(dissenting).
Our concern here is not with the desirability as a matter of policy of a Senate which is controlled by a minority of voters, nor are we concerned with the extent of voter approval which resulted in adoption of Amendment No. 7. The issue for determination is whether the disparities described in the majority opinion, which will be further discussed here, are so substantial and irrational as to constitute invidious discrimination so *940as to violate the equal protection of the laws, Fourteenth Amendment of the Constitution of the United States.
Prior to the adoption of Amendment No. 7, and on August 10, 1962, this Court issued its per curiam opinion recognizing the equal protection clause as the criterion, finding gross disparities and holding the disparities to be of sufficient magnitude to make out a prima facie case of invidious discrimination. At the same time final adjudication was postponed pending a further hearing and because of the impendency of the election at which the competing measures were on the ballot. Subsequently, Amendment No. 7 was approved by a majority of the voters of the State. And so, the question is whether the gross disparities — invidious discrimination, was remedied by the adoption of Amendment No. 7; or whether the evidence at the trial showed the existence of a rational basis whereby the discriminations were no longer to be regarded as invidious.
Does Amendment No. 7 remedy the gross and glaring disparity in voting strength which is described and characterized in our prior opinion? Amendment No. 7 provides for a House of Representatives composed of sixty-five members from sixty-five districts which shall be as nearly equal in population as may be. This provision removed the population disparities which existed in the House of Representatives under the old law.1
In the Senate, Amendment No. 7 declares that the State shall be divided into thirty-nine senatorial districts, one senator from each district. It further declares that the apportionment of senators among the counties shall be the same as now provided by 63-1-3, Colorado Revised Statutes 1953. Four senators are added, or a total of thirty-nine, as compared with thirty-five under the old law, and one each of these additional senators is apportioned to Adams, Arapahoe, Boulder and Jefferson counties. Further, the amendment freezes the apportionment of the various districts except for a provision permitting a review of counties apportioned more than one senator following each federal census. It is thus apparent then that Amendment No. 7, while apportioning the House on a population basis, retains the old system, that which we previously condemned, except that it gives a senator for each of four populous metropolitan counties. It is clear, therefore, that no real effort has been made to cure the disparities which existed under the old law; on the contrary, these disparities are perpetuated by writing them into the Constitution of Colorado, the only relief being somewhat of a reduction of disparity in four of the sixty-three counties in the State.
The ultimate question is, therefore, the second one posed above, which is, whether the defendants and respondents have offered evidence establishing that the disparities are non-invidious.
Although a number of federal courts have now indicated that at least one house must be apportioned on a per capita basis2 there is little authority holding that the upper house may or may not be organized upon a wide disparity of population basis.3 It would appear that there is no logical basis for distinguishing between the lower and the upper house — that the equal protection clause applies to both since no valid analogy can be drawn between the United *941States Congress and the State. See Gray v. Sanders, 372 U.S. 368, 83 S.Ct. 801, 9 L.Ed.2d 821 (1963). So, until there is some authoritative ruling to the contrary, we must assume that equality of voting power is demanded with respect to both houses.
It is to be conceded that the Fourteenth Amendment does not require absolute equality. This is apparent from the opinion of Mr. Justice Douglas;4 in other words, some other factors may be taken into account. It would seem, however, that this is in recognition of the fact that perfect exactness as to the number of inhabitants of each electoral district is a practical impossibility.5 Beyond this, however, fairness requires that every individual be guaranteed the right to cast an effective vote.6
Although the Supreme Court in Gray v. Sanders, supra, did not have before it the present question, it nevertheless expressed the philosophy of non-dilution of the vote of the individual citizen. It extracted this philosophy not only from the Constitution, but from the history of the United States, and it is to be concluded therefrom that a properly apportioned state legislative body must at least approximate by bona fide attempt the creation of districts substantially related to population. In Sincock v. Duffy, 215 F.Supp. 169, it was said:
“Such affirmative action must be rendered possible and, as we have already indicated, an apportionment should not be permitted that would allow a blockage of major legislation desired by the great majority of electors of Delaware to come to pass in the Senate. Effecting the will of the majority of the people of a State must be deemed to be the foundation of any apportionment plan. * * ” [Emphasis supplied]
Even if we assume that the factors which have been given weight in the majority opinion are properly to be considered, nevertheless, the disparities which exist in Amendment No. 7 cannot be rationalized. Criteria such as were applied by the majority here were used in the case of W. M. C. A. Inc. v. Simon, (D.C.So.D.N.Y., 1962), 208 F.Supp. 368. Disparities in the New York law were relatively slight, New York City, for example, having 46 per cent, of the state’s population, was shown to have had 43.1 per cent, of the total number of senators. The ten most populous counties are shown to have had 65.5 per cent, control of the Senate. The factors approved in W. M. C. A., supra, for determining whether or not invidious discrimination existed, were the following:
“(1) Rationality of state policy and whether or not the system is arbitrary.
