Full opinion text
BIGGS, Circuit Judge. 1. History and Factual Background of the Present Litigation The case at bar has a long history that requires only a résumé here for that history appears fully in the decisions cited in the footnote. It is sufficient to state here that the suit at bar was brought originally as a class action by seven citizens, taxpayers and voters of urban and suburban areas of Delaware. An adjudication was sought that Section 2, Article II of the Constitution of the State of Delaware of 1897, as amended, Del.C.Ann., and the 1963 Amendments thereto, were in violation of the Equal Protection and Due Process Clauses of the Fourteenth Amendment to the Constitution of the United States. The election officers were named as defendants and are still named as such but it should be borne in mind that certain former defendants have been relieved as parties by reason of their quitting office upon the ending of their terms and the elections of their successors who have been substituted as party-defendants. These facts have no substantial bearing on the issues presented by this litigation in its present form. We held that Section 2, Article II, of the Constitution of the State of Delaware and the 1963 Amendments thereto constituted a violation of the Equal Protection Clause of the Fourteenth Amendment. Sincock v. Duffy, D.C., 215 F. Supp. 169 (1963). Following the entry of our judgments an appeal was taken to the Supreme Court of the United States. Following the affirmance of our decision by the Supreme Court in Roman v. Sincock, 377 U.S. 695, 84 S.Ct. 1449, 12 L.Ed.2d 620 (1964), two new statutes, designated as (Senate Bill) S.B. 332 and S.B. 336, created a new apportionment for Delaware, an apportionment which became effective on July 13, 1964. For the sake of convenience, rather than repeating S.B. 332 and S.B. 336 verbatim, here, we refer to Title 29 of the Delaware Code Annotated. S.B. 332 appears in toto in Subchapter I, Sections 601-609. S.B. 336, which sets out the districts of the General Assembly appears in toto in Subchapters II to YI, inclusive, Sections 621-622, 631-632, 641-642, 651-652 and 661. 29 Del.C.Ann.Cum.Supp. We shall quote certain portions of S.B. 332 and S.B. 336 hereinafter as need arises. S.B. 332 provides for a House of Representatives to be composed of 35 members to hold office for 2 years, that the State be divided into 35 representative districts, and that each representative district choose one representative. S.B. 332 provides for a Senate to be composed of 18 members each to hold office for 4 years. The State is divided into 18 senatorial districts, each of which shall elect one senator. S.B. 332 states that the terms of office of the several senators shall be so staggered that not moire than 9 senators shall be elected at each biennial general election. The Act further provides that there shall be 8 representative districts in the City of Wilmington, 16 representative districts in New Castle County outside the City of Wilmington, 5 representative districts in Kent County, and 6 representative districts in Sussex County. The Act further provides that there shall be 4 senatorial districts in the city of Wilmington, 8 senatorial districts in New Castle County outside the City of Wilmington, 3 senatorial districts in Kent County, and 3 senatorial districts in Sussex County. Section 607 of S.B. 332 provides that “The General Assembly shall determine the boundaries of the several Representative and Senatorial Districts within the City of Wilmington and within the several counties by an act of the General Assembly in such manner as there shall be substantial equality of population among the several Representative Districts and among the several Senatorial Districts.” Section 609 of S.B. 332 provides that the newly created apportionment shall continue in effect until the official reporting by the President of the United States of the Federal Decennial Census of 1970, and that after the reporting of each following Federal Decennial Census, the General Assembly shall reapportion and redistrict the State in such a manner that the several representative and senatorial districts shall be substantially equal in population. S.B. 332 was enacted by the General Assembly on July 6, 1964, and S.B. 336 was enacted by it on July 8, 1964. S.B. 336 designates the boundaries of representative and senatorial districts in the City of Wilmington largely street by street. S.B. 336 designates the boundaries of representative districts in New Castle County, outside the City of Wilmington, by boundaries consisting of state, county and city lines, roads, railroads, creeks (small rivers), the Chesapeake and Delaware Canal, and other boundaries which in most cases are clearly identifiable except that the 15th, 19th and 24th representative districts are defined as portions of Hundreds not included in other representative districts. The senatorial districts of New Castle County, outside of Wilmington, comprise combinations of representative districts in New Castle County, outside of Wilmington, by number, as designated in that portion of S.B. 336 relating to representative districts. S.B. 336 defines the boundaries of the General Assembly representative districts in Kent County by combining the heretofore existing representative districts of Kent County. Sections 641(a) and 641(d) dealing respectively with the 25th and 28th representative districts in Kent County perhaps are typical. Section 641(a) states: “The twenty-fifth Representative District shall comprise all of the heretofore existing and constituted First, Third and Fourth Representative Districts of Kent County.” Section 641(d) provides: “The twenty-eighth Representative District shall comprise all of the heretofore existing and constituted Seventh and Eighth Representative Districts of Kent County and the heretofore existing and constituted First Election District of the Sixth Representative District of Kent County.” S.B. 336 states that the senatorial districts of Kent County shall be composed of new combinations of the previously existing representative districts and of certain of the old election districts of Kent County as designated. S.B. 336 provides that the several representative districts of Sussex County shall be composed of the previously existing representative districts and of certain old election districts of Sussex County. In this connection the provisions of Section 651(a), relating to the 30th representative district, may be deemed to be typical: “The thirtieth Representative District shall comprise all of the heretofore existing and constituted First Representative District of Sussex County and all of the heretofore existing and constituted First and Third election districts of the Second Representative District of Sussex County.” We shall discuss the phrase “heretofore existing and constituted” as referred to in Sections 641(a), 641(d) and 651(a), at a later point in this opinion. S.B. 336 states that the senatorial districts shall be composed of combinations of the new representative districts. Section 661 of S.B. 336, headed “Effectuation”, provides: “Preparing and filing maps of districts, (a) The respective Departments of Elections shall cause to be prepared by Registered Land Surveyors maps of each county showing the boundaries of the several General Assembly districts, (b) The Registered Land Surveyors who prepare the maps shall certify on them as to their correctness