FAIRCHILD, Circuit Judge.
On November 6, 1970 the city council, Chicago’s legislative body, enacted a redistricting ordinance dividing Chicago into fifty wards. The city council is composed of aldermen, one elected from each ward for a four year term. Aider-men were elected February 23, 1971, under the redistricting ordinance, and are now serving. Plaintiffs in this case challenge the validity of the ordinance on the grounds that it embodies racial and political gerrymandering in violation of federally protected rights and that the wards are not compact, as required by an Illinois statute, S.H.A. ch. 24, § 21-36. The action was begun and decided in the district court, and an appeal taken, before the February 23, 1971 election.
I. History of the litigation.
Litigation seeking redistricting of Chicago began in 1966. Plaintiffs Sherman H. Skolnick and others challenged the districts as drawn in the 1961 ordinance for deviation from one person-one vote standards. In 1968 the district [832]*832court found deviations in terms of the 1960 census to an impermissible degree, enjoined further general elections under the 1961 ordinance and required a new districting ordinance, based on 1970 census figures, to be enacted and filed by November, 1970. Except for one modification, advancing the deadline and no longer significant, this court affirmed.1
On November 14, 1970, after hearing, the district court held the November 6, 1970 ordinance constitutional.2
On appeal, this court affirmed, but limited our affirmance to rejection of the claim that the districts did not yet come close enough to exact equality of population. In an unreported order, entered December 14, 1970, we said:
“We conclude that, considering the ordinance from the point of view of mathematical precision alone, the district court’s decision that the ordinance fulfills the required standards (Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506, and Kirkpatrick v. Preisler, 394 U.S. 526, 89 S.Ct. 1225, 22 L.Ed.2d 519), is to be affirmed.
“The appellants and the Chicago Bar Association assert that as late as the hearing date the district judge should have permitted the filing of an amended complaint and should have permitted several aldermen to realign themselves as plaintiffs and other Chicagoans to become plaintiffs. These parties claim in substance that notwithstanding the close approximation to precise equality of the wards presented by the ordinance, the ordinance is invalid by reason of alleged gerrymandering which could dilute the voting strength of racial, political and religious groupings of people. Although the district court on its own motion gave some thought to whether this might be true and concluded after examining offers of proof that there was ‘no evidence’ of racial and ‘no substantial evidence’ of political gerrymandering, it cannot be said that the claims of gerrymandering advanced by the appellants were fully litigated or decided on their merits.
“Since these claims were not fully litigated by the parties and since some parties appear to interpret the judgment as deciding them, we consider it appropriate to declare expressly in this order that consideration of the gerrymandering issue has not been foreclosed by the district court’s judgment, which we now affirm, and that appellants or others are free to file a new action if they wish to pursue this issue.”
On December 22, 1970 plaintiffs filed the complaint in the present case. The February 23 election was imminent, and the district court commendably expedited the case. Hearings began December 29, 1970 and continued, with necessary interruptions, through January 18, 1971. On January 22 the district court filed findings, conclusions, and judgment in favor of defendants. Cousins v. City Council of City of Chicago, 322 F.Supp. 428 (N.D.Ill.1971).
Plaintiffs appealed. We denied their motion to enjoin the election, noting among other things that “the election will not defeat or impair our appellate jurisdiction; should appellants prevail, we would have power to order prompt redistricting and a new election; . . . indeed, it is manifest that the ward boundaries established by the ordinance under attack are to be preferred to the prior boundaries which would be preserved by an injunction.”
II. The complaint.
The complaint alleges that the 1970 ward boundaries operate to dilute the votes and voting strength of important elements of the voting population of Chicago, specifically black voters, voters [833]*833of Latin-American origin or ancestry, and independent voters; that such dilution was accomplished by drawing unnecessarily irregular ward boundaries and creating wards not compact; that boundaries were drawn as a gerrymander with intent to discriminate against black, Latin-American, and independent voters, and candidates whom they would support; that the wards are not composed of compact territory as required by state law. The gist of the claims as developed at trial and in argument is that the boundaries were drawn so as to minimize the number of wards in which the majority would be black, or would be so-called independent voters, and to avoid having any ward in which the majority would be Puerto Rican.
Thirteen plaintiffs are individuals, residents and voters within the city. Five were aldermen who voted against the 1970 districting ordinance. Seven are black and one Puerto Rican. At least ten are so-called independent voters. Party designations do not appear on the ballot, but party organizations often endorse candidates. Plaintiffs refer to independent voters as those who “have frequently voted for and actively supported independent candidates for public office, meaning candidates who are not the candidates of any political party.”
Two plaintiffs are unincorporated associations: Independent Voters of Illinois, a statewide organization committed to the advancement of independent politics, including the support of independent candidates in Chicago, and Committee for an Effective City Council, committed to the advancement of independent politics in relation to the city council of Chicago.
III. The districting created by the ordinance.
Printed as part of the opinion is an outline map of Chicago, showing ward boundaries according to the 1970 ordinance
The total population of Chicago, shown by the 1970 census at the time the ordinance was enacted (jater revised) was 3,329,090. Thus the goal was to draw wards each containing %o of that number, or 66,582. The result very closely approached that goal.