“(2) Whether or not the present complexion of the legislature has a[n] historical basis.
“(3) Whether there lies within the electorate of the State of New York any possible remedy (if gross inequalities exist.)
“(4) Geography, including accessibility of legislative representatives to their electors.
“(5) Whether the Court is called upon the invalidate solemnly enacted State Constitutions and laws.” 208 F.Supp. at 374.
Applying these factors, or tests in the present case, produces a result different from that which obtained in W. M. C. A.
1. Rational or Arbitrary?
Amendment No. 7 was not adopted upon a basis of recognizing geographic, topographic and economic differences. As shown above, Amendment No. 7 arbitrarily froze existing apportionment and at the same time furnished one additional senator to each of four populous metropolitan counties by writing into the Colo*942rado organic law disparities which had long existed and which we held were gross. It cannot be said that it was rational. The unpleasant truth is that it was particularly designed and dictated not by factual differences, but rather by political expediency. Simplicity and success at the polls overrode considerations of fairness and justice. Thus, Amendment No. 7 fails the test of rationality in its adoption.
2. Historic Factors.
The presence of an historical basis has been persuasive in a number of instances.7 We must be mindful of the fact however, that the present rash of reapportionment litigation is the result of an historical fact; namely, that the several states were in the past predominantly rural. The failure of legislative bodies to recognize population shifts and social changes has produced the present problem. So, therefore, the fact that legislative districts have historic significance has little value in determining what constitutes invidious discrimination. This is particularly true in Colorado, the character of which has substantially changed. The language contained in the opinion of the Court in Toombs v. Fortson (D.C.N.D.Ga., 1962), 205 F.Supp. 248, is pertinent:
“Applying these historical facts to the test of invidiousness, we are unable to discern any justification for continuing this system merely because it has an historical basis in Georgia’s political institutions. This is so, primarily, because while historically the statute and constitutional requirements remain substantially the same, the passage of time and changing living habits of the people have distorted' it into something entirely different from what it was at its genesis.”
It is difficult to see how history can be of value other than for an explanation of disparities — it can not justify them.
3. Alternative Remedies.
The majority were impressed by the argument that the initiative in Colorado is relatively easy so that the voters could readily change the Constitution if the inequities became oppressive. Here again, it is of little consolation to an individual voter who is being deprived of his rights that he can start a popular movement to change the Constitution. This possible remedy is not merely questionable, it is for practical purposes impossible. This was recognized by the United States District Court for the District of Nebraska in League of Nebraska Municipalities v. Marsh, (D.C.D.Nebr., 1962) 209 F.Supp. 189, where it was said:
“To say that such a remedy is adequate for one ordinary voter, and we are here concerned with the rights of an individual voter, for concededly one ordinary voter could maintain this action, is being impractical. In addition, the expense of putting an initated proposal on the ballot in Nebraska is prohibitive for the ordinary voter.”