and the respective Departments of Elections shall cause the appropriate maps to be recorded in the Recorders Office in the County for which the maps are prepared. Upon such recording, the maps shall be prima facie evidence in all judicial proceedings as to the correctness of the boundaries, (c) The several Departments of Elections shall cause such additional copies of the maps, as they deem necessary to properly advise the public, to be prepared and distributed.” Maps referred to in Section 661 have been certified and filed and we shall deal with them at a later point in this opinion. II. Facts Relating to the Preparation of S.B. 332 and S.B. 336 Shortly after the decision of the Supreme Court in Roman v. Sincock on June 15,1964, a meeting or a series of meetings were held in the Capitol Building at Dover, Delaware, on or about June 17, by members of the Democratic party to discuss proposals to be put before the General Assembly to provide for reapportionment in accordance with the decision of the Supreme Court in Roman v. Sin-cock and the related Supreme Court decisions., On June 22, 1964, Governor Carvel held a meeting of the leaders of both parties in the Legislature. This meeting was called as a bipartisan meeting, but during the course of it the Governor stated, according to the uncontradicted testimony of Senator Reynolds duPont, “that the majority party was the majority party and it was going to do the reapportionment.” In respect to S.B. 332 Senator Allen J. Cook, President pro tempore of the Senate advised the Senate in the course of the limited debate immediately preceding the passage of the bill through the Senate, that S.B. 332 was “the majority party’s bill,” and they were going to make the best effort “because they were the majority, to take care of the Democratic party in the redistricting.” It is a permissible inference to be drawn by the triers of fact, and we draw the inference, that the system of reapportionment embodied in the new legislation which took the place of Section 2, Article II of the Constitution of Delaware and the 1963 Amendments thereto represented the partisan efforts of the Democratic members of the General Assembly as a result of the meetings hereinbefore referred to. Our finding is fortified by the fact that S.B. 332 and S.B. 336 passed the General Assembly by reason of the votes of the Democratic members of the House and Senate. The fact that the legislation was passed by Democratic majorities in both Houses does not necessarily invalidate the legislation insofar as the Equal Protection Clause of the Fourteenth Amendment is concerned, but it is a fact to be considered in respect to the allegations of gerrymandering made by the plaintiffs which will be discussed at a later point in this opinion. Prior to the enactment of the two measures, apparently between June 22 and June 29, 1964 James L. Latchum, Esquire, a member of the Bar of Delaware, was given the task of planning the reapportionment of the City of Wilmington. Mr. Latchum had been chairman of the Democratic City Committee of Wilmington, and chairman and secretary of the New Castle County Democratic Committee. He testified that he first prepared the boundaries of the 4 senatorial districts, and next those of the 8 representative districts; that in forming the senatorial districts he used census tract figures for the City of Wilmington, as set out in his affidavit. He testified that he found it necessary to split existing election districts, “some 36 or 37” of them. Mr. Latchum also testified that he prepared a map and a description of the districts and sent these to the Secretary of State of Delaware who “was heading the thing up, or at least gathering the plan in his office.” He státed that in dividing the City of Wilmington, after reading “the Supreme Court opinion”, he attempted to make the respective districts substantially equal in population, and that he had no other criteria than numerical equality in population in mind. He said also that he came around Wilmington “clockwise”. This, of course, required him to find a western boundary for the new 2d senatorial district, which is a large one, and he testified that in order to create an area “about equal in population” he had “to take in ten census tracts.” Mr. Latchum’s problems were largely geographical and arithmetical, and he had available not only the census tracts for Wilmington but also the “United States Census of Housing, 1960”, for Wilmington, which breaks the City down population-wise, city block by city block. Mr. F. Earl McGinnes undertook the task of the reapportionment of Rural New Castle County, i. e., New Castle County outside of the City of Wilmington. Mr. McGinnes presently is the Budget Director of the State of Delaware, was Governor Carvel’s Administrative Assistant, served a term in the House of Representatives, has been vice-chairman of the Christiana Hundred Democratic Committee, and at the time he testified was serving as chairman of the Christiana Hundred Democratic Committee. He testified that he used “population figures as prescribed by the census of the United States in 1960,” with certain exceptions ; viz., those situations where estimates were deemed necessary. He stated that it was his understanding that both representative and senatorial districts should be “as nearly equal in population as reasonably possible” and that “natural and historical boundaries should be followed whenever possible.” He said that he sought to maintain election district boundaries where practicable and keep the new representative districts within the old Hundred boundaries where possible but he reiterated that his primary purpose was to secure equality of population in the General Assembly districts. In response to a question as to how many census enumeration districts he split in preparing the plan, Mr. Mc-Ginnes answered: “It would appear [that there were splits in] 16 different districts. Thirty-two splits show up on here and this is past one place and past the other, so it is the same district involved. I assume this means 16 districts.” (Sic.) On further examination he testified that there were in fact 19 census enumeration districts split, involving 38 changes in representative districts. He testified that it was necessary to use estimates; in some instances he employed what he termed a “map estimate” or made estimates by physical inspections of split enumeration districts, and in a very few situations involving seemingly small populations he “guessed” at the numbers of people living within given areas. Mr. McGinnes also employed a ratio of registered voters to total population in making some of his estimates. He used substantially the same method in estimating ratios as did Mr. L. Winfred Hughes and Mr. Raymond Y. West, who testified in these proceedings before Mr. McGinnes testified and whose evidence in this respect is set out hereinafter. The substance of Mr. McGinnes’ work in respect to the reapportionment of New Castle County, outside of Wilmington, is summed up in general in the affidavit filed by him. The affidavit of Mr. McGinnes contains the following statement: “It has been estimated that the population of New Castle County has increased from 211,916 [sic.] in 1960 to 250,000 at the present time. Whole housing developments and large apartment units have been built and occupied in certain areas. The simple fact is that the population changes since 1960 completely invalidate the current