The map shows that the shapes of wards are far from perfect geometric symmetry. Wards are required, by an Illinois statute, to “be composed of contiguous and compact territory.”3 In our view there are a number of reasons why perfect symmetry in outline can not be achieved or closely approached.
The eastern boundary of the city is, for the most part, the curving shore of Lake Michigan. The other boundaries have substantial irregularities. One north-south dimension is over 26 miles, and one east-west dimension in the central portion less than 7. Within the external boundaries are various natural and man-made barriers and substantial areas without resident population, such as Lake Calumet, rivers, expressways, parks, railroads, and concentrations of industry, all of which could have a bearing on whether a particular ward structure reasonably met the compact territory requirement. Census tracts, which were largely relied upon in the process of districting, vary considerably in area, shape, and number of residents.
In considering the plaintiffs’ claim, founded on state law, that the wards are not compact, we look for guidance to the Supreme Court of Illinois. In dealing with a requirement that senatorial districts be formed of compact territory, it has said: “There is a vast difference between determining whether the principle of compactness of territory has been applied at all or not, and whether or not the nearest practical approximation to perfect compactness has been attained. The first is a question which the courts may finally determine; the latter is for the legislature.” 4 Notwithstanding the [834]*834irregularities in outline of wards, we could not determine from the present record, if it were our place to do so, that the principle of compactness was not applied at all.
Nonetheless, it is our view that when other facts point to a probability that there has been invidious discrimination in drawing ward lines, deviations from maximum compactness may be considered along with these other facts in determining whether such discrimination (violating federal rights) has occurred.
At the time of trial, 1970 census figures on racial composition of census tracts were not available, and the evidence at trial tending to show where black people and people of Puerto Rican origin live and the percentage they constituted in various wards was testimony of witnesses, based on various studies. On appeal, we have permitted the parties to file copies of “Racial Composition of Census Tracts, 1970 Census Data” and computations therefrom showing the percentage of the population of each ward which is negro. Using these figures (which to a considerable degree substantiate the estimates made at trial) the following propositions appear:
There are 15 wards in which a majority of the residents are negro.
There are 13 of those wards in each of which more than 75% of the residents are negro. These wards are in two areas of the city. The 2d ward (91.9% negro) is just south of the downtown business “Loop” area and the 3d (99.0%), 4th (91.1%), 16th (95.3%), 20th (97.4%), 17th (97.6%), 6th (97.-3%), 8th (77.8%), and 21st (86.4%) string out toward the south. The 27th ward (89.8%) is just northwest of the “Loop” and the 28th (83.5%), 29th (88.-6%), and 24th (98.6%) are west and southwest of the 27th.
The eleven wards bordering the south side group have the following percentages of negroes: 1st, which also borders the west side group (35.8%); 5th (57.-5%); 7th (26.9%); 10th (9.2%); 9th (28.3%); 34th (66.3%); 19th (2.2%); 18th (28.2%); 15th (8.3%); 14th (6.-2%); and 11th (11.3%).
The six wards (other than the 1st) bordering the west side group have the following percentages of negroes: 42d (39.2%); 26th (4.7%); 31st (1.4%); 37th (12.5%); 22d (23.4%); and 25th (36.3%).
The largest percentage of negroes for any of the other 20 wards is 5.3%.
Plaintiffs contend that if the lines had been drawn with indifference to the color of the residents, there would have been more wards with a majority of black people.
Testimony at trial tended to show that there are about 80,000 city residents of Puerto Rican origin, most of whom live in the 26th, 31st, and 33rd wards. As the wards were drawn the Puerto Ricans are a substantial minority in each (40-45% in the 26th, 30-35% in the 31st and 25-30% in the 33rd). The claim is that had the wards been drawn differently, Puerto Ricans might have had a majority in one or possibly two.
Plaintiffs produced evidence which they claim tended to show that the voters they refer to as independent live in certain areas and that the ward lines might have been drawn so as to give them a majority in more wards.
IY. The drawing of the 1970 ward map.
Alderman Thomas E. Keane was chairman of a subcommittee of the Council’s Committee on Committees and Rules. The subcommittee conducted public hearings from October 13 to November 4, 1970, with Alderman Keane presiding. On November 5 the full committee adopted the ward map reported by the subcommittee, and on November 6 the council enacted the districting in the form of an ordinance.
At the public proceeding before the subcommittee, Alderman Keane worked from a city map showing census tracts. In selecting territory for a ward, he would announce the number of a census [835]*835tract. Then its population would be announced. Clerks kept a running total for that ward until it reached approximately the ideal one-fiftieth of the city’s population. Adjustments were made from time to time, either by shifting census tracts between wards or by dividing them and assigning constituent enumeration districts to different wards. Defendants contend that selection of areas for inclusion in any ward was motivated only by considerations of contiguity, compactness, and obtaining a total population for each ward as close as possible to the ideal.
