GRIFFIN B. BELL, Circuit Judge.
This is the third in a series of suits filed in this court immediately following the decision of the Supreme Court in Baker v. Carr, 1962, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663. In Sanders v. Gray, N.D.Ga., 1962, 203 F.Supp. 158,1 we struck down the Georgia County Unit System of primary elections in the form in which it then existed because of resulting invidious discrimination to the plaintiffs who were residents of Fulton County. Then in Toombs v. Fortson, Civil Action No. 7883, N.D.Ga., 1962, 205 [278]*278F.Supp. 248, again on the basis of resulting invidious discrimination, we found the General Assembly of Georgia to be malapportioned and required apportionment of at least one body of the Assembly according to population. In that case, and for the same reason, we struck down the statute requiring the election of senators on a rotation basis among the counties in each senatorial district. We withheld injunctive and other relief pending action on the part of the responsible state officials, executive and legislative, before the 1963 session of the General Assembly appropriate to ending the proscribed discrimination. Our action in each of these cases was premised on the denial to plaintiffs of equal protection of the laws under the Fourteenth Amendment to the Constitution.
Plaintiffs here are residents and qualified voters of Fulton County, Georgia, and as such are entitled to vote in the primary and general elections for members of the House of Representatives of the Congress of the United States from the Fifth Congressional District of Georgia. They likewise premise their cause on the Fourteenth Amendment, seeking the invalidation of the Georgia statute which sets up the districts for the election of the ten members of the House from Georgia and which provides the method of election. Georgia Code, Section 34-2301. They contend also that this statute is void as being contrary to Art. I, Section 2 of the Constitution of the United States which provides that members of the House of Representatives shall be elected by the people.2
Jurisdiction and three-judge status are based on Title 28 U.S.C.A. §§ 1343, 2201, 2202, 2281, 2284 and 42 U.S.C.A. §§ 1983 and 1988. Injunctive relief is sought against the defendants, the Governor and Secretary of State of Georgia, to the end that no elections may be held except on a state-at-large basis pending redistricting on “an equitable and representative” basis.
Georgia was awarded two members in the House of Representatives of the Congress under the Act of April 14, 1792 which apportioned representatives among the several states. 1 Stat. 253 (1792). The number of representatives allocated to Georgia increased gradually, based on population, from two to nine under the census of 1830. 2 Stat. 669 (1811); 3 Stat. 651 (1822); 4 Stat. 516 (1832). And elections in some states were on a district basis but in Georgia and in some of the other states they were on a state-at-large basis for nearly fifty years. Congress, in 1842, provided that representatives, where a state was entitled to more than one representative, should be elected from districts composed of contiguous territory, equal in number to the number of representatives to which a state might be entitled with no one district electing more than one representative. 5 Stat. 491 (1842). Georgia set up the district system in 1843 based on the 1840 census and has adhered to it at all times since then, including the election of members to the Congi-ess of the Confederate States of America during the period of secession. Ga.Code, 1861, p. 12.
Districts were not required by the Apportionment Act of 1852, 9 Stat. 433 (1852), but were again required in 1862. 12 Stat. 572 (1862). In 1872 another element was added to the system. Not only must each district be of contiguous territory but also of an equal number of inhabitants as nearly as practicable. 17 Stat. 28 (1872). Under this Act Georgia was allocated nine representatives. Congress continued this system in 1882 and 1891 and the number of representatives from Georgia was increased to ten in 1882 and eleven under the 1891 Act. 22 Stat. 5 (1882); 26 Stat. 735 (1891). In 1901 Congress added the requirement that the districts be compact, 31 Stat. 733 (1901), and the 1911 Apportionment Act provided that:
“Representatives to the Sixty-third and each subsequent Congress [279]*279shall be elected by districts composed of a contiguous and compact territory and containing as nearly as practicable an equal number of inhabitants.” 37 Stat. 13, 14 (¿911)
There was no reapportionment after the census of 1920 and from 1910 to 1930 Georgia had twelve seats in the House. The Reapportionment Act of 1929, 46 Stat. 13, 26 (1929), provided that the House be reapportioned after each decennial census but failed to re-enact the requirements of compactness, contiguity, and equality of population in each district. 46 Stat. 13 (1929), Title 2 U.S. C.A. § 2.
Under that Act Georgia lost two seats in the House and the statute here under attack followed in 1931. Ga.Laws, 1931, p. 46; Code Section 34-2301 et seq. The General Assembly divided the state into ten congressional districts on the basis of allocating the several counties to the respective districts, and there have been no changes in the allocations to date.
The facts are not in dispute and are ample for final decision on the merits. The following table shows the population of each congressional district in 1930 as compared with 1960:
District
i Population, 1930
Population, 1960
First ' 328,214 1 379,933
Second 263,606 301,123
Third 339,870 422,198
Fourth 261,234 323,489
Fifth 396,112 823,680
Sixth 281,437 330,235
Seventh 271,680 450,470
Eighth 241,847 291,185
Ninth 218,496 272,154
Tenth 289,267 348,379
The burden of the complaint is the disproportionate population of the Fifth Congressional District as compared with the other districts. It is comprised of Fulton, DeKalb, and Rockdale Counties. The growth of Fulton and DeKalb Counties has been spectacular in recent years with the population of DeKalb increasing from 70,278 in 1930 to 256,782 in 1960, and that of Fulton from 318,587 to 556,326. It is to be noted that the population of each of the ten congressional districts has increased from a low of slightly under fifteen per cent in the Second District to just over one hundred eight per cent in the Fifth District.
