(dissenting).
At the time the Court’s opinion was filed, I noted my dissent and reserved the right "to make further expression as soon as time became available to me to do so.
I engage in this expression, not in any commendation of the reapportionment *362plan which is involved, but simply to indicate my doubt that it is so lacking in rationality or is of such unfairness realistically as to require it to be held a constitutionally impermissible job and result. Entertaining doubt as I do that the Legislature’s action is clearly unconstitutional, I should be lacking in judicial responsibility if I voted to declare it so.
We were all without any doubt that the previous reapportionment plan was fundamentally invalid, since it made land acreage or area a substantial factor of representational basis and weight of voting rights. The present plan has made increase in the number of legislative districts from 49 to 50, and it has engaged in territorial realignments so that population adjustments have occurred in 28 of the former 49 districts.
These have been adjustments both of increase and reduction. For example, what is now District No. 18 has had its population increased from 22,030 to 27,813, and District No. 1 has had its population reduced from 34,639 to 28,359. Similarly, as to the districts in which no territorial change has been made, these again have not been population divisions of a single class, as being either all above or all below [some of each kind are involved] the 28,226 number of which the mean or “ideal” district for a 50-seat Nebraska Legislature would consist, on a strictly mathematical basis.
What’ I am noting in relation to this is that the Legislature has chosen to make its structure consist of 50 members, as it had the right to do under Sec. 6 of Art. Ill of the Nebraska Constitution; that in setting up districts to provide for this structure, it has engaged in taking single counties and groups of contiguous counties so as to keep all districts within county lines; that this has been done, as the legislative history shows, because of the opinion of the Attorney General of the State that if it did not adhere to county lines it would be violating the provisions of Sec. 5 of Art. Ill of the Nebraska Constitution; and that insofar as its action is entitled to be based upon these aspects and considerations, the job and result are probably as close in representational division as it is practicably possible to come [there has been no demonstration to the contrary].
I should not, of course, expect the members of a Legislature to be without a personal concern about what a reapportionment plan would do to them. I do not believe, however, that it is entitled to be found that the primary motive and purpose of the plan before us have been to facilitate keeping present members in office and to provide boundaries that would avoid their having to contest with each other at the polls. There is implicit in the choice of a 50-member structure over one of 39 or 40 a rationality that extends beyond a possible element of self-interest and that is entitled to recognition accordingly. In the vast volume of bills which the single-chambered Nebraska Legislature has been called upon to process in its last sessions, I can readily understand its desire and need to have more than 39 members to carry the heavy load of essential committee work. And I should be willing to predict that on this basis it is not likely to come forth with a 39 or 40-member structure, in whatever effort it may further engage to formulate a reapportionment plan.
But I do not regard these aspects of any particular significance here. Whether the reapportionment plan involved is invalid must, I think, be resolved on the basis of its representational results, examined in relation to any margins of flexibility or variance allowed existence on the basis of state policy, and with the situation then weighed in its whole as a question of whether there is such lack of rationality or such gross unfairness, on extent, basis or consequence of classes created, as to require a holding of general invidious discrimination.
This is at least where Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663, began. Thus the Court’s opinion stated: “Judicial standards under the Equal Protection Clause are well developed and familiar, and it has been open to courts since the enactment of the Fourteenth Amendment to determine, if on the par*363ticular facts they must, that a discrimination reflects no policy, but simply arbitrary and capricious action”. 369 U.S. 226, 82 S.Ct. 715. And the concurring opinion of Mr. Justice Douglas emphasized: “Universal equality is not the test; there is room for weighting. * * ‘The prohibition of the Equal Protection Clause goes no further than the invidious discrimination’ ”, 369 U.S. 244-245, 82 S.Ct. 724. The concurring opinion of Mr. Justice Clark was similarly express in its declaration that a statutory discrimination will “not be set aside if any state of facts reasonably may be conceived to justify it. * * * Only where * * * the total picture reveals incommensurables of both magnitude and frequency can it be said that there is present an invidious discrimination”. 369 U.S. 253 and 260, 82 S.Ct. 729 and 733.