Plaintiffs discovered during the trial, and produced proof, that an earlier and confidential version of a proposed ward map had been prepared in the latter half of September with Alderman Keane’s knowledge and approval. Census figures first became available September 10, though subjected to recalculation from time to time thereafter. The earlier map was prepared in the library of Alderman Keane’s law office, across the street from the city hall, by city employee Edwin Bell and three university student interns who were paid by the city for this particular project. Although the district court found that preparation of this map was “an academic exercise,” we consider the finding clearly erroneous, and that such preparation was at least a trial run for the process later conducted at public hearings. It is important because certain conversations in the course of its preparation showed that race was at least thought about in connection with particular ward lines. A lack of candor concerning the existence and purpose of the Bell-student map detracts nothing from the weight of such evidence.
Mr. Bell was deputy chief administrative officer for the Council Committee on Finance, of which Alderman Keane was chairman. Bell was also a lecturer at the University of Illinois Circle Campus. During the spring of 1970, Mr. Bell and Professor Murray of the same university, with the approval of Aider-man Keane, had planned a City Council Urban Intern Program, to begin in the fall term, 1970. Three students were selected. On June 29, Alderman Keane had written to the chairman of the department of political science about “the possible appointment of one or more graduate students as legislative interns attached to the Committee on Finance.
“I would be pleased to have one or more of your students perform as interns under the direction of Mr. Bell and Dr. Murray. It is understood that these students will perform those research projects and other tasks which are assigned to them by members of my staff.”
In early September, 1970, the remapping subcommittee, of which Alderman Keane was chairman, was appointed. At that time the court-imposed deadline for enactment of a redistricting ordinance was October 1. Although census figures had been expected by August 1, they were not yet available, but became so (though subject to further revision) September 10. About September 8, after obtaining the approval of Alderman Keane, Bell contacted Murray, and talked again on the 11th. Bell told Murray that the city was engaged in a problem of redistrieting, had to get the project finished under a certain time pressure, and that this would be a good project to introduce the students to the internship program. Murray telephoned or telegraphed the students and told them to report to Bell. They worked from about September 17 to about October 1.
The work was done in the library of the law office of Alderman Keane, Alderman Wigoda, and their associates. Alderman Keane was in and out and conversed with or in the presence of the student interns. The procedure was similar to that which Alderman Keane later followed in the public hearings, with Bell selecting census tracts for inclusion in a ward, and the student interns performing the clerical tasks of tallying and adding.
Mr. Taylor, one of the student interns, testified that Alderman Keane as well as [836]*836Mr. Bell told them about the importance of redrawing the map, the opportunity they would have to learn something, and that they should not say anything to anybody else; that Bell said that Aider-man Wigoda wanted to get rid of certain areas in his ward, but after the lines were drawn the alderman pointed out that they had also cut out one of his favorite precincts, and they restored it; that a committeeman in another ward had sent in notes as to how he wanted his ward drawn; that they worked on the wards around the rim and then inwardly but there were two which were drawn ahead of their turn, Alderman Keane’s 31st, and Mayor Daley’s ilth.
Another student intern, Mr. Kazemek, testified that Bell told them they would be involved in drawing a new ward map for the city; that on one occasion Aider-man Keane remarked that “if Alderman Despres were left out of his ward with the redrawing he would scream and holler;” that at the same time Alderman Keane said that regardless of what the map looks like everyone would accuse him of gerrymandering; that at one time Alderman Keane pointed to his own 31st ward and said “That’s the key;” that another alderman came in, looked at his ward, and talked to Mr. Bell, about it; that Bell told the student interns, “we’re trying to have it finished by October 1.”
Mrs. Erne, the third student intern testified that they were instructed to make the wards as compact as possible and to try to keep all aldermen and committeemen in their wards; that they had lists of addresses of both (which were produced in court); that one day they noticed they had left Alderman Despres out of his ward and Bell redrew the line; that later when Alderman Keane came in he was told of this and laughed and made the remark about a lot of hollering; that Alderman Keane had looked at his own ward; that Aider-man Wigoda commented about their leaving out one of his good precincts.
The student interns received regular stipends from the university during the academic year and worked on other internship projects after October 1st. The city also paid them for the time they worked on the map, but not for their other work.
The census office changed the figures on several occasions while Bell and the student interns were working, and the breakdown into enumeration districts (census units smaller than tracts) never became available to them.
On September 25, 1970, the city applied to the district court in the Skolnick case for an extension of the deadline to November 10, pointing out that there were still discrepancies in tract figures requiring recalculation and that enumeration district figures would be required in order to divide tracts. On October 2, the extension was granted. Alderman Despres petitioned this court for a writ of mandamus, which was denied. In the petition filed October 6, it was presciently suggested that the city must already have prepared a reapportionment plan. The city’s response was that the suggestion was made of “evanescent stuff.”
It is true that the Bell-student map did not reach the mathematical precision later reached by the ordinance, but Bell and the student interns worked with such figures as were available at the time, and while the October 1 deadline was still in force.
Alderman Keane never testified concerning the Bell-student map. Plaintiffs took his deposition for discovery purposes before they knew about it. Although he was emphatic that the map he used at the public hearings was the only map he used, he did not volunteer the facts about the Bell-student map in answers where such disclosure would have been appropriate. His deposition, though taken for discovery, was offered by defendants and received over plaintiffs’ objection. He was not called to testify at trial.
