concurring in part and dissenting in part.
I concur in the judgment and reasoning of the court with regard to the challenge based on noncontiguity, but I dissent vigorously from the court’s conclusion that disenfranchisement of voters moved from even-numbered to odd-numbered districts is not unconstitutional.
The right to vote is central and fundamental in our system of government. As the United States Supreme Court has stated, “In decision after decision, this Court has made clear that a citizen has a constitutionally protected right to participate in elections on an equal basis with other citizens in the jurisdiction.” Dunn v. Blumstein, 405 U.S. 330, 336, 92 S.Ct. 995, 1000, 31 L.Ed.2d 274, 280 (1972). This is because
The right of suffrage is a fundamental matter in a free and democratic society. [T]he right to exercise the franchise in a free and unimpaired manner is preservative of other basic civil and political rights . . . . Almost a century ago, in Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 .. . the Court referred to “the political franchise of voting” as “a fundamental political right, because preservative of all rights.”
Reynolds v. Sims, 377 U.S. 533, 561-62, 84 S.Ct. 1362, 1381, 12 L.Ed.2d 506, 527 (1964). Moreover, the right to vote for representatives in legislative bodies is especially precious if our governmental theory that citizens speak through their chosen representatives is to have any meaning. There can be no question, however, that the reapportionment plan provided by Tennessee Code Annotated section 3-1-102 deprives some citizens of their right to vote for such representatives.
Under Tennessee’s Constitution, Article two, Section three, voters in even-numbered districts last voted for state senator in 1976 and will vote again in 1980; voters in odd-numbered districts voted in 1978 and will vote again in 1982. Those voters shifted from even-numbered to odd-numbered districts last voted for state senator in 1976 and will not be allowed to cast their ballots for that office again until 1982. Thus, while most voters are entitled to vote in state senatorial elections once every four years, these voters, solely because of where they live, must wait six years. They have been moved to districts of senators in whose elections they could not vote in 1978, and yet the 1980 elections may result in the replacement of senators in whose elections they were entitled to participate in 1976. As a result, these voters will be virtually without representation for the next two years. This, it seems to me, is an unconstitutional denial of the right to vote, even though only two years in duration, cf. Dunn v. Blumstein, supra (one-year durational residency requirement as condition of voter registration held unconstitutional); this is especially true since these voters are being discriminated against solely on the basis of the geographic location of their residences, which, in my opinion, violates the elemental holding of Reynolds v. Sims, supra. Furthermore, since this is an outright denial of the right to vote rather than a “dilution” of that right, I believe that the current reapportionment plan suffers from a more serious constitutional infirmity than that in Reynolds. Therefore, unlike the majority, I do not believe that the near mathematical perfection of this plan cures the problems raised by plaintiffs in the motion for further relief.
In support of their position that no constitutional violation is present in this case, defendants cite, and the majority relies upon, Pate v. El Paso County, 337 F.Supp. 95 (W.D.Tex.), aff’d mem., 400 U.S. 806, 91 S.Ct. 55, 27 L.Ed.2d 38 (1970). There, plaintiff sought reapportionment of the four commission districts in El Paso County. When the court ordered such reapportion*238ment to be made, plaintiffs further claimed that because the Texas Constitution required county commissioners to be elected for staggered four-year terms, voters shifted from one district to another in order to achieve more equal population among the districts would be denied the right to vote, a claim facially identical to that made in the case sub judice. The three-judge court held that plaintiffs’ contention was without merit. According to the court, a state may classify voters and may regulate the exercise of the right to vote on such terms as it chooses as long as there is no arbitrary or invidious discrimination. The court reasoned that the state constitutional provision for staggered commissioners’ terms did not effectuate a deprivation of the right to vote, but merely regulated the timing of the exercise of that right, and that such regulation was reasonable and non-discriminatory.
Certainly, if apportionment plans were unchanging, the provision for staggered elections would be eminently reasonable and non-discriminatory. What the Pate court did not adequately explain is why the postponement of some voters’ rights to participate in those elections is not unconstitutional when all other voters are permitted to vote every four years without additional postponement. The reapportionment in this case creates a system in which all senators are elected for four-year terms, in which most voters are entitled to participate in senatorial elections once every four years, but in which some voters are allowed to vote only once in six years. Such a system clearly denies the rights of these latter voters “to participate in elections on an equal basis with other citizens in the jurisdiction.” Dunn v. Blumstein, supra, 405 U.S. at 336, 92 S.Ct. at 1000, 31 L.Ed.2d at 280.
Under the equal protection clause, denial of the right to vote is “unconstitutional unless the State can demonstrate that [it is] ‘necessary to promote a compelling governmental interest.’ ” Dunn v. Blumstein, supra, 405 U.S. at 342, 92 S.Ct. at 1003, 31 L.Ed.2d at 284 (emphasis in original). The State seeks to justify this deprivation by stating that it is an unavoidable byproduct of developing a constitutional scheme of apportionment. Clearly, if this were a case in which a reapportionment plan complying with Reynolds v. Sims, supra, but nonetheless causing disenfranchisement, had been enacted following a decennial census, no violation of equal protection would be present. Ferrell v. Oklahoma, 339 F.Supp. 73, 82 (W.D.Okla.), aff’d mem. sub nom. Ferrell v. Hall, 406 U.S. 939, 92 S.Ct. 2045, 32 L.Ed.2d 328 (1972) (challenge against reapportionment plan passed immediately after a decennial census). Accord, Carr v. Brazoria County, 341 F.Supp. 155 (S.D.Tex. 1972); Pate v. El Paso County, 337 F.Supp. 95 (W.D.Tex.), aff’d mem., 400 U.S. 806, 91 S.Ct. 55, 27 L.Ed.2d 38, 91 S.Ct. 55 (1972).1 *239Here, however, voters are not being disenfranchised because of the operation of a system in which reapportionment occurs once each ten years following a census; these voters are being deprived of the right to vote by a reapportionment plan that was required because of the General Assembly’s deliberate, unconstitutional act of apportioning senate districts in 1973 with an 18.03% deviation.2 But for the deliberate, unconstitutional act of defendants, a constitutional plan of apportionment would have been adopted in 1973, and these voters would not now be disenfranchised. The State cannot be heard to say that this denial of the right to vote is “necessary to promote [the] compelling governmental interest” of constitutionally apportioning the state senate.