accuracy of the 1960 Census District data and the degree of error involved in using this data far exceeds any error that could have resulted from the above-mentioned approximations.” The court takes judicial notice of the substantial accuracy of Mr. McGinnes’ statement quoted above and we find that the increase in population in Rural New Castle County is at least as large as stated by him. Mr. L. Winfred Hughes was the president of the Kent County Department of Elections and at one time was the chairman of the Kent County Democratic Committee. He stated that he assisted in preparing the legislative redistricting plan embraced by S.B. 332 and S.B. 336 for Kent County with some aid from the chairman of the Kent County Democratic Committee. Mr. Hughes made some reapportionment estimates for Kent County prior to the passage of S.B. 332 and S.B. 336. Mr. Hughes also employed a ratio of registered voters to total population in forming some of his estimates. An example will suffice. An unknown factor, and one which of course required determination, was the number of persons in the 2d election district of the old 2d representative district. There are, of course, 1960 census figures for the entire old 2d representative district including personnel of the Dover Air Force Base living in and around the Base but there are no 1960 census figures available for the individual election districts comprising the old 2d representative district. According to the 1960 census figures there were 17,806 persons in the old 2d representative district and, according to the Department of Elections of Kent County, there were approximately 4,000 registered voters in that district. Mr. Hughes therefore employed a ratio of approximately 4 to 1 to estimate the number of persons within the 2d election district of the old 2d representative district. Knowing there were 1079 registered voters in the old 2d election district of the old 2d representative district, Mr. Hughes estimated that there were 4,000 persons within the old 2d election district of the old 2d representative district. This appears from his testimony and his affidavit. Mr. Hughes frankly conceded in subsequent testimony that the 4,000 persons as estimated by him was perhaps too high. The number of persons, United States Government personnel, living in and around the Dover Air Force Base in the old 2d representative district has been much mooted in the course of this litigation but this factor, of course, has pertinency in respect to the equality of representation in the new 26th and 27th representative districts. Mr. Hughes composed the three new senatorial districts of Kent County by using portions of the old representative districts and old election districts of Kent County. He used estimates in respect to the 14th and 15th senatorial districts as appears from his affidavit. Mr. Raymond Y. West to a large degree prepared the reapportionment of Sussex County and estimated the populations included within the General Assembly districts in relation to S.B. 332 and S.B. 336. Mr. West testified that he was employed in the personnel department of the State Highway Department and was chairman of the Sussex County Democratic Committee; that he had served in the General Assembly of Delaware, on the Sussex County Drainage Commission, and had spent seven years on a local school board. He testified that he did not draw the representative and senatorial district lines, but that he supplied the information for “someone else who did draw the lines.” Mr. West also employed ratios in some instances in arriving at estimates of populations employing substantially the same method as that used by Mr. Hughes and Mr. McGinnes. He stated that the basic method of making his determination was to take the population of each representative district of Sussex County from the 1960 Federal Census as published by the Development Department of the State of Delaware and dividing this figure by the total number of registered voters in the election districts composing each of the representative districts. He received the information respecting registered voters from the Department of Elections for Sussex County. He stated and this also appears from his affidavit that with the exception of the new 32nd representative district, the remaining representative districts of Sussex County, viz., the 30th, 31st, 33rd, 34th and 35th representative districts were created by adding the population of one or more of the old election districts. This, of course, required much estimating. As will appear hereinafter, there are complicating factors in Sussex County which presented difficulties in the reapportionment of that County. In respect to the issue of gerrymandering, Mr. West was explicit. He stated: “I had gotten information relative to redistricting. I mean figures and maps and information from the Board of Election of Sussex County or the Department of Election [sic.] of Sussex County. I had a committee with legal advice. I had connections with the members of the General Assembly that told me what they wanted and what they expected. I recall that the majority leader of the General Assembly in the House passed this information along to me. He said, T will not go along with any gerrymandering; neither in your county, in my county, or any other county; and I want a plan that can be accepted, which I can sell here, and I don’t expect to be charged with gerrymandering.’ ” Mr. West also testified as follows: “Now, I notice * * * that I am charged with gerrymandering a certain district. I would think it would be more logical for the Democratic Party to charge me with that, because down in the southwestern area of the district,in the southwestern area of the county, is the Democratic strength. And I think the records that probably are here today will verify what I am saying, that far more Democrats are put into a Representative District there than there are Republicans in the other districts. We just did this by taking these Election Districts * * * and working them out. And it worked out very nicely, where they fitted one against the other, and they seemed to be adjacent. And when we got out we put what was left over in No. 35. Some of them are swing districts. I think there is one of these that a Democrat is fairly sure of being elected in. I think there is one that the Republicans are fairly sure of being elected in. I think the remainder of those other four will depend.” (Sic.) It should be pointed out that while Mr. Latehum, Mr. McGinnes and Mr. Hughes did not make as express denials of gerrymandering as did Mr. West, nonetheless these three gentlemen asserted stoutly and positively that they were endeavoring to deal with reapportionment fairly and equitably and on the basis of equal representation. It will be observed from the testimony of Mr. Latehum that he, in a sense at least, was the progenitor of those portions of S.B. 332 and S.B. 336 which dealt with Wilmington, and the same we believe is shown by the record insofar as Mr. McGinnes is concerned in respect to New Castle County, outside of Wilmington. It also appears from the record that Messrs. Hughes and West were to some degree at least the creators of those portions of S.B. 336 which dealt respectively with the creation of the representative and senatorial districts in Kent and Sussex Counties. Messrs. Latchum, Mc-Ginnes, Hughes and West had in mind, respectively the number of representatives and senators to be