Defendants called Mr. Bell, who corroborated much of the student interns’ testimony. He testified, however, that [837]*837the project was an academic project and that Alderman Keane’s comments when he saw the work were “Grandfatherly.” He testified “The value to be gained [by the students] from the ward map that they drew would come out in terms of the changes in population, in terms of numbers, in terms of the shift in populations. They would see what the configuration of the city looked like.”
He also testified that the student interns performed a clerical function, and therefore the project was a failure as an academic program. He explained, “When I devised the project, the project, of course, was to be a total involvement project on the part of the interns and myself, and I was to serve as a gatekeeper, more or less, in the performance of the redistribution of the wards. What it ended up with was very close to something that I think most fathers are familiar with when they buy their children a railroad train. They set it up in the livingroom, and they never give the transformer, but they let the kids stand by and watch while the train runs around the track.”
Professor Murray testified that he had seen Mr. Bell on January 6 shortly after defendants learned that plaintiffs were in touch with or had subpoenaed the students. Mr. Bell “appeared to be quite shaken.” With respect to the character of the map as an academic project, “Mr. Bell, to the best of my recollection, stated that that would be a difficult position to take. I am not sure whether he used the word ‘difficult’ or not, but Mr. Bell suggested that he would not be able to take that position.” The district court believed Bell, notwithstanding the impeachment by Murray’s testimony, and made a finding, which appears between paragraphs numbered 37 and 38, to the effect that the Bell-student map was an academic exercise. With all respect, and due regard to the opportunity of the trial court to judge credibility, we deem the finding clearly erroneous.
We think it clear from all the circumstances that the project on which Bell and the interns were engaged had.a serious and substantial purpose for the benefit of the city. The October 1 deadline was approaching, and until it was extended, no one could know whether and for how long it would be extended. It would only make good sense to have on hand a map produced with the best figures available. In the public hearings when Alderman Keane began the process of selecting census tracts for inclusion in particular wards, he did not completely follow the Bell-student map, but did often appear to make similar choices. He proceeded with reasonable assurance that the method he was following would produce a result, and it seems doubtful that he could have had such assurance without preliminary work. At the very least, the Bell-student project was a trial run for the task later performed at the public hearings.
V. The findings and evidence with respect to considerations of race.
The crucial findings of the district court with respect to claims of racial gerrymandering are contained in paragraphs numbered 19, that census data were the sole basis for shaping of wards; 30, that the determination was not based on information of racial or ethnic distribution; 32, that there is no evidence that the council intended to dilute the vote of black people or other ethnic groups; and 33, that the 1970 ward map did not have the effect of such dilution.
Since these findings disposed of claims of infringement of fundamental constitutional rights, though not infringement directly of first amendment rights, we think our duty on appeal is to subject the findings to specially close scrutiny.5 As will be stated in more de[838]*838tail, we think there is substantial evidence tending to show that Alderman Keane considered the race of residents at least with respect to particular lines and areas, and, since he directed the drawing of the map and made the choices of territory, it seems fair to impute his consideration to the council in its enactment of the ordinance. Although we are not prepared to measure, on this record, any discriminatory effect which may have resulted, we think that the findings must be set aside until the question has been more fully explored in the district court.
We summarize in the following paragraphs the evidence offered to show that race was considered in drawing the map:
Conversations concerning the 7th ward.
The new 7th ward has 26.9% black residents, according to the census figures filed in this court. It lies between Lake Michigan and the 8th ward, which has 77.8% black residents.
The former 7th ward, under the 1961 ordinance, extended somewhat farther north and not as far south, and was believed to have between 55 and 60% black residents. It was served by Alderman Bohling, who is white. Mr. Taylor testified that “Mr. Bell wanted to be able to keep Alderman Bohling in the 7th ward.”
The Bell-student map contained a 7th ward which would, according to census figures, have 29.4% black residents. At the subcommittee hearings, the ward was re-drawn several times. At one stage Tract 4603, which has a population of 8,885, 93.3% white, was included in the 8th ward, represented by Aider-man Cousins, a plaintiff here, who is black. Alderman Keane shifted Tract 4603 into the 7th ward, offsetting that by a shift of predominantly black tracts from the 7th to the 8 th, remarking to Alderman Cousins about Tract 4603, “I understand they have a lot of Polish voters over here, and you don’t want to represent them”. Alderman Keane testified he did not recall this statement.
It must be said that putting Tract 4603 into the 7th ward, tended to make that ward more compact. If the statement was made, however, it indicated at least awareness of the racial composition of the area being transferred, although we do not suggest that proof of awareness alone would establish invidious discrimination.
Conversation about the 31st ward
The 31st ward is represented by Alderman Keane. Its present population is 1.4% black, according to census figures, and 30-35% Puerto Rican according to testimony at trial. The present (1970) north and south boundaries are the same as on the 1961 map, except in length and except for an irregular boundary near the east end of the south boundary. Tracts 2306 and 2313, now included at the west end were not part of the ward on the 1961 map, and Tract 2425 and part of 2426 are not now included although they were part of the southeast corner of the ward on the 1961 map. Puerto Ricans live in the eastern portion of the ward, in the portion eliminated in 1970, and to the north, east, and south of the east end of the ward. Adding territory to the west of the 1961 ward resulted in a lower percentage of Puerto Ricans than if territory to the east had been added.