The evil of this practice is highlighted by reviewing the history of the past decade. Prior to the 1972 elections, the General Assembly passed two plans of apportionment, both of which were held unconstitutional in Kopald v. Carr, 343 F.Supp. 51 (M.D.Tenn. 1972). The court modified one of those plans to be used in the 1972 elections and ordered the legislature to enact a new plan thereafter. The legislature in 1973 adopted the plan successfully challenged in an earlier phase of this lawsuit. Districts in Shelby County were subsequently modified by the legislature, and that amendment was held unconstitutional in Brawner v. Crowell, 434 F.Supp. 1119 (W.D.Tenn.1977). For most districts, the 1979 reapportionment is the third different plan pursuant to which senatorial elections have been held this decade. For some districts there have been more. Evidence in the record shows that due to the shifting sands of legislatively drawn district lines, some voters in Lincoln County have voted for state senator only once in eight years. See Stipulation of House Debate, at 4-5 (filed Mar. 14, 1980). In light of this history, the conclusion is inescapable that disenfranchisement of voters under the 1979 plan is not necessary to promote a compelling state interest. That interest could have been satisfied by a single constitutional reapportionment plan enacted to equalize districts following the 1970 census. Since the constitution allows no more than that, the facts of this case clearly show a violation of the equal protection clause.
Had the parties not insisted that it would not be possible to shift voters in even-numbered districts only to other even-numbered districts, I would have ordered the legislature to produce a plan that did just that, disenfranchising no one, yet remaining within the parameters of constitutional population variances as allowed by Gaffney v. Cummings, 412 U.S. 735, 93 S.Ct. 2321, 37 L.Ed.2d 298 (1973), and Mahan v. Howell, 410 U.S. 315, 93 S.Ct. 979, 35 L.Ed.2d 320 (1973). Such a solution would have been much less disruptive of the operation of state government than ordering defendants to hold elections for all thirty-three senate seats. There is, however, precedent for the latter remedy, see, e. g., Chavis v. Whitcomb, 307 F.Supp. 1362, 1367 (S.D.Ind.1969), rev’d on other grounds, Whitcomb v. Chavis, 403 U.S. 124, 29 L.Ed.2d 363, 91 S.Ct. 1858 (1970); Developments in the Law— Elections, 88 Harv.L.Rev. 1111, 1337 and n. 220 (1975), and because of the history of reapportionment in Tennessee, I would order it if necessary. Disenfranchisement, however, has not occurred in all odd-numbered districts. See Stipulation Regarding Areas Moved From Even Numbered Districts to Odd Numbered Districts (filed Mar. 14, 1980). Therefore, the most efficacious yet least intrusive remedy, in my view, would be to order elections in all odd-numbered districts containing voters moved from even-numbered districts.
. The Carr and Pate decisions, unlike the Ferrell case, did not involve a constitutional challenge to a reapportionment plan adopted after a decennial census. Instead, the reapportionments of county commissions in those cases were precipitated by the United States Supreme Court’s decision in Avery v. Midland County, 390 U.S. 474, 88 S.Ct. 1114, 20 L.Ed.2d 45 (1968), in which counties were for the first time held subject to the “one person, one vote” principle of Reynolds v. Sims, supra. Although the disenfranchisement of voters in those cases resulted from reapportionment plans required in order to correct past malapportionment, the situation in the case at bar is distinguishable. Prior to Avery, the malapportionment of the county commissions at issue in Carr and Pate was due not to deliberate disregard of the dictates of Reynolds v. Sims, supra, but presumably to bona fide belief that population equality was not required; the reapportionments in those cases, then, were necessary to bring the county commissions into compliance with the new constitutional rule. In contrast, the malapportionment of Tennessee senatorial districts under the 1973 plan resulted indisputably from the deliberate disregard of Supreme Court reapportionment cases; the reapportionment ordered by this court on January 15, 1979, with its attendant disenfranchisement of voters was necessary to undo the deliberate, unconstitutional acts of defendants. It is the deliberate and knowing unconstitutionality of defendants’ 1973 reapportionment that distinguishes this case from Carr and Pate. Therefore, the resulting disenfranchisement in the latter cases should be treated more like the disenfranchisement that results from constitutional reapportionment following a decennial census, than like the instant case.
. It is true that plaintiffs submitted no evidence that the Tennessee General Assembly willfully malapportioned the state senate in 1973. Considering the history of legislative reapportionment in Tennessee during the last decade, however, see discussion in text, infra, any attempt by defendants to prove that the malapportionment was not willful would have been absurd.