4. Geography and Economics.8
Much emphasis is placed on Colorado’s heterogeneous topography, sparce settlement of mountainous areas, inaccessibility of some communities, and the great distances as justifying the disproportion. In order to soften the impact resulting from population disparities in the districts, the opinion makes comparisons of various regions rather than comparisons of senatorial districts. Such realignment is not, of course, valid, but even this approach shows disparities which are gross and glaring. The majority’s Western Region has on the average *943a population of 28,480 per senator as against the South Central’s 22,185 and the East Slope’s 57,283.9 Since disparities of 2-to-l and 2%-to-l are sufficiently substantial as to be invidious this glossing, or cloaking and juggling of districts technique fails to camouflage the facts and does not diminish the disproportion. The case could be different if the framers had developed the scheme of Amendment No. 7 as a preconceived plan — part of a good faith effort to balance off these geographic factors. Such is not the case. Instead, Amendment No. 7 is the product of a mechanical and arbitrary freezing accomplished by adoption, with slight modification, of the unlawful alignments which had existed in the previous statute. 10
The tendered explanation for a 3.6-to-1 and sometimes 3-to-l, and often 2-to-1 disparity between voting strength on the ground that "in no other way may representation be afforded to insular minorities,” carries little weight when considered in the light of modern methods of electronic communication, modem highways, automobiles and airplanes. When a man had to ride on horseback from his constituency to the capital, or to settlements'within his district, there might have been valid basis for the geographic factors which are here weighted so heavily. Under the circumstances of the present there can be but little consideration given to this geographic factor. Distances as the crow flies now have little relevance in formulating electoral districts.
Economics has also been given great weight by the majority. The practical difficulties in giving effect to economic factors are mentioned in Moss v. Burk-hart, 207 F.Supp. 885 (Appendix). The major difficulty is that the economic institutions in a dynamic society change rapidly. Certain industries, such as mining in Colorado, rise and fall in a few short years and political institutions must be devised to withstand the ravages of time and change. It is foolish to say that because an area sustained a substantial mining industry at some previous time, it deserves greater representation today; or, because one area has cattle or a surplus of water, that it deserves greater representation. The folly of this kind of reasoning is at once apparent. Governments are devised to arrange the affairs of men. Economic interests are remarkably well represented without special representation. It is dangerous to build into a political system a favored position for a segment of the population of the state. There exists no practical method of ridding ourselves of them, and long after the institutions pass, the built-in advantage remains even though it is at last only a vestige of the dead past11
5. Whether solemnly enacted state laws must be invalidated.
There is, of course, a presumption of validity which attaches to any enactment, and the presumption is undoubtedly stronger when the law is a constitutional amendment adopted by vote of the people. This presumption does not, however, have the strength attributed to it by the majority when it says:
“The plaintiffs rest their case on the argument that the apportionment of the Senate by Amendment No. 7 is arbitrary, invidiously discriminatory, and without any rationality. The voters of Colorado have themselves answered these charges. * * * >»
And again, they say:
“* * * The actions of the electorate are material to the application of the criteria. The contention that the voters have discriminated against themselves appalls rather than convinces. * * * ”
And finally:
“The electorate of every county from which the plaintiffs come pre*944ferred Amendment No. 7. In the circumstances it is difficult to comprehend how the plaintiffs can sue to vindicate a public right. * * * ”
The protection of constitutional rights is not to be approached either pragmatically or expediently, and though the fact of enactment of a constitutional provision by heavy vote of the electorate produces pause and generates restraint we can not, true to our oath, uphold such legislation in the face of palpable infringement of rights. Thus, state racial legislation would unquestionably enjoy overwhelming electorate approval in certain of our states, yet no one would argue that this factor could compensate for manifest inequality. It is too clear for argument that constitutional law is not a matter of majority vote.12 Indeed, the entire philosophy of the Fourteenth Amendment teaches that it is personal rights which are to be protected against the will of the majority.13 The rights which are here asserted are the rights of the individual plaintiffs to have their votes counted equally with those of other voters. This factor the majority seems to have lost sight of. The opinion even refuses to recognize that the equal protection clause is the applicable standard when it declares:
“ * * * [b]y majority process the voters have said that minority process in the Senate is what they want.”
The opinion in still another place states:
“If we reject the republican form of government standard as a basis for judicial action, we are left with the Due Process Clause to support an assertion of denial of equal protection upon the theory that unequal representation denies equal protection because minority process is not due process.”