Taylor testified that at one point while the 31st ward was being drawn, “I had suggested a tract that would have [839]*839brought the figure up to the required number, and Mr. Bell said that we couldn’t include those tracts on the east side of the ward, because that area had changed and was now black and Puerto Rican, I think he said.” Kazemek testified that there was some discussion about moving the 31st ward west; he thought it was Mr. Bell who made reference to it.
Conversations about the 14th and 16th wards.
Alderman Burke represented the 14th ward and Alderman Sheridan the 16th. Both aldermen are white. There was virtually undisputed testimony that Alderman Keane said something to Bell and the student interns to the effect that it was important to draw ward boundaries so that these two could be reelected. Although there was a conflict whether he mentioned race, the circumstances make it appear probable that race was the consideration Alderman Keane had in mind. As drawn by Bell, apparently after the conversation, the 16th ward, as well as the 14th, would probably have been majority white. It must be noted, however, that as ultimately drawn, the 16th ward is 95.3% black. The 14th is 6.2% black.
Mr. Taylor testified that Alderman Keane mentioned these wards and said, “The way you have it drawn isn’t any good. We have to save those two young guys. They can’t run in those wards. Those wards are all black and there is nowhere for them to live. These are young people. The City Council needs young people. A lot of us are getting old. These are bright people with college degrees, and they have a lot to contribute to the city.” Taylor testified, “So he said that we should change that area if we could so that there would be some way for them to run in those wards.”
Mr. Bell testified that Alderman Keane said, “You can’t do that. You’re taking two young and bright aldermen, and you are taking them out of the Council. They have bright political futures;” that Alderman Keane did not say anything about the black population in those two wards.
Mr. Kazemek testified, “We were working on an area of the city — I can’t even recall which area but Alderman Keane pointed to that area and he made the statement that ‘You can’t do that to those two aldermen.’ I recall the name Sheridan being mentioned. He said, ‘You can’t do that to them.’ He said, ‘They are bright and educated young people and we need that kind of person in the City Council.’ ” Mr. Kazemek did not recall that Alderman Keane said anything about the racial composition of the wards.
Mrs. Erne testified, “ . . .1 recall Mr. Sheridan’s name being mentioned, Mr. Keane mentioned it, Mr. Keane coming in and saying that it would be difficult for him to be reelected in that ward that we drew, and then he proceeded to say, which makes me think that another man was mentioned, that they were two young men, with college educations, and the City Council was in need of fine men like that.”
The district court announced orally several findings (not reflected in 322 F. Supp. 428) about this conversation. In certain respects these findings recited matters of record, already pointed out. In other respects, they are wholly inconsistent with the record and need not be treated here.
The 18th ward.
The present 18th ward (1970) is one mile wide, north to south, throughout almost all its length. It is approximately 5 miles long, east to west, except for irregular boundaries in its northeast and southwest corners. 28.2% of its residents are black. The areas in which black people are concentrated are in the eastern end. If the ward were drawn so as to extend farther north from its southern boundary and not so far east from its western boundary, it would be more compact, would have fewer black residents, and those left out would be joined with some other ward. The [840]*840shape of the 18th ward as drawn suggests that it may have been an instrument in cutting into the area predominantly inhabited by black people so as to absorb them into a ward in which they would be a minority instead of including them in another ward in which they might be part of a majority of black residents.
At the trial a witness demonstrated the possibility of dividing the area now covered by wards 12, 13, 14, 15, 16, 17 and 18 into a different set of wards of equal population. In such redraft, at least wards 15 and 18 more closely approximate a square.
The statistical experts.
One of the witnesses called by plaintiffs was Dr. Philip M. Hauser, director of the Population Research Center of the University of Chicago. He has had many years of experience with the United States census, including being acting director for the 1950 census and chairman of the advisory committee for the 1960 and 1970 census. He also has represented the United States on the Population Commission of the United Nations.
Dr. Hauser testified, in answer to the question whether racial or ethnic considerations were taken into account in the drawing of the new ward map “ . it is perfectly clear to me that the ward lines are drawn in such a way as to concentrate Negro population within wards and as to have majority white population where Negro populations are subsumed. . . . ” He indicated several examples, including ward 18.
Dr. Hauser also testified, “It is my judgment, based on well established mathematical probability theory, that if race were not taken into consideration, or ethnicity in the case of Puerto Ricans, that all ward lines which cross well-known boundary lines or between blacks and whites and Puerto Ricans, and the remainder of the population, would have an equal probability of one or the other being a minority group.” He said that the number of wards crossing the dividing lines in which black people or Puerto Ricans are the minority is “far above the level that probability expectations would indicate, or another way of saying that, it is perfectly clear to me that the ward lines on that map could not possibly have been drawn by anyone who was color blind.”
Dr. Paul Meier, acting chairman of the department of statistics at the University of Chicago, accepting the assumption that if race or ethnic origin were not taken into consideration in drawing the lines it is equally probable that a ward crossing the racial boundary would have a black as a white majority, computed that if 14 wards crossed the boundary the probability that 12 would have white majorities and 2 white minorities is only 1 in 150.
