(dissenting).
The hearing before this three-judge court was held four days prior to the filing deadline for candidates seeking election to the United States House of Representatives. Although the defendants had filed a motion for summary judgment on the day of the hearing, argument before the Court was limited to the defendants’ motion to dismiss.
The majority correctly rejects the allegations of plaintiff Pereira who asserts the Congressional districts were unconstitutionally drawn because the location of the district perimeters was motivated by partisan political considerations. However, in Wendler v. Stone plaintiffs asserted at the hearing that their complaint was not based on a charge of partisan political gerrymandering but, rather, that there was a constitutionally impermissible gerrymander based upon drawing boundary lines so that (1) it constitutes invidious discrimination against the residents of recognizable and identifiable political, economic, and ethnic groups; (2) it discriminates against the residents of the cities of Miami, Miami Beach, Hialeah and Coral Gables by dividing these political subdivisions unnecessarily; and (3) the districts are neither compact nor contiguous.
Stripped of its allegations of partisan political gerrymandering, Pereira’s suit also charges in paragraph 10 that the cities of Coral Gables and Miami Beach were arbitrarily divided by the legislature in drawing the boundary lines between the Fourteenth and Fifteenth Congressional Districts.
I concur with the majority opinion there is no constitutional standard to support Wendler’s first claim that residents of “ [recognizable and] identifiable political, economic, and ethnic groups” have been invidiously discriminated against by the redistricting plan. Whitcomb v. Chavis, 403 U.S. 124, 91 S.Ct. 1858, 29 L.Ed.2d 363 (1971). But see *842Howard v. Adams County, 453 F.2d 455 at 457 (5th Cir. 1972).
In both cases plaintiffs claimed a constitutionally impermissible gerrymander based upon the unnecessary division of cities within Dade County, Florida. Only Wendler’s complaint assails the division of the cities of Miami and Hialeah between the Thirteenth and Fourteenth Congressional Districts, but both complaints attack the division of the cities of Miami Beach and Coral Gables in arriving at the boundary lines between the Fourteenth and the Fifteenth Congressional Districts. The latter district is the southernmost in the state and basically comprises the Florida Keys and the southern portion of Dade County. Plaintiff Pereira alleges that 60 percent of the population (namely, 15,500 voters) of the city of Coral Gables, which lies south of Miami, was moved north of the boundary line between the two districts while 50 percent (21,000 registered voters) of the population of Miami Beach was severed from the remainder of the city and brought south and west into the Fifteenth Congressional District.
The south half of Miami Beach is contiguous with the rest of the Fifteenth Congressional District only by crossing Biscayne Bay and only by means of the inclusion of a narrow strip of land on the west bank of Biscayne Bay until the district widens into its larger geographical base on the South Florida mainland. Judicial notice1 may be taken of the fact that Miami Beach basically occupies a narrow island and is separated from every other city by water with the exception of a one-half mile boundary line at its northern end, which it shares with the city of Surfside.
There is no claim of mathematical disparity among the voters of the districts. Relying on Kirkpatrick v. Preisler, 394 U.S. 526, 89 S.Ct. 1225, 22 L.Ed.2d 519 (1969), defendants assert that mathematical precision in the distribution of population in the district obviates a charge of constitutionally impermissible gerrymandering. Among the many bases given by the State of Missouri in Kirkpatrick for not having achieved numerical parity among its Congressional districts was the desire to maintain the integrity of certain political subdivisions, namely, county lines. However, the Court in Kirkpatrick rejected the Congressional redistricting plan solely because it did not afford numerical parity to the districts. Defendants apparently feel that once mathematical precision has been achieved in allocating the population among the districts, the redistricting is immune from attack.
The Supreme Court has never gone that far. In Kirkpatrick it noted that the State of Missouri admitted that it could have transferred “entire political subdivisions of known population between contiguous districts” and that this “would have produced districts much closer to numerical equality.” Id. at 531, 89 S.Ct. at 1229.
Early in this decade of cases on reapportionment and redistricting plans, the Supreme Court in Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964) (legislative reapportionment), stated:
Indiscriminate districting, without any regard for political subdivision or natural or historical boundary lines, may be little more than an open invitation to partisan gerrymandering. Id. at 578, 84 S.Ct. at 1390.
Recently, in an apportionment decision involving a county board of supervisors, the Supreme Court rejected a challenge to an apportionment plan which maintained the boundary line integrity of the five constituent towns and allocated members of the board to the towns despite a total deviation of 11.9 percent *843from numerical equality in the apportionment plan. Abate v. Mundt, 403 U.S. 182, 91 S.Ct. 1904, 29 L.Ed.2d 399 (1971).