This confusion of the equal protection and due process clauses, plus lamenting the fact that the republican form of government is not the test, must be attributed to a desire and a search for a more flexible basis. The fact is that the equal protection and due process clauses of the Fourteenth Amendment are not coextensive and coterminous.14 The equal protection clause is an independent limitation on state action which is in no way dependent upon the due process clause. It is straightforward and exacting in its requirements that the rights of all citizens shall be equated upon an equal scale under the law; laws which grant preferences are thus repugnant. It is impossible to justify substantial differences between voting rights accorded to voters who live in the mountains, for example, as opposed to those who reside in the cities, and any attempts to rationalize on the basis of geography, sociology or economics will, as has been shown above, necessarily rest upon the subjective evaluation of the minds which attempt the rationalization. Moreover, to say that a majority of the voters today indicate a desire to be governed by a minority, is to avoid the issue which this court is asked to resolve. It is no answer to say that the approval of the polling place necessarily evidences a rational plan. The plaintiffs have a right to expect that the cause will be determined in relation to the standards of equal protection. Utilization of other or different standards denies them full measure of justice.
I do not say that a rational plan can not be devised which is not based upon strict numerical equality. It is enough to say that the instant plan, with its gross and glaring inequalities, is not based upon a rational formula or upon any formula which is apparent. Moreover, a plan which builds into the state organic law senatorial districts which are designed to be static in perpetuity, regardless of population changes, is *945doomed to obsolescence before it becomes effective.
Amendment No. 7 violates the Constitution of the United States and is, therefore, invalid and void. Amended Section 46 of Amendment No. 7, which redistricts the House of Representatives, can not be severed from Amended Section 46, and hence the entire Amendment is void. I would so hold.
. 63-1-2, 63-1-6, Colorado Revised Statutes 1953.
. Toombs v. Fortson, (D.C.N.D.Ga., 1962) . 205 F.Supp. 248; Baker v. Carr, (D.C. M.D.Tenn., 1962) 206 F.Supp. 341; Sims v. Frink, (D.C.M.D.Ala., N.D.1962) 205 F.Supp. 245; Caesar v. Williams, (1962) . 84 Idaho 254, 371 P.2d 241; Sincock v. Duffy, (D.C.D.Del., 1963) 215 F.Supp. 169.
. Schollo v. Hare, 367 Mich. 176, 116 N.W.2d 350 (1962), holding a statute which gave citizens of one district twice the voting strength of citizens of another district while voting for the State Senate to be invidiously discriminatory. See also Thigpen v. Meyers, (D.C.W.D.Wash., N.D.1962) 211 F.Supp. 826, and Sincock T. Duffy, supra.
. Baker v. Carr, supra.
. See, for example, State ex rel. Lein v. Sathre, 113 N.W.2d 679, (N.Dak., 1962); Wisconsin y. Zimmerman, 209 F.Supp. 183 (D.C.W.D.Wis., 1962).
. Moss v. Burkhart, 207 F.Supp. 885 (W.D.Okl., 1962); Thigpen y. Meyers, supra.
. W. M. C. A. Inc. v. Simon (D.C.So.D.N.Y., 1902), 208 F.Supp. 368; Maryland Committee for Fair Representation, et al. v. Tawes, 229 Md. 406, 184 A.2d 715 (1962); Sobel v. Adams, (D.C.S.D.Fla., 1963) 214 F.Supp. 811.
. (Although, economics have not been considered as a factor in W. M. C. A. v. Simon, supra, the majority opinion has stressed it and it is undoubtedly to be considered.)
. See Exhibit “C” of the majority opinion.
. (Cf. Scholle v. Hare, supra, -wherein the amalgamation of contiguous counties supposedly having similar interests, -was -without serious regard for population differences between districts. ■ This was condemned.)
. (See Moss v. Burkhart, supra.)
. (Moss v. Burkhart, supra, and Thigpen v. Meyers, cited supra.)
. Baker v. Carr (D.C.M.D.Tenn., 1962), 206 F.Supp. 341; Sincock v. Duffy (D.C.D.Del., 1963), 215 F.Supp. 169; Brunson v. Board of Trustees of School District No. 1 (D.C.E.D.So.Car., 1962) 30 F.R..D. 369.
. Bolling v. Sharpe, 347 U.S. 497, 74 S.Ct. 693, 98 L.Ed. 884.