With all respect, we point out that the theory of probability may have less significance for our present purposes to the extent that Alderman Keane’s freedom of choice may have been limited by the varying shape and sizes of census tracts, and the desire, without invidious intent, to break as few tracts as possible into enumeration districts. We are, in short, at a point where a demonstration that the wards could, with the census figures at hand, have been drawn with similar equality of population, and no less compactness, but into more wards having a black or Puerto Rican majority would be more persuasive than an opinion that if wards had been drawn with indifference to race a greater number of black or Puerto Rican majority wards would have been more probable.
History and general background.
One of plaintiffs’ witnesses was Mr. Donald Rose, director of research and communications for the National Catholic Conference for Inter-Racial Justice. He described studies he had made tending to show that as the black population of Chicago increased, the redistricting ordinances in 1931, 1947 and 1961 had changed ward boundaries in a manner corresponding to the growth of areas in which the residents were predominantly black, so as to keep at a high figure the number of wards in which the majority of residents were white.
[841]*841Alderman Despres testified: “I think what you don’t understand, Mr. Neal, is that every alderman in the city of Chicago is acutely interested and aware of the racial composition of the city. There is no subject that preoccupies the City Council and the aldermen of Chicago more insistently than that subject. Every alderman has a great deal of information about where the black persons in Chicago live and where the white persons live. . . . It is a subject which preoccupies aldermen almost pathologically.”
Alderman Hoellen testified to a conversation in October 1970 with Aider-man Wigoda, who Hoellen considered “has always been my rather vocal foe at City Hall.” The latter indicated that the council “would be inundated with new Negro aldermen, come the remapping of 1970,” and said to Hoellen, “Suddenly, we have much in common.”
For an example of a public issue in Chicago which turns on racial residence patterns, see Gautreaux v. Chicago Housing Authority, 296 F.Supp. 907 (N.D.Ill.1969), 304 F.Supp. 736 (N.D.Ill.1969), 436 F.2d 306 (7th Cir. 1970).
The testimony just cited with respect to history and background at least suggests that claims that 1970 ward lines were chosen for the purpose of minimizing the voting strength of black people must not be found meritless without careful scrutiny.
VI. Conclusion with respect to claims of racial and ethnic gerrymandering.
Given the proposition that the city council is to be made up of aider-men, one elected by each ward, it follows that every resident has a right that the wards be equal (as nearly as feasible), so that the alderman who represents him represents the same number of residents (as nearly as feasible) as every other alderman, and that at least in mathematical terms each resident has representation in the same ratio as every other resident of the city. As decided in the Skolnick case, the 1970 ward map fulfilled this right in terms of the census figures known at the time of enactment.
Wards of unequal size, and resulting unequal representation, are one facet of invidious discrimination from which the 14th amendment protects such resident. But there may be other facets, as claimed here. Even though quantitative equality be preserved, members of a racial or ethnic group are protected, in our opinion, from having ward lines drawn for the purpose of diluting or minimizing the voting power of such group. We by no means assume that such group will always vote as a block, but to the extent its members choose to do so, they are to be protected from purposeful maneuvers to deprive them of effectiveness
Gomillion v. Lightfoot6 held that “When a legislature thus singles out a readily isolated segment of a racial minority for special discriminatory treatment, it violates the Fifteenth Amendment.” That case involved the creation of municipal boundaries and black people were the butt of the discrimination. Although Gomillion was grounded on the 15th amendment, which prohibits abridgement of the right to vote on account of race, it was decided two years before Baker v. Carr7 opened up the courts to claims that malapportionment of legislatures denied equal protection under the 14th amendment. Recently, the Supreme Court has cited Gomillion as an example of “no hesitation in striking down those contrivances that can fairly be said to infringe on Fourteenth Amendment rights.” 8
Persons who may correctly be referred to as Puerto Rican (or Mexican or Latin American, or Spanish speaking Americans) are not a distinct race, as [842]*842anthropologists define the term, although some of the common usages of the term would apply.9 We do not deem it necessary to examine whether the 15th amendment, which forbids denial or abridgement of the right to vote on account of “race” is properly to be construed as protecting ethnic as well as racial groups from the sort of invidious dilution of voting power charged here. We are satisfied that the equal protection clause of the 14th amendment provides such protection in any event.
We note that although the challenges raised in behalf of black and Puerto Rican citizens in Wright v. Rockefeller10 were unsuccessful because of failure of proof, there is nothing in the opinions to suggest that the presence of Puerto Ricans among those allegedly discriminated against detracted from plaintiffs’ case. On page 58, 84 S.Ct. on page 606, for example, the Court said, “We accept the District Court’s finding that appellants have not shown that the challenged part of the New York Act was the product of a state contrivance to segregate on the basis of race or place of origin. That finding was crucial to appellants’ case as they presented it, and for that reason their challenge cannot be sustained.”