allocated to the City of Wilmington, to New Castle County outside of Wilmington, to Kent and to Sussex Counties, and the 1960 census figures as to the number of inhabitants of Delaware in each of the geographical divisions referred to. It should be noted also that once S.B. 332 was enacted a Procrustean bed was created in which it was a virtual impossibility for substantially equal representation to be given to the inhabitants of Delaware on the basis of “one person, one vote”. But it should also be observed that the period of time in which the four gentlemen whom we have named had available to work out a reapportionment system for the whole of Delaware was comparatively short for the decision of the Supreme Court in Roman v. Sincock was handed down on June 15, 1964 and the primary election in Delaware that year was to be held on Saturday, August 15th, the general election being held, of course, on November 3, 1964. In the two months period first stated candidates had to announce their candidacies, slates had to be prepared by the respective political parties, and the Departments of Elections had to prepare for the primaries if a general election expressing the will of the people of Delaware was to be conducted according to law on November 3rd. Time was indeed of the essence. The tasks the four men performed were large ones and were effected swiftly. We shall deal more particularly with issues concerning deviations in population and gerrymandering hereinafter. III. The Work of the Committee of 39 and the Reapportionment Plans of the Committee The Committee of 39 is a volunteer non-profit organization devoted to the purpose of effecting good government in Delaware. It began its work in respect to reapportionment in Delaware shortly after the decision of the Supreme Court in Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962), and it cannot be doubted that the members of this volunteer organization, in particular Mr. James Weaver and Mr. Sidney W. Hess, and Bruce M. Stargatt, Esquire, its counsel, have devoted many hours in their endeavors to aid the court in understanding the problems presented by this very extensive litigation. The Committee of 39, having been allowed to intervene as amicus curiae in these proceedings, presented inter alia a plan for the reapportionment of Delaware based upon extensive data and the use of a computer. This plan is set out in an article entitled “Procedure for Non-Partisan Districting: Development of Computer Techniques.” A very substantial portion of this article is devoted to what is in substance the plan of the Committee of 39 for the reapportionment of Delaware by the use of computer techniques as will appear upon examination. We entertain little doubt but that the plan advanced by the Committee of 39 would serve the State of Delaware well. However, as the Committee of 39 points out the apportionment of 35 representatives among the counties, including Wilmington, on a population basis would result in a minimum deviations between the Counties of 7% in population-per-representative. This is due to the fixed number of representatives and fixed boundaries as set out in S.B. 332 and S.B. 336 which render substantially equal representation a practical impossibility. If fixed boundaries such •as County lines, Wilmington City lines, and Hundred lines were obliterated and the data appearing from certain charts set out at a later point in this opinion were made use of as will appear, a better system of reapportionment could be devised for Delaware. It is asserted that such a course would entail an almost complete recasting of county governments and county functions and those of the City of Wilmington as well. We cannot find this to be a fact for the election of representatives and senators to the General Assembly could be operated as a system apart from the election of county officers at general elections with comparatively slight difficulties. It should be noted that the plan of the Committee of 39 as submitted to the court requires disregarding County lines and City of Wilmington lines in the following respects: senatorial districts 2, 3, 10 and 12 cross Wilmington City lines; senatorial district 7 crosses the New Castle County-Kent County line; and senatorial district 15 crosses the Kent County-Sussex County line. Representative districts 2, 3, 9 and 14 cross Wilmington City lines; representative district 28 crosses the New Castle County-Kent County line; and representative district 30 crosses the Kent County-Sussex County line. The plan of the Committee of 39 provides for 17 senatorial districts instead of 18 senatorial districts, but provides the same number of representative districts for the State of Delaware as do S.B. 332 and S.B. 336. But the duty of this court is not to impose a system of reapportionment upon the State of Delaware, if such a task can possibly be avoided, for as we have said many times the duty of apportionment lies with the Legislature. Our duty is to adjudicate the issue presented by the instant proceedings which is whether or not the reapportionment created by S.B. 332 and S.B. 336 meets the requirements of the Fourteenth Amendment as affording equal representation to the citizens of Delaware insofar as that be practicable. IV. Plans of the Plaintiffs for Reapportionment The plaintiffs have also suggested plans and means for the reapportionment of the State. We dealt with the first plan submitted, albeit somewhat briefly, in the appendix to our opinion in Sincock v. Duffy, 215 F.Supp. at 192-95. The plaintiffs’ plan for apportioning the State of Delaware also requires crossing the Wilmington City limits in respect to senatorial district 4 and representative district 8.> The plaintiffs have now submitted another plan providing for the reapportionment of Wilmington and we shall discuss this in some detail at a later point in this opinion. V. Data Submitted by Witnesses of the Parties and of the Committee of 39 The record which has been accumulated in this portion of the case, based on the filing by the plaintiffs of their motion to implement the mandate of the Supreme Court following its decision in Roman v. Sincock is a large and somewhat contradictory one. It consists of evidence given by 25 witnesses and a transcript of more than 3000 pages, taken largely during the trial on the merits and on various occasions between August 3 and December 21, 1965, inclusive. In addition, there are over 125 exhibits, many of which are maps in several series designated by subnumbers or letters under the principal exhibit numbers. These maps set up the contentions of the respective parties as well as those of the Committee of 39. A very considerable portion of the evidence was received prior to our order denying the plaintiffs’ motion for preliminary injunction filed on September 16, 1964. See Sincock v. Roman, 233 F.Supp. 615 (1964). At this time we reviewed our determination of the defendants’ motions to dismiss. Subsequent intensive study indicated that there existed substantial deficiencies in the record. Counsel in this case were rushed for time in the preparation of the record and in filing requests for findings of fact and conclusions, and the court itself felt it necessary to reach a conclusion on the motions to dismiss and for a preliminary injunction as soon as possible to the end that the Departments of Elections of the State could proceed efficiently with the general election of 1964. On January 18, 1965 a