for the majority is content with general observations on the development of the law in the area and expresses general discontent with the course of events in the district court. Then, the truly tough and nettlesome issues are swept from our bench and returned to the trial court in an apparent apocalyptic “reversed and remanded to the district court for the fashioning of a remedy.”
I regret that this course has been chosen. In an expression of chauvinism perhaps not totally inappropriate due to my recent appointment to this court, it has been my observation over the years that of all the judicial bodies in this land the United States Court of Appeals for the Fifth Circuit has traditionally taken the lead in making hard decisions in this and related areas of the law. We shun our history in the decision of this case and merely say to our district court judges, “Guess again; we will tell you after the fact whether you are right.”
I see it as our duty to inform rather than confound; to explain rather than merely complain; to enlighten rather than obfuscate. When the district judge and counsel for the litigants in this case have studied the opinion for the majority, they should know what is to be done in the case. Litigants and trial judges appeal for direction from this court, but I apprehend that they look in vain upon the majority opinion. The only direction given by the disposition of this case is that the direction taken was wrong so try another way. I apprehend that responsible public officials throughout this circuit desire to conduct the affairs of their offices according to the law. While the majority opinion accurately proclaims the difficulties confronting public officials, lawyers, and district judges, the case is remanded over two years after we were asked for direction without the much needed guidance. We do the litigants, trial judges, public officials and ourselves a disservice.
What I write here discloses some different views from those expressed by Judge Godbold for the majority. Yet, my dissent is not so much from what he says as from the majority’s failure even to apply the principles it expounds to the issues in this case for the guidance of the litigants and the trial court. One reads United Jewish Organizations of Williamsburgh, Inc. v. Carey, — U.S. —, 97 S.Ct. 996, 51 L.Ed.2d 229 (1977) and instinctively feels that the Attorney General also drew back from articulating his decision.1 Thus, the parties were relegated to operating on the basis of a “leak” from an undisclosed member of his staff2 to which they promptly responded.3 This scenario suggests that if only the parties could find out what the Fifth Circuit really wants sub silentio, then they would readily comply. This is no way for the Office of the Attorney General to transmit decisions and I am confident that this court would not tolerate such a procedure.
I frankly have no more appetite than my brothers for “biting these bullets.” If it were not legally mandated that “[cjases and controversies shall be heard and determined” by our court, 28 U.S.C.A. § 46, I might remain silent and concur. Since it our duty to decide, I shall refer to only a few of the questions that I feel have been raised but which the majority declines to answer.
What is the legal significance of the fact that no black person has ever been elected to the Board of Supervisors of Hinds County, Mississippi? The Court repairs to Zim*161mer v. McKeithen, 485 F.2d 1297, 1305 (5th Cir. 1973), aff’d on other grounds sub nom. East Carroll Parish School Board v. Marshall, 424 U.S. 636, 96 S.Ct. 1083, 47 L.Ed.2d 296 (1976), to restate that “[cjlearly, it is not enough to prove a mere disparity between the number of minority residents and the number of minority representatives.” (footnote omitted). Later, the majority observes that “the absence of black elected officials in a county where approximately 35% of the voting population is black is an indication that access of blacks to the political processes of the county is not yet unimpeded.” Ante at 146. While these two assertions may not be contradictory in their finer points, the question raised and left unanswered by the court is the significance of this fact. The majority uses this fact to support the proposition that the residual effects of past practices on the access of blacks to the political process have not been dissipated in Hinds County. Even if true, however, the probative value of this fact on the constitutionality of the present apportionment plan — under which no elections have been held — is tenuous.
More fundamental, this conclusion by the majority raises the question of what is meant by “access to the political process.” Ironically, the task of establishing the substantive content of this concept falls upon federal judges who are appointed rather than elected and who have from the time of their appointment properly removed themselves from the art and science of politics. Is genuine access to the political process better provided to a minority by placing its members in one or two political “ghettos” so that supervisors from other districts have, remaining, no significant number of minority voters to whom they must pay heed in the discharge of their duties? Is it better access to be assured of the power to elect a minority or to be in a position to have a significant impact upon the outcome of elections for the majority? Is it our national purpose under the law to achieve a truly homogenous society in which free and independent voters cast their ballots for candidates that they deem best qualified, regardless of race, or do we despair of that goal and retreat to establishing black elections for black officials and white elections for white officials as the only possible response to the odorous “white primaries” of the temporally recent but factually remote past. The district court in this ease is entitled to know which course this court directs.4
I suggest that the conscious creation of “safe” black districts may not be a talismanic solution for insuring access to the political process. Simplistic solutions tend to be stop-gap remedies. Surely, no one believes that all that this court must do is insure that a few blacks are elected in Hinds County and nirvana shall be reached. To place the black citizens in that perpetual minority position could be permanent denial of the sort of political access that results in governmental responsiveness.
Conscious “benign” racial gerrymandering also raises possible problems. A purported preference may disguise a policy that actually perpetuates disadvantageous treatment. “An effort to achieve proportional representation, for example, might be aimed at aiding a group’s participation in the political processes by guaranteeing safe political offices, or, on the other hand, might be a ‘contrivance to segregate’ the group, thereby frustrating its potentially successful efforts at coalition building across racial lines.” United Jewish Organizations v. Carey, supra, — U.S. at —, 97 S.Ct. at 1013 (Brennan, J., concurring in part) (citation omitted). In addition, “benign” racial preferences may stimulate latent race consciousness and stigmatize recipient groups. Id. Finally, “benign” racial preferences assume that all individual minority persons have identical interests— an assumption often divorced from reality. See Wright v. Rockefeller, supra, 376 U.S. *162at 53-54, 62, 84 S.Ct. 603 (Douglas, J., dissenting).
