(dissenting).
I disagree with the majority opinion.
Its gist appears to be: Since this Court has never expressly determined and is unwilling to now hold that H.B. 1033 of the 1961 legislative session is unconstitutional, the State Election Board cannot refuse to accept filings by candidates for the House of Representatives without being in violation of certain election statutes; and to directly cope with the unconstitutional features of H.B. 1033 would invite or result in chaos and the end of orderly government.
The State Election Board seeks to justify its policy statement by asserting the invalidity of the 1961 Apportionment Act. The constitutionality of H.B. 1033 has been properly raised and challenged. I, therefore, believe that we must rule upon the constitutionality of H.B. 1033.
As to the constitutionality of H.B. 1033, I refer to my dissenting opinion in Jones v. Winters, Okl., 365 P.2d 357. Neither in Jones v. Freeman, 193 Okl. 554, 146 P.2d 564, nor in Romang v. Cordell, 206 Okl. 369, 243 P.2d 677, did this Court hold that it lacked discretionary powers to grant relief against an unconstitutional reapportionment statute. The Court merely chose not to exercise those powers.
In my opinion, the issues that must first be determined are: (1) Is H.B. 1033 unconstitutional? (2) If it is found unconstitutional, should this Court perpetuate the present state of defiance by the Legislature of the constitutional mandate? (3) Would our refusal to directly or indirectly sanction H.B. 1033 result in chaos and the end of State government? (4) Does H.B. 1033 violate the Fourteenth Amendment to the Federal Constitution? I shall discuss these questions in the sequence in which they stand posed.
(1) Is H.B. 1033 unconstitutional?
*154In Romang v. Cordell, supra, we stated at p. 679 of 243 P.2d:
“It is not necessary to here discuss, in detail or at length, the constitutionality of the act under consideration. It violates the provisions of Article V, section 10 of the Oklahoma Constitution in the same particulars and to approximately the same extent as the previous apportionment acts and is, therefore, subject to the same criticisms which were discussed thoroughly in the case of Jones v. Freeman, 193 Okl. 554, 146 P.2d 564, 573. In that opinion, this court pointed out, with particularity, the ‘principles, expressed or implied in the Constitution, (which) must be observed’ in order for an apportionment act to be constitutional. None of these were followed in the preparation and passage of the 1951 act. It would serve no useful purpose to here repeat them or the legal foundation upon which they rest.” (emphasis supplied)
In view of the unmistakable language quoted above, it is an exercise of semantics to now announce that this Court has not held the former apportionment acts unconstitutional but merely held them not to comply with the Constitution. To my way of thinking, this is similar to “Tweedledum and Tweedledee”. I feel that the constitutionality of H.B. 1033 is now before this Court and must be answered in unequivocal terms.
(2) If H.B. 1033 is unconstitutional, should we perpetuate it ?
The issues here are not the same as in the Jones and Romang cases. Never before has this Court been called upon to act affirmatively, by the issuance of a writ of mandamus, to compel the State Election Board to follow an apportionment act which the Court has determined to be out of harmony with the mandatory formula of the Constitution. In this respect I consider this case to be vastly different from Jones and Romang. In the cited cases, in which relief was denied, the Court simply desisted from interfering with legislation by inaction. In doing so, it pointed out that although it had the power to review it did not have the authority to reapportion, revise, or compel a legislative revision of the act. In the present case, the Court is called upon, in effect, to approve the legislative malapportionment by a direct and affirmative action in requiring the holding of an election thereunder. I know of no decision in which this situation confronted any court in the Nation, and I deem the distinction in this fact significant. While we may have wisely avoided interference with election processes in the past, we should not compel the holding of an election under an invalid act. The opinion of the majority in this case goes beyond mere failure to interfere. It places our power to review at a final resting place.
(3) Would chaos result in State Government?
I cannot conceive that our refusal to uphold H.B. 1033 would result in chaos and destruction of our State government. A similar or identical argument was advanced in Asbury Park Press, Inc. v. Woolley, 33 N.J. 1, 161 A.2d 705, 712, and was answered in this language:
“Some of the defendants suggest that to do so (strike the malapportionment act) would be to create chaos or anarchy, because no matter how long the filing of our mandate was withheld to permit the enactment of a curative law, the state government would be completely disrupted if the Legislature did not act within that time. Although we agree that if the 1941 act has become unconstitutional, resort could not be had to an apportionment act of an earlier vintage because any such measure would also be invalid by the same test, we do not believe that the allegedly feared result would ever come about. A judiciary, conscious of the sacrosanct quality of its oath of office to uphold the Constitution, cannot accept an in terrorem argument *155based, upon the notion that members of a coequal part of the government will not be just as respectful * * * of the obligations imposed by their similar oath. Any lesser faith on our part would be an unbecoming and unwarranted reflection on the Legislature.” (emphasis supplied)
I share the same confidence in the integrity and bona fides of our Legislature as did the New Jersey Court in the law-making body of that State. In the present cause, many solutions are advanced in the briefs, and in more than one of them I see constitutionally feasible methods and means of preventing chaos, anarchy and disruption of government. The premise of the majority opinion appears to be, that because our Legislature has brought about an impasse, the Constitution can be ignored. If this reasoning is correct, then I submit that we should overrule some of the prior decisions in order to preserve the Constitution.
(4) Does H.B. 1033 violate the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution?
I am firmly of the opinion that H.B. 1033 violates in its effect the Equal Protection Clause of the Fourteenth Amendment to the Federal Constitution. This issue may not be timely and properly raised; nor is the argument on rehearing supported by authority. But I disagree with the majority who hold that the question should not receive careful consideration on rehearing. In this important proceeding of general public interest, we should not attempt to hold the parties to the strict rules of practice which govern private litigation.
Neither the Federal Constitution nor the republican form of government guarantees to an individual elector the right to cast his vote on terms of absolute equality with other voters who reside in a different political district or area. The right, if any, is at best a matter of approximation. In this State we are, on principle, governed by a constitutional formula which is fair, equitable and non-discriminatory on its face. It effects a just, although not completely equal, distribution of representation between rural and urban electors, based upon a population basis. This constitutional formula has been ignored and disregarded by the Legislature for more than a score of years. Instead of following the mandate of the Constitution, the Legislature misapplied the constitutional formula and apportioned the State in a manner which, to my way of thinking, discriminates against a substantial majority of Oklahoma voters who are deprived of that ratio of representation which the law accords.
States are generally free to regulate the right of franchise. The Federal Constitution does not require an equal apportionment of state legislative districts. However, once a state does enact a constitution or a general statute, then its application must be without discrimination or disparities. See Asbury Park Press, Inc. v. Woolley, supra (p. 710 of 161 A.2d); Magraw v. Donovan, 159 F.Supp. 901 (D.C.Minn., 1958); Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891; Burns v. Ohio, 360 U.S. 252, 79 S.Ct. 1164, 3 L.Ed.2d 1209. H.B. 1033 is discriminatory both in text and in application.
It is true that in its past decisions, the U. S. Supreme Court has generally regarded questions concerning state election processes as “political” and outside of judicial cognizance. However, I do believe that the precise question here involved has never been decided by that Court, and I feel that we should proceed in this action with the determination of the Federal constitutional question. See Asbury Park Press, Inc., supra.
For the foregoing reasons, I respectfully dissent.