memorandum was submitted to counsel by the court containing a number of complicated questions to be answered by counsel or by the parties. On January 25, 1965 the opinion of the Attorney General of the State of Delaware, Document 155, respecting the status of three hold-over Senators, was filed in this proceeding, and on January 26, 1965 a conference was held by the court and counsel. At this conference the court stated to counsel its desire to have in the record maps which would show the boundaries of each representative district and each senatorial district for the City of Wilmington, for New Castle County outside of Wilmington, for Kent County and for Sussex County in accordance with the reapportionment provided for by S.B. 332 and S.B. 336, prepared by the Departments of Elections of the State of Delaware as required by Section 661 of S.B. 336. It then appeared that the Department of Elections of New Castle County had prepared such maps but had not had them certified or filed and that the two other Departments of Elections of the State of Delaware had not caused the maps to be prepared. Counsel were requested to make every effort to have the maps required by Section 661 prepared, certified and filed as soon as possible. On May 12, 1965, the maps, required by Section 661 not having been certified to or filed, the court, in order that the case might be more promptly disposed of, ordered a further conference to be held by all counsel, and ordered the plaintiffs, the defendants, and the amicus curiae to file briefs and requests for findings of fact and conclusions of law, and set the case down for argument on July 16,1965. In the same order the court directed the parties “To stipulate,. insofar as is possible, to the admission in evidence of maps prepared, or in the course of preparation, as required by 29 Del.C.Ann. § 661 (Supp.) * * * [viz.,] maps showing the representative districts and senatorial districts throughout the State of Delaware by counties and in Wilmington, and the election districts, and the populations of each election district as of the time that S.B. 336 became law, it being the intention of the Court, if proper standards of proof be met, to admit such maps and figures in evidence, * * This portion of thé order was subsequently amended by striking out any reference to the election districts and their respective populations. In accordance with the court’s order, counsel by a series of conferences, by telephone calls and by other communications, with the aid of the court, endeavored to secure the filing of the maps as required by Section 661. On June 1,1965, it appearing that the Departments of Elections of New Castle and Kent Counties had complied with the provisions of Section 661 but that the Department of Elections of Sussex County had not so complied, the court issued an order directed to the members of the Sussex County Department of Elections to show cause why they should not comply with the provisions of Section 661. This rule to show cause was made returnable on June 7, 1965 and was duly served. On June 7, 1965 it appearing that the Department of Elections of Sussex County had complied with the provisions of Section 661, the rule was discharged. On June 16, 1965 a further conference was held by the court and counsel in an endeavor to see if counsel could not stipulate as to certain disputed areas in Kent and Sussex Counties. This stipulation, Document 174, was filed on June 16, 1965, and sets out undisputed facts in respect to certain Republican Senators who, as has been indicated, assert a “hold-over” right to sit in the General Assembly, purports to correct certain errors in testimony as to population in some localities as appears on examination, and stipulates the estimated 1960 populations of representative and senatorial districts in the State of Delaware under S.B. 336 insofar as agreement was possible at that time. We have used the term “purports” advisedly in the immediately preceding sentence because the parties on March 14, 1966, filed Document 195, which is intended to correct certain population figures relating to General Assembly districts in Kent County. Document 174, therefore, is to be read in conjunction with Document 195. Document 195 for the first time supplies “Election Results under S.B. 336, Senatorial Districts”, “Exhibit 6-page 2”. But as pointed out hereinafter certain corrected figures as stipulated to even in Document 195 do not coincide in some respects with those prepared by this court as demonstrated in the charts set out under heading “VI.”, infra. The deviations, however, are minor ones and need not greatly concern this court or the reviewing Tribunal since the decision of the issues involved herein are not substantially affected by these small deviations. In respect to the maps required by Section 661, certified to and filed in the respective offices of the Recorders of Deeds in the three .counties of Delaware, the stipulation contained in Document 174 states the following, “9. The respective Departments of Elections have caused to be prepared by registered land surveyors’ maps of each county which purport to show the boundaries of the several General Assembly Districts. The registered land surveyors who prepared the maps have certified on them as to their correctness, and the respective Departments of Elections have caused the maps to be recorded in the Recorder’s Office in the County in which they were prepared in compliance with the provisions of Subchapter VI, Section 661 of Senate Bill 336.” The parties agreed that these maps should be marked and put into evidence as indicated in note 38, supra. The stipulation further provides that. “the parties also agreed that the population figures referred to in Paragraph 1(b) of this Stipulation, and appearing on Exhibit S(l) attached to this Stipulation, represent the agreed 1960 population of the Representative Districts in New Castle County, including Wilmington. They also agree that the Plaintiffs’ contention with regard to the population of Representative Districts 25, 28, and 29 are correct in Kent County, and that there remains in dispute only the populations of Representative Districts 26 and 27. The Exhibit sets forth the respective contentions of the Plaintiffs and Defendants with regard to those Districts. “The Defendants’ figures are derived from population estimates in five out of the six Sussex Representative districts, viz., 30, 31, 33, 34 and 35. As to these districts, Plaintiffs wish to make it plain that they do not agree that Defendants have presented satisfactory proof of the precise populations within said districts. However, for the purpose of this hearing, Plaintiffs will now indicate that they do not propose to present evidence in opposition to the populations. “As to Representative District 32, the population of this District was derived from reliable census data, and Plaintiffs concede that the Defendants’ contention as to the population of this District is factually correct. “The parties all agree that the population figures referred to in Paragraph 1 (b) of this Stipulation and appearing on Exhibit S(2) attached to this Stipulation represent the 1960 population of the Senatorial Districts of New Castle County, including Wilmington. With regard to Kent County, the parties agree with respect to the 13th Senatorial District, but disagree with respect to the 14th and 15th Senatorial Districts and have set forth in Exhibit S(2) their