As mentioned above, it seems inappropriate that those of us in the one branch of government purposefully and properly removed from politics should presume to weigh and decide these questions of political access and official responsiveness on a record totally devoid of any expert evidence from either practical politicians, political science students, or both. Were the case to be remanded as Judge Clark suggests (and in which suggestion I join) for the taking of evidence as to the continued effect of past denials, the district court should also be directed to develop a record of qualified evidence on these issues.
Finally, does the majority say that, in a case such as the one before us, the district judge is required under the law consciously to consider race in establishing voting districts? United Jewish Organizations v. Carey, supra, clearly holds that in cases arising under the Voting Rights Act, 42 U.S.C.A. § 1973 et seq., a state legislature may constitutionally do so. Must a district court in a non-Voting Rights Act case draw district lines with a conscious regard for race? Perhaps the Constitution requires it (though I doubt it), but I submit that our court is obligated to “belly up to the bar” and furnish our district court brother our answers to these hard questions rather than content ourselves with expressions of discontent with his solution.
I must confess that I am somewhat perplexed by the concurring opinion of Judge Gee. He apparently reads United Jewish Organizations v. Carey, supra, as “commanding the trial court to devise and install a more partisan gerrymander in favor of Hinds County black voters so as to guarantee their proportionate representation on the county board.” Ante at 155. With all due respect I find this conclusion bewildering. My reading of the Supreme Court’s opinion is much less daring. United Jewish Organizations merely holds that a state political body attempting to comply with the Congressional mandate embodied in the Voting Rights Act is not prohibited by the Constitution from considering race in establishing election lines. This is a far cry from ruling — as our court may be doing today— that the Constitution requires that race be consciously considered.
Related to this subject, one notes that Judge Godbold refers to the rule “that court-ordered apportionment plans are to be held to higher standards than legislatively enacted plans subject to the preclearance requirements of § 5 of the Voting Rights Act.” Ante at 150. I take no issue with this rule, but I am puzzled by his application of it in this case. Apparently, this rule is suggested as bolstering the court’s rejection of the court-ordered plan in this case. Of course, the United Jewish Organizations decision was concerned with a legislatively enacted plan. For me it more logically follows that, because we are dealing with a court-ordered plan in this case, and since court-ordered plans are held to higher standards, the Constitution may very well prohibit conscious racial gerrymandering by a court while permitting it by an elected state political body implementing the Voting Rights Act. In sum, what the “lower standard” allows a state legislature to do, the “higher standard” prohibits a federal court from doing. I respectfully suggest that the majority has simply placed the rule on its head.
Were these and other issues addressed by our court today, I might find myself in no posture to dissent. As it is, I am in no posture glibly to concur. I also join with Judge Clark in the strong opinion that the county litigants should be afforded an opportunity to develop evidence for the district court as to whether past practices presently affect access to the political process now that the rules have been laid down. The passage of time alone does not create remoteness; events can make remote that which is temporally recent. Nothing is older than yesterday’s newspaper and there is hardly anything newer than our Constitution and its Bill of Rights. The majority chides the district court for decisions based on conjecture. Then, this court establishes an evidentiary rule and defaults the defend*163ants for failing to have predicted and followed it. I submit that the question of whether past practices affect present access is not one that should be based upon “conjecture” at the trial or on appeal.
As Judge Coleman in dissent points out, we feel compelled to hand down our decision without further delay. I take no special issue with that except to note that in the time available I have been able to suggest only some of the issues upon which we offer no decision. Others will appear. The last paragraph of the majority opinion accurately articulates the difficulties to be encountered in their resolution. Yet, we should decide the hard ones along with the relatively easy ones. I apprehend that the district judge, would appreciate our directions even more than the compliment implied in our remand to him of these questions.
Therefore, I dissent.
. The 1970 Census of Population (advance report), General Population Characteristics, U. S. Dept. of Commerce, Publication PC (VA)-26 (Miss.), shows the following data for Hinds County, which had a general population in 1970 that was just over 60% white:
Children aged 15-24 in 1970:
Total: 41,019
White: 23,542 57.4%
Black: 17,477 42.6%
Children aged 5-14 in 1970:
Total: 46,980
White: 24,661 52.5%
Black: 22,319 47.5%
I readily acknowledge that the groupings are over-inclusive at the young- and old-age ends. The data is not available in more refined form in the referenced publication. It does suffice to make the statistical point that the percentage *159of blacks in Hinds County’s 1970 population increased significantly in the lower-age brackets.
. Without attempting to fix blame or praise on local, state or federal politics, it is an easily established fact that black registration and participation in electoral procedures is up dramatically in Hinds County, and economic and social advances by blacks which were totally unenvisioned by either race ten years ago, have also occurred. I say this to make plain that the burden may not be as impossible to meet as the recitation of past history may indicate.
. Thus, in his letter to the New York State authorities the Attorney General would only say, “[w]e know of no necessity for such configuration and believe other rational alternatives exist.” United Jewish Organizations v. Carey, supra at — n. 6, 97 S.Ct. at 1002.
. An unnamed Justice Department official made known that satisfaction of the Voting Rights Act would necessitate the creation of 10 districts with threshold nonwhite populations of 65 percent. See United Jewish Organizations v. Carey, supra at —, 97 S.Ct. 996 (Brennan, J., concurring in part).
. The revised plan submitted by the state contained ten districts with nonwhite populations of between 65 and 90 percent.
. For my part I shudder to think that the majority endorses the words of John W. Davis for South Carolina in Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954). “The good is sometimes better than the best.” See Wright v. Rockefeller, 376 U.S. 52, 62, 84 S.Ct. 603, 11 L.Ed.2d 512 (1964) (Douglas, J., dissenting).