Whitcomb v. Chavis11 involved a claim that the vote of black persons and poor persons was invidiously diluted. Again the challenge failed for want of proof, but the language chosen by the Court implies, it seems to us, that this type of challenge need not be based on race in order to be successful: “But there is no suggestion here that Marion County’s multi-member district, or similar districts throughout the State, were conceived or operated as purposeful devices to further racial or economic discrimination.”12
We take judicial notice that according to revised census figures Chicago has a population of 3,366,957, of whom 1,102,620, or 32.7%, are black. The 15 wards in which (according to census figures) a majority of the residents are black elect 30% of the city’s aldermen. 16 wards would elect 32%, 17 wards 34%. Any comparison of the percentage of residents who are black with the percentage of the council to be elected by wards containing a black majority has significance only because of residential patterns in which black residents are concentrated in large, well defined areas. A minority group completely and equally dispersed throughout the city could not be in the majority in any ward. Given a minority as substantial as 32-33%,13 residential segregation, [843]*843and division into 50 equal wards, the number of majority black wards is necessarily substantial, although the exact number may vary for a number of reasons even if purposeful discrimination is not a factor. There is no principle which requires a minority racial or ethnic group to have any particular voting strength reflected in the council. The principle is that such strength must not be purposefully minimized on account of their race or ethnic origin.
Plaintiffs clearly established, in our opinion, that the location of predominantly black and Puerto Rican areas was considered as Alderman Keane prepared to formulate the new ward boundaries. There is evidence from which it could be inferred that the contours of the 31st ward were chosen for the purpose of avoiding the presence of Puerto Rican residents, that those of the 18th ward were chosen for the purpose of putting black people in a minority in that ward in place of joining those people with other black people in a possible majority status in another ward and, perhaps less readily, that the location and contours of the 14th were chosen so that black people would be an insubstantial minority therein. There is also opinion evidence that the ward lines were discriminatory, and evidence that for many years successive ward maps had been devised so as to maximize the number of white majority wards.
It does appear that the 1970 map produced 15 majority black wards (14 of which elected black aldermen in 1971) whereas the previous council contained only ten black aldermen. It must be said that the transcript of proceedings before the subcommittee during which Alderman Keane assembled census tracts into wards does not on its face suggest anything other than an attempt to create wards with equal population and at least some degree of compactness. One of plaintiffs’ experts, Mr. De Vise, although of the opinion “that race was a factor in the delineation of wards,” went on to say that “I do not think that race was a major consideration. I think that the major consideration was probably the retention of the old wards.”
Plaintiffs did not produce other persuasive circumstantial proof that the ward boundaries were the product of purposeful discrimination, such as demonstration that one or more maps could be drawn, using the data available to the city in October, 1970, achieving population equality, and at least a similar degree of compactness, which would produce more than 15 wards with a clear majority of residents of one or the other or both the black and Puerto Rican groups. Defendants, on the other hand offered no proof that this could not be done.
Although we are convinced that the district court took a clearly erroneous view of the Bell-student map project and thus failed to consider important elements of plaintiffs’ case, we are unable to say that plaintiffs’ evidence so clearly established that the ward boundaries were the product of purposeful discrimination as to permit this court so to find. If the litigation concerned ordinary interests of the plaintiffs alone, we might well conclude that they must bear the burden of failure to establish more clearly all elements of their case. We are of the opinion, however, that the type of rights involved here requires special care that claims of impairment be thoroughly inquired into.
It might, indeed, be argued that plaintiffs have shown enough so that the matter could be resolved by returning the matter to the district court for the limited purpose of a demonstration whether or not, following an objective standard, rationally related to redistricting and indifferent to race and ethnicity (such as, perhaps, reaching “the nearest practical approximation to perfect compactness”) 14 and achieving population equality, a remapping would produce more than 15 wards with a clear majority of residents of one or the other [844]*844or both the black and Puerto Rican groups.
We conclude, however, that the proper and just result, is a new trial of the issues. Should plaintiffs succeed, and a new partial or complete ward map be decreed, jurisdiction has been preserved so that the district court could order an election for aldermen from the wards affected, to serve for the balance of the current four year term, and declare such seats on the existing council vacant promptly after said election.
If plaintiffs are unable to succeed on retrial, defendants will be entitled to judgment in this action. We do feel called upon to observe, however, that considerable revisions in census figures have been announced since enactment of the 1970 ordinance and since the election for the current term in February 1971, and it has been suggested that the revised figures produce a substantial disparity in population among the wards. We note that the decree in Skolnick requires that the 1970 ordinance shall govern all elections until after the 1980 census.15 Under the terms of our affirmance of Skolnick, earlier referred to, such provision must necessarily yield to a decree in this action if plaintiffs are successful upon remand. We also observe that if the changes in census data show sufficient disparities among wards that the 1970 map could no longer be sustained under one person-one vote constitutional principles, the decree must yield to those principles and the council would have the duty of drawing a new ward map for the purpose of the election in 1975.
VII. Consideration of political factors in drawing ward lines.
Plaintiffs produced evidence that one motivation in drawing the ward lines was to keep each incumbent alderman and the incumbent ward committeemen within a ward which approximated his ward according to the 1961 map and to avoid pitting one incumbent against another in any new ward.
They also produced evidence tending to show that in Chicago there are certain areas where so-called independent voters are concentrated, and that the 1970 remap involved intentional concentration of such voters in two wards for the purpose of minimizing the number of aldermen such votes might elect.