respective contentions with regard to the population of those Districts in 1960. “With regard to the Senatorial Districts of Sussex County, the Plaintiffs incorporate herein the comments made with respect to the correlative Representative Districts. “The parties stipulate that the maps prepared on behalf of the New Castle County Department of Elections, including Wilmington, correctly and accurately reflect the boundaries of the Representative Districts and the Senatorial Districts for that area. They further stipulate that the maps prepared for the Departments of Elections of Kent and Sussex Counties represent conscientious efforts on the part of the Departments of Elections of those Counties to present as accurately as possible on a single county map the District boundaries in accordance with the Representative and Senatorial lines employed by the Departments in the last five General Elections. Several of these Election Districts and Representative Districts are defined by map or written description only in terms of the boundaries of the traditional ‘hundreds’ in both of these counties. In many instances, unambiguous descriptions of the hundreds do not exist; and it is impossible to determine in Sussex County the exact location of the boundary markers and lines which comprise the Representative and Senatorial Districts as they ‘heretofore’ existed. “With regard to the Sussex County map, it was determined that the Department of Elections had theretofore had a map which contained a significant deviation in boundaries between the present 34th and 35th Representative Districts. This deviation was continued in the map dated May 1, 1965, prepared by Messrs. Simpson and Burton, had no significance with regard to population and has been corrected in the map which they prepared and which is dated June 29, 1965.” The parties further stipulated that “after these corrections, the Representative District boundaries on these maps correspond to the boundaries used in conducting the last five General Elections for the corresponding Election Districts.” Following the admission of the maps into evidence and the filing of the stipulation, Document 174, the brief of the defendants and their proposed findings of fact and conclusions of law were filed on August 3, 1965. One day later the post-trial brief of the plaintiffs was filed. The plaintiffs stood upon their prior requests for findings of fact and conclusions of law as set out in their brief in support of their motion for a preliminary injunction and did not file new requests. But the “Conclusion” of the plaintiffs’ “Post-Trial Brief” contains a series of prayers for relief which we will treat as an amendment to the pleading and as a part of the plaintiffs’ motion to implement the mandate of the Supreme Court. These are discussed briefly later under heading “XVI. The Remedy.” On August 9th the maps hereinbefore ■designated in note 38, supra, were introduced in evidence and argument was had by the parties in respect to all issues deemed pertinent by them in the instant proceedings. On August 16th the counsel for the defendants filed a letter brief on the issue of gerrymandering, a brief which was replied to by the letter brief of the plaintiffs filed on August 30th. Despite the actions taken by the court and counsel as set out above, the court still found the record to contain certain deficiencies in respect to the maps required by Section 661 of S.B. 336 and on December 1, 1965 held a further conference with counsel and informed them as to what the court deemed to be some of the deficiencies. Subsequently, on December 15, 1965, counsel for the defendants filed a motion to reopen the record as will appear from their motion. The motion to reopen was not opposed by the plaintiffs. On December 20-21 the court held a further hearing to receive evidence on issues presented by the maps. The maps required by Section 661 were admitted into evidence as appears in note 38, supra, subject to the minor deficiencies referred to under heading “XIII.”, infra. One other exhibit requires mention and that is plaintiffs’ Ex. 60. This exhibit purported to show “1956-1962 Voting Records for State Representatives and State Senators Arranged in Total by Legislative Districts”. The original figures for this exhibit were prepared for the Committee of 39, by Mr. Donald Niederhauser, from returns published by the “News-Journal newspapers”, the Wilmington “Morning News” and the Wilmington “Evening Journal”, and not from the returns made to the respective Prothonotaries of the three Counties in accordance with Section 4978, Title 15, Del. C.Ann. The figures contained in the original exhibit, therefore, were not official figures and the court deemed it necessary that the exhibit be corrected to the end that the official figures might be before the court. The present exhibit is entitled “Plaintiff’s [sic.] Exhibit 60 Substitute” and was filed on March 14, 1966. With the filing of Document 195 correcting Document 174 and supplying the court with the election results under S.B. 336 as to senatorial districts, “Exhibit 6 — page 2”, the evidence in this protracted case at long last seems to be complete. The court endeavored to digest and understand this extensive and difficult record. It contains many, many population figures which the parties and the Committee of 39 and its counsel have attempted, in many instances successfully, to tie to specific geographic areas such as representative districts and senatorial districts, both old and new, to election districts, and in respect to the City of Wilmington even to block-by-block locations. But many of these figures are conflicting and to detail the testimony of the various witnesses herein would create an opinion of greater than permissible length. To the end that all the issues may be brought into focus, insofar as we are able to do so, a series of charts are set out in the next heading of this opinion which we think will serve to clarify the record and, we hope, will give perspective to the issues which we must adjudicate. To the end that the complete picture may be presented we have included in certain of the charts referred to facts brought upon the record during the first trial of this case; viz., Sincock v. Duffy, supra, 215 F.Supp. 169. VI. Tables Table I below shows the House of Representatives by political subdivisions. Explanations of its abbreviations and symbols are set out in the footnote. Table II below deals with the Senate by political subdivisions and performs substantially the same functions with regard to population figures for senatorial districts as does Table I for representative districts. Table III below demonstrates the allocation of voting power per political subdivision in relation to populations. Table IV shows the allocation of voting power per political subdivision in relation to population if Wilmington had 7 representatives and Rural New Castle had 17. Table V shows the population of Delaware by political subdivisions for the years 1930, 1940, 1950, 1960, and in the single instance of Rural New Castle County, i. e. New Castle County outside of Wilmington, the population for 1964. Table VI below shows estimated populations in relation to the House of Representatives and the population of Delaware set up pursuant to S.B. 336, using the norm or mean figure of 12,751 persons. Table VII shows the estimated populations in relation to senatorial districts and the population of Delaware