I am aware, of course, that the series of decisions, commencing with Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506, handed down in June 1964, are viewed by legalistic reapportionment enthusiasts as having left the question of discrimination a matter simply of mathematical computation, subject only to de minimis allowance in variation. This is, no doubt, what the slogan “One person, one vote” has come to imply in street interpretation. It is to be noted, however, that the Supreme Court made the observation in Lucas v. Forty-Fourth General Assembly of Colorado, 377 U.S. 713, 727, 730, 84 S.Ct. 1459, 1469, 1470, 12 L.Ed.2d 632, the last of the series of June 1964 reapportionment decisions, that a maximum population-variance ratio of approximately 1.7 to 1 between the most populous and least populous districts for the Colorado House of Representatives could prehaps arguably constitute an apportionment substantially on a population basis in its relation to the entire situation there involved. It added that “in determining whether a good-faith effort to establish districts substantially equal in population has been made, a court must necessarily consider a State’s legislative apportionment scheme as a whole”. The Court further took occasion to remind that in determining whether a good-faith effort to establish districts equal in population has been made, a court must necessarily consider a State’s legislative apportionment scheme as a whole. “Only after an evaluation of an apportionment plan in its totality can a court determine whether there has been sufficient compliance with the requisites of the Equal Protection Clause”. 377 U.S. 736, footnote 27, 84 S.Ct. 1473.
To me, there would seem to be a sound basis for recognizing a margin of population variance of some flexibility in order to allow a State to adhere to its policy of keeping legislative districts within county lines. The county has traditionally been the unit of the strongest and most immediate common ties (tax, road, school, welfare and other interests) in almost all of Nebraska. And what is sought by the voting right for electing legislators is ordinarily the obtaining of representation as to these interests or as to other group or class ties which have come to exist. Thus, as I have indicated, there properly can be room, it seems to me, for more than a mere nominal population variance between districts in allowing such composites to make their majority expression on this natural and compact basis.
When this law suit began, its theory and contention were held out to us as being that a voting imbalance had come to exist between urban and rural interests. Looking at the matter analytically, however, the fact is that Nebraska contains only 11 cities of over 10,000 population [merely three above 25,000] and only 13 more that are over the 5,000 mark. Scrutinizing the geographical location of the 13 eities in the 5,000 class and their status and relationship in the counties of which they are a part, it seems to me that most of them dominatingly have the same general interests as the rest of the county in their legislative concerns. The battle cry of urban-versus-rural representation would, with possibly two or three exceptions, be of faint voice as to them. *364Thus, if the urban-versus-rural issue has any substance as to reapportionment in Nebraska, I think it gets down to the 11 cities of over 10,000 population. On the basis of mean standard, the population of these cities would aggregately be entitled to vote for 20.5 representatives. The cities are parts of districts which elect 26 representatives. The seven largest of them constitute a majority of the population in each of the districts of which they are a part so that the election of the 22 representatives, which come from these districts, would be able to be controlled by them. With their power to control the election of 22 representatives as against a mean right otherwise to vote for only 20.5 representatives, they can hardly be said to have suffered invidious discrimination in legislative strength as a question of urban representation.
Looking at the other side of the question, on the representation of rural interest in such counties as Hall, Scotts Bluff and Dodge, which have a population over the mean but with an urban majority, I am sufficiently steeped in the facts of Nebraska life to feel certain that the excess-over-mean inhabitants of these single-county districts would not representationally desire to have a sliverjoinder made of them to some adjoining counties as against their present less-than-mean right to vote for a legislator from their own county. I might further say that I am equally sure that the approximately 2,000 excess above the mean which there are in each of the five Lancaster County Districts would similarly choose to allow their voting right and representational strength to remain as it is in preference to being tied to and having their lot cast with the residents of either Saunders, Seward or Saline County.
There are other practical considerations which enter into my lack of persuasion that the reapportionment plan is, on realistic viewing of its structural form and operational effect, invidiously discriminatory and hence unconstitutional. I shall, however, forego further discussion both for the sake of brevity and because this expression is not intended to serve any purpose beyond satisfying my own conscience. I therefore simply repeat that I am not persuaded that the plan is of such imbalance, as to constitute gross unfairness or invidious discrimination, as between urban and rural interests or between any other population groups, segments and classes. I would permit Nebraska to live with its plan until the 1970 census has been taken and reported, making the recognition thus accorded subject to the condition that the Legislature should at that time make re-examination of the situation, and that if it failed to engage in such a consideration application would be entitled to be made here for any relief to which the population number and distribution might then demonstrate a right.
I shall take the liberty of volunteering a word on the problem with which the Legislature is faced under the Court’s decision. Obviously, to maintain a 50-member body, county lines will have to be crossed in order to equalize population disparities. If the results are to be mechanically tested by arithmetical comparison, then there can be but slight room for any deviation, since it is, of course, possible to run political lines up the middle of an alley, down a quarter-section line, or meanderingly across hay fields and grazing lands. Thus, results can be produced which are numerically equal, absolutely or except minisculely. I had hoped that the problem of reapportionment would not get to this level, since ultimately, when the glamor has faded from the slogan “one person, one vote”, the citizen will ask whether what has been done for him has also provided him with fair representational opportunity.