Joining in the sound opinion of Judge KAESS, I would like to add some observations as part of my concurrence. The task of this panel is to determine how far we may or should go in telling the majority of the people of a sovereign state what they can and what they cannot do. It is now our burden to find that line beyond which we may not go without arrogating to ourselves functions and prerogatives that, in the scheme of our government, do not belong to us. The power to legislate is not solely possessed by the national Congress, or State legislatures, but may be exercised directly by the people when they adopt, amend, or repeal a constitution. We recognize at once that, since Marbury v. Madison, 5 U.S. (1 Cranch) 137, 2 L.Ed. 60, and Gibbons v. Ogden, 22 U.S. (9 Wheat) 1, 6 L.Ed. 23, it is no longer debatable that the Federal government, acting through its courts, may, within permissible limits, find illegal and strike down acts of legislatures which clearly offend the United States Constitution. We need here, however, to inquire how far today’s law has extended the reach of judicial veto power.
Foremost among current decisions on apportionment are Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663; Gray v. Sanders, 372 U.S. 368, 83 S.Ct. 801, 9 L.Ed.2d 821, and Wesberry v. Sanders, 84 S.Ct. 526 (1964). We believe that the decision we now make is consistent with these judicial landmarks. Baker v. Carr deals directly with the subject before us. Gray v. Sanders and Wesber-ry v. Sanders are not, in our view of controlling pertinence here. In Wesberry, Justice Black made clear that his qualified approval of the current “one man, one vote” slogan was limited to what he said was commanded by Article I, Section 2, of the United States Constitution.1 Wesberry deals exclusively with districts from which are chosen representatives to the United States Congress. In a footnote, Justice Black stated that, “We do not reach the arguments that the Georgia statute violates the Due Process, Equal Protection and Privileges and Immunities Clauses of the Fourteenth Amendment.” (84 S.Ct. 530.)
If the Wesberry decision controlled the ease at bar, we would be of the opinion that the “nearly as practicable” qualification to the “one man, one vote” principle would immunize the Michigan Constitution’s apportionment of House of Representative districts from judicial attack. For the decision now required of us, we need not consider whether its apportionment of the thirty-eight senatorial districts would stand against the “one man, one vote” test. We do not believe that it is subject to such test.
We look here to be informed by Baker v. Carr. No United States Supreme Court case has yet decided that a constitution adopted by the people of a State is subject to the same attack as the enactments of their respective State legislatures.2 Neither has the United States Supreme Court yet decided that a State will not hereafter be permitted to have either branch of its legislature apportioned other than on a strict population basis. For the decision we now malee, however, we assume that a State’s constitution is as vulnerable to judicial attack as the acts of its legislature.
Turning then to Baker v. Carr we do not read it as saying that the “one man, one vote” standard had to be followed by Michigan in adopting a formula for apportioning its senatorial seats. We think that its clear command goes no further than forbidding invidious discrimination *1002in a State apportionment plan. A court, concluding that a particular plan is invidiously discriminatory, may declare its unconstitutionality vis-a-vis the Fourteenth Amendment of the United States Constitution. Absent such vice, a plan may be constitutional even though considerations other than strict population may have been part of the motivation for its adoption. Out of the several opinions in Baker v. Carr, come such statements as:
“The traditional test under the Equal Protection Clause has been whether a State has made ‘an invidious discrimination,’ as it does when it selects ‘a particular race or nationalty for oppressive treatment.’ * * Universal equality is not the test; there is room for weighing. As we stated in Williamson v. Lee Optical Co., 348 U.S. 483, 489, 75 S.Ct. 461, 465, 99 L.Ed. 563. ‘The prohibition of the Equal Protection Clause goes no further than the invidious discrimination.’ ” Douglas, concurring, 369 U.S. 244, 245, 82 S.Ct. 724, 7 L. Ed.2d 663.
“No one * * * contends that mathematical equality among voters is required by the Equal Protection Clause, But certainly there must be some rational design to a State’s districting.” Clark, concurring, 369 U.S. 258, 82 S.Ct. 732, 7 L.Ed.2d 663. “Not believing that numerical equality of representation throughout a State is constitutionally required I would not apply such a standard, albeit a permissive one. * * * Moreover, there is no requirement that any plan have mathematical exactness in its application. Only where, as here, the total picture reveals incommensurables of both magnitude and frequency can it be said that there is present an invidious discrimination.” Clark, concurring, 369 U.S. 260, 82 S.Ct. 733, 7 L.Ed.2d 663. (Emphasis supplied)
“In MacDougall v. Green, 335 U.S. 281, 69 S.Ct. 1, 93 L.Ed. 3, the Court held that the Equal Protection Clause does not ‘deny a State the power to assure a proper diffusion of political initiative as between its thinly populated counties and those having concentrated masses, in view of the fact that the latter have practical opportunities for exerting their political weight at the polls not available to the former.’ ” Stewart, concurring, 369 U.S. 265, 266, 82 S.Ct. 737, 7 L.Ed.2d 663.