Presumably, the Supreme Court views gerrymandering as a justiciable question since the holding in Wright v. Rockefeller, 376 U.S. 52, 84 S.Ct. 603, 11 L.Ed.2d 512 (1964), was based solely upon an absence of proof. See also Wells v. Rockefeller, 311 F.Supp. 48 (S.D.N.Y.1970).2 The motion to dismiss with prejudice should not be granted as to this claim in either case.
Moving to the third claim, Wendler’s assertion in Count I that Article 1, § 2 of the Constitution requires Congressional districts to be compact and contiguous is without substance.
However, Wendler asserts in Count II that the equal protection clause of the Fourteenth Amendment requires Congressional districts to be compact and contiguous. The Supreme Court has affirmed a lower court which ordered a legislature to draw the district boundaries not only to be numerically equal, but compact and contiguous as well. Wells v. Rockefeller, 273 F.Supp. 984, 991 (S.D.N.Y.1967); aff’d per curiam, 389 U.S. 421, 88 S.Ct. 578, 19 L.Ed.2d 651 (1967). One three-judge court held a redistricting plan constitutionally invalid both on the basis of lack of compactness and contiguity and a failure to achieve numerical parity. Drum v. Seawell, 250 F.Supp. 922, 925 (M.D.N.C.1966). See also the dissenting opinion in Wells v. Rockefeller, 311 F.Supp. 48, 56 (S.D.N.Y.1970), which held that a justiciable question was presented by the claim that the districts lacked compactness and contiguity. Id. at 55 and 56. Various legal scholars have asserted there should be a requirement of compact and contiguous districts.3
Plaintiff Wendler has asserted a substantial constitutional question on the issue of compactness and contiguity. Regardless of how difficult it may be for plaintiffs to muster sufficient proof to support the allegations of their complaint, defendants’ motion to dismiss with prejudice should not be granted at this juncture.
The Supreme Court and the lower Federal Courts have shied from entering the political thicket and have rejected contentions of impermissible gerrymandering when there was a lack of a plainly discernible bench mark. For example, the Supreme Court has accepted numerical parity among the districts as a constitutional standard and the matter of parity is a mathematically easy one to determine. At the other extreme, the courts have rejected the claims of gerrymandering on a partisan, political basis or the claims of discriminating against economic, or social, or ethnic groups because it is virtually impossible to focus upon a discernible standard in these areas.
Discernible standards do exist in the claim that the districts are not compact *844and contiguous4 and in the claim that there was an unnecessary and arbitrary subdividing of political subdivisions, especially cities. In this case there is an intertwining of these claims.
Although the factor of time required a quick decision of this matter prior to the filing deadline for the 1972 Congressional election, this Congressional redistricting plan presumably will be with us for the next ten years. Consequently, I must respectfully dissent from the view of the majority in granting defendants’ motion to dismiss without permitting plaintiffs to amend their pleadings further.
. There is a regrettable paucity of documentation in the record. Plaintiffs had exhibits with them at the hearing but none were introduced in view of the limited question considered and the court’s announced ruling.
. The majority opinion in Wells v. Rockefeller obviously holds that a charge of political gerrymandering presents a justiciable question. The dissenting opinion points this out and rejects the holding of the majority but goes on to find that a justiciable question is presented by the claim that the districts lack compactness and contiguity. 311 F.Supp. at 55 and 56, respectively.
. Hon. Emmanuel Celler, Congressional Apportionment —-Past, Present and Future, 17 Law & Contemp.Prob. 268 (1952); Weaver & Hess, A Procedure for Non-partisan Districting: Development of Computer Techniques, 73 Yale L.J. 288, 300 et seq. (1963); and McKay, The Reapportionment Decisions: Retrospect and Prospect, 51 A.B.A.J. 133 (1965), Edwards, The Gerrymander and “One Man, One Vote”, 46 N.Y.U.L.R. 879 (1971). This requirement is embraced by many state constitutions as well. See Edwards, Index Digest of State Constitutions (2d ed. 1959). Additionally The Reapportionment Act of 1901, 31 Stat. 734 (1901), specifically required Congressional districts to be contiguous, compact and contain, as nearly as practicable, an equal number of inhabitants. These requirements were continued in The Act of 1911, 37 Stat. 13 (1911) but were dropped in subsequent enactments. The pres*844ent law is found at 46 Stat. 26 (1929), as amended 2 U.S.C. § 2a (1958); see generally Wood v. Broom, 287 U.S. 1, 7, 53 S.Ct. 1, 77 L.Ed. 131 (1932).
. See various formulae for measuring compactness in the articles listed in n. 3 and in the dissenting opinion, Wells v. Rockefeller, 311 F.Supp. at 57.