dissenting.
I am unable to agree with the majority opinion for the following reasons.
It is fundamental that before a federal court may modify an apportionment plan enacted by a state or local governmental entity, there must be a showing that the plan fails to comport with constitutional or statutory requirements. This principle was only recently confirmed by the Supreme Court in Upham v. Seamon, - U.S. -, -, 102 S.Ct. 1518, 1521, 71 L.Ed.2d 725 (1982). It was the judgment of the district court in this case and the majority of this panel that the appellees have adequately made a prima facie showing that the original 9-6 composition enacted by the Board of Commissioners of Cook County (“Board”) failed to satisfy constitutional requirements. To that I cannot agree.
The only evidence in this case of a constitutional violation is the 4.22% total deviation. There is absolutely nothing in this record to suggest that the Board’s 1981 apportionment plan was designed to favor the city population over the suburban. The issue here really comes down to the question as to whether the 4.22% deviation is of sufficient size as to fail to pass constitutional muster. As the majority opinion makes abundantly clear, no single percentage figure has been established as a concrete standard applicable in all cases. At 487. Violations of the Fourteenth Amendment do not hinge purely on numerical percentages. Each case must be examined “on the particular circumstances of the case.” Reynolds v. Sims, 377 U.S. 533, 578, 84 S.Ct. 1362, 1390, 12 L.Ed.2d 506 (1964).
I disagree with the majority that the deviation in this case was not de minimis. I interpret their reasoning to be that wherever a deviation can be reduced by modifying the apportionment plan, a prima facie showing of a constitutional violation has been made requiring the intervention of the court. I know of no authority for such a broad proposition. Mathematical equality, while certainly desirable and the ultimate objective, is not absolutely required. See Gaffney v. Cummings, 412 U.S. 735, 745, 93 S.Ct. 2321, 2327, 37 L.Ed.2d 298 (1973) (“We *489doubt that the Fourteenth Amendment requires repeated displacement of otherwise appropriate state decision-making in the name of essentially minor deviations from perfect census-population equality that no one, with confidence, can say will deprive any person of fair and effective representation in his state legislature.” Id. at 749, 93 S.Ct. at 2329). The relative ease by which a deviation can be reduced must be balanced against the important federal policy of respecting the Board’s reasonable judgment as to the proper and most effective size and make-up of its body. The district court cannot be allowed to simply substitute its own apportionment preferences for those of the Board. In Upham, the Supreme Court recently emphasized this consideration by quoting the following passage from White v. Weiser, 412 U.S. 783, 795, 93 S.Ct. 2348, 2354, 37 L.Ed.2d 335 (1973):
“From the beginning, we have recognized that ‘reapportionment is primarily a matter for legislative consideration and determination, and that judicial relief becomes appropriate only when a legislature fails to reapportion according to federal constitutional requisites in a timely fashion after having had an adequate opportunity to do so.’ We have adhered to the view that state legislatures have ‘primary jurisdiction’ over legislative reapportionment . . . Just as a federal district court, in the context of legislative reapportionment, should follow the policies and preferences of the State, as expressed in statutory and constitutional provisions or in the reapportionment plans proposed by the state legislature, whenever adherence to state policy does not detract from the requirements of the Federal Constitution, we hold that a district court should similarly honor state policies in the context of congressional reapportionment. In fashioning a reapportionment plan or in choosing among plans, a district court should not pre-empt the legislative task nor ‘intrude upon state policy any more than necessary.’ ”
- U.S. - -, 102 S.Ct. 1518-21, 71 L.Ed.2d 725. And in Gaffney, the Court stated:
Was the Master compelled, as a federal constitutional matter, to come up with a plan with smaller variations than were contained in appellees’ plans? And what is to happen to the Master’s plan if a resourceful mind hits upon a plan better than the Master’s by a fraction of a percentage point? Involvements like this must end at some point, but that point constantly recedes if those who litigate need only produce a plan that is marginally “better” when measured against a rigid and unyielding population-equality standard.
The point is, that such involvements should never begin. We have repeatedly recognized that state reapportionment is the task of local legislatures or of those organs of state government selected to perform it. Their work should not be invalidated under the Equal Protection Clause when only minor population variations among districts are proved.
412 U.S. at 750-51, 93 S.Ct. at 2330 (emphasis added).
In my opinion the majority has failed to adequately weigh this critical factor. Instead, only the ability to reduce the deviation is examined. In my view that is not enough. This decision fails to give adequate deference to the reasoned and good faith judgment of the Board and represents unjustified and unnecessary meddling by a federal court in the affairs of a local governmental body. While the district court and the majority consider the change in Board composition to be minor, I view it as a significant intrusion upon local governmental operations.
One other point should be briefly noted. Under the majority’s reasoning, the question must be asked why stop at a 10-7 Board with a 1.86% deviation. If the Board were increased to 11-8, the deviation would be reduced to zero. Under the majority’s position, there is no reason why such action should not now be taken.1
*490For these reasons, I would find the deviation to be de minimis and must, therefore, respectfully dissent.
. I also disagree with the majority’s rejection of the Board’s desire to remain at fifteen members as a sufficient justification for support of the 15 *490member Board. The size of any legislative body is an important element in the efficiency and effectiveness of its operations and the Board possesses every right to use it as a central element in its apportionment plan. Section 5(b) of the 1970 Illinois Constitution Transition Schedule provides that “the number of members .. . shall be fifteen except. ...” (emphasis added). The district court and majority change it to effectively read “at any number but no less than fifteen.” This change is a serious abuse of the provision’s purpose.