The groups which are the butt of the discrimination claimed by plaintiffs are somewhat amorphous: in the first instance they are the persons who might want to support a non-incumbent candidate and persons who might be such candidates; in the second instance, persons who habitually are less likely than others to favor party endorsed candidates and more likely to favor candidates who are not endorsed. We are of the opinion that disfavoring of such groups by those who are drawing the districts, even if identification and community of political faith were proved with much greater definiteness than here, remains among the non-justiciable political questions.
The only expression by the Supreme Court cited by plaintiffs in support of this branch of their case is a reference in Fortson v. Dorsey16 to minimizing or cancelling out the voting strength of “racial or political elements of the voting population” in dealing with possible invidious discrimination in creating multimember districts. Any force in the reference, however, is offset by the Court’s affirmance of a decision that political gerrymandering does “not raise questions under the Federal Constitution.” 17 Mr. Justice Harlan, concurring, concluded that the court was affirming the district court’s ruling rejecting any federal constitutional attack on partisan gerrymandering.18
[845]*845Additionally, lower courts which have considered allegations of political gerrymandering have uniformly rejected the justiciability of such claims. See Sims v. Baggett, 247 F.Supp. 96, 104 (M.D. Ala.1965); Sincock v. Gately, 262 F.Supp. 739, 833 (D.Del.1967); Meeks v. Avery, 251 F.Supp. 245, 250 (D.Kan. 1966); Bush v. Martin, 251 F.Supp. 484, 510, 513 (S.D.Tex.1966); Kilgarlin v. Martin, 252 F.Supp. 404, 432 (S.D.Tex.1966); rev’d on other grounds, Kilgarlin v. Hill, 386 U.S. 120, 87 S.Ct. 820, 17 L.Ed.2d 771 (1967). In particular we note the excellent discussion by Judge Cannella, concurring in Wells v. Rockefeller, 311 F.Supp. 48, 54 (S.D.N. Y.1970), aff’d 398 U.S. 901, 90 S.Ct. 1696, 26 L.Ed.2d 60 (1970).
Plaintiffs have not persuaded us that these lower court cases were wrongly decided, nor demonstrated that their present claim meets the criteria of justiciable question as set forth in Baker v. Carr, 369 U.S. 186, 217, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962).
VIII. Standing to sue.
The district court found that no plaintiff claimed an injury or impairment of an individual right, and hence had no standing to sue. The basis noted by the court was that the plaintiffs who testified were not dissatisfied with their own wards. We think, however, that the interest involved in the racial or ethnic gerrymandering claim is not limited to one’s interest as a voter in a ward, but includes the interest of a black or Puerto Rican plaintiff as a resident of the city that the voting strength of his group is not diminished by invidious discrimination. Such interest is impaired, if plaintiffs’ assertions have merit, even though the particular plaintiff is in a ward where his group is in the majority.
Although reapportionment litigation necessarily affects the interests of a large class, and actions to compel reapportionment are customarily brought as class actions, we think the class action device is not essential. The court’s proper concern is whether there are before it parties alleging “such a ‘personal stake in the outcome of the controversy,’ Baker v. Carr, 369 U.S. 186, 204 [82 S.Ct. 691, 703, 7 L.Ed.2d 663], as to insure that ‘the dispute sought to be adjudicated will be presented in an adversary context and in a form historically viewed as capable of judicial resolution.’ Flast v. Cohen, 392 U.S. 83, 101 [88 S.Ct. 1942, 1953, 20 L.Ed.2d 947].” 19
We conclude that plaintiffs here who allege they are black or Puerto Rican and therefore among the group whose voting strength is allegedly purposefully diluted have such standing.
The district court found that the action could not be brought as a class action because plaintiffs had failed to establish the existence as classes of all black voters of the city and all voters of Puerto Rican or other Latin American ancestry. The finding was apparently based on the fact that there are black residents of Chicago, perhaps many in number, who favor the remap ordinance, and plaintiffs clearly do not represent them. It would be fanciful to suppose there were not a large number of black persons and Puerto Ricans who agreed with plaintiffs. There is authority that in similar situations, the fact that some members of an alleged class are opposed to the claim is irrelevant.20 But in any event, we think plaintiffs have sufficient standing as individual members of the groups allegedly discriminated against.
IX. Use of depositions.
Prior to trial, plaintiffs, with leave of court, took the depositions of Alderman Keane and several others. Because of the exigencies of time the district judge had the depositions taken before him[846]*846self. There were colloquies supporting the thought that the depositions were taken for purposes of discovery. After plaintiffs rested at trial, defendants offered the depositions of Alderman Keane and several others. Plaintiffs objected, but the court received them.
Under the circumstances, defendants could use these depositions, under Rule 32(a) (3), F.R.Civ.P. only if the court found, under (E) “that such exceptional circumstances exist as to make it desirable, in the interest of justice and with due regard to the importance of presenting the testimony of witnesses orally in open court, to allow the deposition to be used.” In the light of our disposition of the case, we need not decide whether the depositions were properly admitted under (E). If the exigencies of time, and the other attendant circumstances fulfilled (E), these considerations will not prevail at retrial.
The judgment is reversed and the cause remanded for further proceedings consistent with this ' opinion. Under Rule 23 of the local appellate rules of this court, adopted April 4, 1972, retrial will be had before a judge other than the judge who originally heard it, unless all parties request that the same judge retry the case.