While the opinion of Justice Brennan, speaking for the Court, does not employ language of like import to the above quotations from Justices Douglas, Clark, and Stewart, we find nothing therein detracting from the validity of their observations. Justice Brennan was careful to define the reach of his decision as follows:
“In light of the District Court’s treatment of the case, we hold today only (a) that the court possessed jurisdiction of the subject matter; (b) that a justiciable cause of action is stated upon which appellants would be entitled to appropriate relief ; and (c) because appellees raise the issue before this Court, that the appellants have standing to challenge the apportionment statutes.” Brennan, speaking for the Court, 369 U.S. 197, 198, 82 S.Ct. 699, 7 L. Ed.2d 663.
If it is now the law that no representative body — be it the United States Congress, a State legislature, a county board of supervisors, a city’s council or board of aldermen, or any other representative body whose members are elected from districts — can legally exist unless there is population equality between districts, then the task of the judiciary is simple and easy. We need do no more than, by judicial command, forbid anything else.
If, however, anything other than obedience to such an easy rule is to be tolerated — -if something be left to the considered judgment of the majority of a State’s people or its legislatures — shall we make precise how much leeway we, *1003the judges, will let them have ? We must, of course, strike down invidious discrimination and any other impermissible plan, such as one where inequalities arise from the race, creed or color of those affected by it. Where we find, however, that the lack of precise equality in an apportionment plan is not gross and is the product of reasonable and intelligent weighing of what is fair and conducive to the total good, shall we intrude to say that only our judgment and discretion will do ? If some departure from mathematical exactness is permissible, what is the range of allowable percentages in such departures? Will 2%, 5%, 10%, 20% or 25% be acceptable to us? If the Sixth Circuit says that 10% is the outer limit, will the Seventh Circuit be forbidden to put up with 15% ? Shall the discretion or political judgment of a majority of a three-judge district court control?
We think it pertinent to say that the facts in Baker v. Carr, Gray v. Sanders and Wesberry v. Sanders bear no resemblance to those which are the background to the case before us. Michigan’s plan for apportioning the seats in its House and Senate will not create or tolerate any “rotten boroughs.” Its 80-20 plan for the Senate and its almost precise adherence to population equality in the House exhibits intelligent and rational design and does not in any degree reveal “incommensurables of both magnitude and frequency.” Baker v. Carr, 369 U.S. 260, 82 S.Ct. 733, 7 L.Ed.2d 663.
Michigan’s new Constitution was not the product of hurried or partisan maneuvering, or of gradual and hidden erosion of the people’s rights. The people of Michigan, by popular vote, decided to have a constitutional convention. Pursuant to that mandate, a convention was assembled. Out of that assembly’s free and unfettered interchange and collision of ideas — between political scientists, practical politicians, lawyers and students of constitutional government, labor leaders, industrialists, and just plain citizens of all races and creeds — came for consideration by the entire people of Michigan a proposed constitution. The question of whether this proposed people’s legislation was wise and proper was vigorously contested at the convention and during the months that followed its submission for adoption or rejection by the people. All of its provisions were exposed to the searching light of today’s media of public information. Thus informed, the people of Michigan made a deliberate choice and, though the closeness of the vote portrays the vigor of the people’s search for what was right, the legislation here under attack was adopted by a majority vote of the people of this State. In making this deliberate choice, every man’s vote was equal to that of any other. Unless the attacked Article of the Michigan Constitution is infected with illegality, a decree, granting the relief sought by plaintiffs, would dilute and debase the vote of every elector who cast his vote with the majority. Finding no such illegality, we decline to do so. .j
A canvass of the vote on the Constitution discloses that its adoption did not come about through the predominant power of any part of the State over another. It does not disclose a victory of one race or creed over another; it does not disclose a victory of Republicans over Democrats;3 it was not a victory *1004of the rural over the urban, or of capital over labor; neither can we discern any influences or pressures except what are traditional in American political contesting. It is true that issues other than Article IV, Sections 2-6, played a part in. the vote pattern, but the Article before us was prominent in the public discussions which preceded the voting.
No clear picture emerges from a study of the vote except that the majority of the people of Michigan made a considered and deliberate choice. For our conclusion, we assume, as plaintiffs insist, that we, the federal judges, may have the right, under some circumstances, to tell the people of Michigan that they cannot have what they chose for themselves. We are not persuaded, however, that the 1963 choice of a Constitution by the people of Michigan was a deliberate or unwitting creation of an invidiously discriminatory plan of apportionment.
The complaint should be dismissed.
. Justice Black said, “We hold that, construed in its historical context, the command of Art. I, § 2, that Representatives be chosen ‘by the People of the several States’ means that as nearly as is practicable one man’s vote in a congressional election is to be worth as much as another’s.” (84 S.Ct. 530.)
. The Supreme Court of Michigan in Schol-le v. Hare, 367 Mich. 176, 116 N.W.2d 350 (pending on certiorari sub nom. Beadle v. Scholle) did so decide.
. Wayne County, Michigan, recognized now as a Democratic stronghold, usually voting on a basis of about 65% Democratic and 35% Republican, voted in the constitutional election 245,410 for and 294,-629 against the Constitution. The five most populous counties, whom the plaintiffs assert are the victims of discrimination, in total voted 441,530 for and 457,-294 against the Constitution. Rural counties, which are claimed to be unfairly favored by the discrimination which plaintiffs assert is in the Constitution, in many instances voted strongly against the Constitution, and it would have gone down except for the heavy favorable vote in the urban populous counties. It might be thought that this discussion of political parties should not be mentioned. The judiciary, however, should not pretend such naivete as not knowing that politics is here involved.