pursuant to S.B. 336, using the norm or mean of 24,794 persons. Table VI and Table VII are to be considered in conjunction with Court’s Ex. 41, entitled “New District Populations for Delaware’s General Assembly Under Senate Bill 336.” This exhibit presents a valuable analysis of S.B. 336 and has enabled the court to test the accuracy of the population estimates as asserted by the defendants. Putting the matter briefly the apportionment plan created by the Legislature by S.B. 332 and S.B. 336 resulted in some splitting of census enumeration districts. In the case of Delaware, a census enumeration district is the smallest unit in which census figures are collected or maintained, outside of Wilmington. In Wilmington, census data was available for the most part by city blocks. In the instant case a split census enumeration district occurred when a portion of the geographical area of a census enumeration district was placed in one representative district or senatorial district while the remaining portion of it was placed in another representative or senatorial district. In one or two instances census enumeration districts were split and were added to one or more representative or .senatorial districts. When a census enumeration district is split to form representative or senatorial •districts it is impossible, unless block census figures are available as for the City of Wilmington, to tell from census figures how much of the population of each portion of the split census enumeration district is included in each representative or senatorial district. For example, assume that census enumeration district A-l contains a total population of 900 persons and assume further that census enumeration district A-l is split between representative district No. 1 and representative district No. 2, it cannot be told from the census figures how many of the 900 persons specified are included in district No. 2. Therefore, an estimate is necessary. The problem increases in difficulty when a representative district contains portions of several split enumeration districts. When this occurs, the possibility of error necessarily is enlarged because the number of estimates is increased. The accuracy of such estimates can, however, be checked within a limited range. For example, assume that hypothetical Representative District No. 1 is composed of the following hypothetical census enumeration districts with the following hypothetical populations: A-2 5,000 A-3 3,000 A-4 2,000 Total 10,000 Assume further that Representative District No. 1 also contains portions of the following census enumeration districts with the following total populations: A-l 2,000 A-5 3,000 Total 5,000 Now, as indicated, we cannot tell from the available census material how many of the 5,000 persons contained in the two split census enumeration districts reside in Representative District No. 1. But, we do know that it can contain no fewer than 0 and no more than 5,000 persons from these two split census enumeration districts. Therefore, we can calculate a range for Representative District No. 1 of a minimum of 10,000, viz., 10,000 known population plus zero from split census enumeration districts, to a maximum of 15,000, viz., 10,000 known plus 5.000 from the two split census enumeration districts. Assuming the accuracy of these figures, it is a mathematical impossibility for Representative District No. 1 to contain fewer than 10,000 or more than 15.000 persons. Therefore, if. the estimated population for this representative district was 9,000 persons, or 16,000 persons, we would know at once that the estimate was inaccurate and must be in error by at least 1,000 persons. Absolute mínimums and máximums by representative and senatorial districts were computed by the Committee of 39 and are shown in Court’s Ex. 41. These figures, “Indeterminate Minimum” and “Indeterminate Maximum” have been transposed respectively into Column 5 of Tables VI and VII. Table VIII, set out below, shows the population deviations within the City of Wilmington created by S.B. 332 and S.B. 336 providing for 8 representatives and 4 senators. In connection with the figures of this table and other data we will discuss the plaintiffs’ plan for the apportionment of the City of Wilmington as submitted by their Counsels’ letter of August 30, 1965 at a later point in this opinion. Table IX below shows the population deviations within Rural New Castle County created by S.B. 332 and S.B. 336 providing for 16 representatives and 8 senators. Table X shows the population deviations within Kent County created by S. B. 332 and S.B. 336 providing for 5 representatives and 3 senators. Table XI, set out below, shows the population deviations within Sussex County creáted by S.B. 332 and S.B. 336 providing for 6 representatives and 3 senators. Table XII, Stipulation “Exhibit 3 (Exhibit S-l”, and Stipulation “Exhibit Ip (Exhibit S-2)”: We have referred several times to Document 174, the stipulation filed July 16, 1965. It is now necessary to refer to it again. The parties with; the aid of the Committee of 39, and in particular with that of Mr. Weaver, acting for the Committee of 39, filed with Document 174 an exhibit designated as “Exhibit 3 (Exhibit S-l)”, the latter designation, that enclosed in parentheses, meaning Stipulation Exhibit 1. Though this is designated as a “Proposed Stipulation” and as such was not approved by the Court when filed, nonetheless we find it was the intention of the parties that it be treated as binding upon them. The extent to which it will be approved by. the court is stated later in this opinion. Stipulation Exhibit 1 is based on checking census totals and compromises reached by the parties following a meeting on February 3, 1965 and following other meetings, and includes allegedly “slight changes” from certain figures set up in the defendants’ motion for summary judgment, Document 128, and from the figures set up in the plaintiffs’ proposed findings of fact, Document 149, p. 11, as appears. The representative districts are set out for New Castle County, including Wilmington, in Column 1, as are those for Kent and Sussex Counties. The population figures asserted on behalf of the defendants are set out in the second column and the populations asserted by the plaintiffs are set out in the third column. Document 174 also contains a “Proposed Stipulation” designated by the parties as “Exhibit A (Exhibit S-2)”, the latter designation, that enclosed in parentheses, meaning Stipulation Exhibit 2 which we will treat in pari materia with Exhibit 3 (Exhibit S-l) insofar as admissibility is concerned and hence deem it to be part of the record in this case and as expressing the intent of the parties. Exhibit S-2 displays a setup as stipulated to by the parties for senatorial districts alike to that stipulated to by the parties in respect to representative districts as shown by Stipulation Exhibit 1. It will be noted that in respect to Document 174 a dispute existed between the parties as to the populations of the 26th and 27th representative districts in Kent County. A portion of paragraph 9 of the stipulation, pp. 5-6, states the parties “agree that the Plaintiffs’ contention with regard to the population of Representative Districts 25, 28 and 29 are correct in Kent County and that there remains in dispute only the population of Representative Districts 26 and 27. The exhibit sets forth the respective contentions of the Plaintiffs and Defendants with regard to these districts.” The stipulation, paragraph 9, pp. 6-7, states in respect to the disputed senatorial districts in Kent County the following : “The parties all agree that the population figures referred to in Paragraph 1 (b) of this Stipulation and appearing on Exhibit S(2) attached to this Stipulation represent the I960 population of the Senatorial Districts of New Castle County, including Wilmington. With regard to Kent County, the parties agree with respect to the 13th Senatorial District, but disagree with respect to the 14th and 15th Senatorial Districts and have set forth in Exhibit S(2) their respective contentions with regard to the population of those Districts in 1960. “With regard to the Senatorial Districts of Sussex County, the Plaintiffs incorporate herein the comments made with respect to the correlative Representative Districts.” It must be noted also that Document 174 has been corrected, pursuant to the agreement of the parties as set out in Document 195 supplementing Document 174. The last page of Table XII, marked stipulation 1 continued, is an elaboration of the respective contentions of the parties in regard to the populations of representative and senatorial districts of Kent County. We have included it because it reduces the controversies in respect to populations and geographic areas as asserted by the parties to definite cognizable form. Table XIII shows the Democratic and Republican votes cast for representatives and senators in the 1962 election by seats in accordance with the geographic areas as specified: i. e., the “Representativeness” of the election. VII. The Plaintiffs’ Plan for Apportioning Representative Districts in the City of Wilmington Document 181 is a letter dated August 30,1965, delivered to the court by counsel for the plaintiffs, Vincent A. Theisen and Victor Battaglia, Esquires. The letter addresses itself to a plan for the City of Wilmington which would avoid large deviations in the representative districts in the City. It is apparent that Mr. Latch-um in preparing the representative districts for the City of Wilmington largely ignored the historic boundaries which ran easterly and westerly in the City of Wilmington, and it is alleged that he reversed the course of the districts so that they now run northerly and southerly, thereby splitting and eliminating pockets of Republican strength contained in the old 7th and 9th Wards of the City of Wilmington and compressed 41% of the total Negro population into one district consisting of 84% Negro population. The defendants assert that this is simply the result of Mr. Latchum having followed census tract boundaries. One of the issues presented by Document 181 is gerrymandering. This will be dealt with at a later point in this opinion. We are presently concerned with aspects which relate primarily to differences in population of representative districts within the City of Wilmington. The plaintiffs assert that the tools were and are at hand with which proper allocations of populations to representative districts easily could have been made and that this is a potent factor to be considered in respect to representation as equal as practicable in order that invidious discrimination be avoided as required by the Fourteenth Amendment. We set out immediately below as Table XIV the chart contained in Document 181 in its precise words and figures. The first column shows the representative districts in the City of Wilmington by number. The second column shows the population by representative districts under S.B. 336. The third column, entitled “Dev. from Ideal” represents the number of persons by which each representative district deviates from the ideal population which we have déscribed earlier as the “norm” or “mean”. The fourth column shows Mr. Theisen’s plan's adjustments of representative district lines to reduce the population differences, and the fifth column entitled “Dev. from Ideal” shows the number of persons by which each district deviates from the ideal population which we have described as the “norm” or “mean”. To the end that it may be demonstrated how Mr. Theisen's plan works, we have set out in Table XV in note 56, infra, representative district by representative district in the City of Wilmington, the number of the block census and the total population by block census, and Mr. Theisen’s final population figure as contrasted with Mr. Latchum's population figure, as well as a statement as to the number of persons under or over the “ideal”, or mean, population figure for each representative district accompanied by brief descriptive formulae. We also have appended to Table XV, representative district by representative district, boundaries of added or subtracted areas.56 VIII. Kent County in respect to the Dover Air Force Base and Its Environs and, Delaware State College A substantial portion of the evidence in this case and several maps have been devoted to the issues presented by the Dover Air Force Base and Delaware State College and the voting areas surrounding them. As we have indicated at an earlier point in this opinion, Mr. L. Winfred Hughes in preparing the re-districting of Kent County combined old representative districts to comprise new representative and new senatorial districts, but we lay emphasis on the fact that old election districts were not split. It was stated that the reason that old election districts were not split was that the boards of elections in the various election districts lacked the addresses of the registered voters in many of the more rural portions of Kent County. It followed that if new election districts were created it would have been impossible to determine which registered voters lived in the new election districts in time to hold the primary election in August 1964, or even in time for the 1964 general election in November. If new election districts were created it would have been necessary to have had a general re-registration and it was concluded that the limited time available would not permit this to be accomplished. It is clear, however, that the 1960 Federal census enumeration districts followed the old representative district lines and that therefore no census enumeration district boundary crossed the boundary of any old representative district, i. e., as such existed in 1960. But the census enumeration districts did not respect old election district boundaries and the census enumeration district boundaries did cross old election district lines so that the result of following old election district boundaries in Kent County was to split many census enumeration districts, thereby rendering it impossible to follow the census data in the newly-created representative and senatorial districts. This, of course, made population estimates necessary. We have already set out the method employed by Mr. Hughes in making his estimates. Dr. C. Harold Brown, called by the plaintiffs as an expert, testified that generally voter registration ratios are inaccurate because the level of voter registration will vary from area to area depending on the social, economic and ethnic complexions of the populations. Pinpointing the precise problem in Kent County, he testified that the county contained the Dover Air Force Base and Delaware State College. It cannot be doubted that persons living at the Dover Air Force Base and at the College have residencies of a more transient character than those of persons regularly living in those