It is the position of plaintiifs that the population of each district should be within a range of ten to fifteen per cent of the average district population based on a division of the number of districts into the total population of the state.3 The population of Georgia according to the 1960 census was 3,942,936. For our purposes,4 we will take 394,000 under the theory of plaintiffs as an average and examine the facts using the suggested variance of fifteen per cent. Under this theory no district should have a population of more than 453,000 nor less than 335,000. Applying the same theory to the districts as constituted in 1931 when the population of Georgia under the 1930 census was 2,908,506, an approximate average per district of 291,000, no district should have had a population of more than 335,000 nor less than 247,000.
The aforesaid table demonstrates that only the Fifth and Ninth Districts substantially varied from the fifteen per cent standard suggested by plaintiffs on the 1930 basis. The Second, Eighth, and Ninth Districts fell substantially more than fifteen per cent short of the average according to the 1960 census while the Fifth dramatically exceeded the variance.
We hasten to add that we neither expressly nor impliedly adopt any mathematical standard. We know of no basis for an exact standard. Cf. Sanders v. Gray, supra, where sufficient basis existed. We use plaintiffs’ suggested standard here in amplification of their contentions.
It is clear by any standard however that the population of the Fifth District [280]*280is grossly out of balance with that of the other nine congressional districts of Georgia and in fact, so much so that the removal of DeKalb and Rockdale Counties from the District, leaving only Fulton with a population of 556,326, would leave it exceeding the average by slightly more than forty per cent. It is apparent that giving effect to any reasonable population based standard will require the division of Fulton County into more than one district, something not heretofore done in Georgia. The population of Fulton County alone exceeds that of the nearest district in size — the seventh — by over twenty three per cent. A chain reaction affecting the make up of every congressional district in the state may be set off. We say this to demonstrate the legislative nature of the problem where a broad state-wide approach will be needed. We also point out that such a formula as suggested by plaintiffs, requiring as it would the division of Fulton County, may or may not be agreeable to the majority of the voters of Fulton County, assuming that they are entitled to a voice in the matter, and this again points up the desirability of solution if at all possible in the legislative forum. Of course, a division of Fulton County has not been suggested, only the formula.
The problem here is not peculiar to Georgia. For example, Florida has recently substantially changed its congressional districts by reason of the addition of four new congressmen making a total of twelve. The districts there now range in population from a low of 241,250 to a high of 660,345 as compared to the Florida average of 412,630 a variance greatly exceeding the suggested standard. Dade County with a population of 935,047 is divided among two districts, one consisting of a part of Dade County only, and the other consisting of an adjoining county and the balance of Dade County. Duvall, Hillsborough, and Pinellas Counties each constitutes a district under the new plan with populations respectively of 455,411, 397,788, and 374,-665, a sharp example of the variance in population per district if counties are to continue as a basis for districts except where the population of a county is so large as to require division.
There are 435 congressional districts in the United States. Twenty two congressmen will be elected state-at-large in 1962. Of the remaining 413, the Fifth District of Texas has the largest population, 951,527. The Fifth District of Georgia, here under discussion is next. There are twenty two districts with populations exceeding 600,000. Eighty districts have populations more than fifteen per cent above the state average, while ninety have populations of more than fifteen per cent below the state district average. Using ten per cent as a variance, or tolerance, one hundred eight districts are above and one hundred twenty five are below the average, a total of two hundred thirty three or more than one-half of all congressional districts. These figures in no way reflect on the problem of deprivation of rights of the type here asserted through use of the gerrymander, a problem with which we are not concerned here but one that could well be within the rationale of any decision reached.
The following table shows the considable difference in population in the named states between the districts having the highest and lowest number of inhabitants. Even a cursory examination of it indicates that in virtual^ no state do the districts contain “as nearly as practicable an equal number of inhabitants" as was formerly required by the Congress.
The table is based on only four hundred thirteen out of the total of four hundred thirty five congressional districts. Only forty two states are listed. The twenty two of the seats to be filled by elections at-large are: Alabama — 8, Alaska — 1, Connecticut — 1, Delaware — 1, Hawaii— 2, Maryland — -1, Michigan — 1, Nevada— 1, New Mexico — 2, Ohio — 1, Texas — 1, Vermont — 1, and Wyoming — 1. The districts shown are as constituted January 1, 1963 while the populations are according to the 1960 census.
[281]*281State
Average Population Per District
High
Low
Arizona 434,053 663,510 198,236
Arkansas 446,568 575,385 332,844
California 414,009 591,822 301,172
Colorado 438,486 653,954 195,551
Connecticut 507,046 653,589 318,942
Florida 412,629 660,345 237,235
Georgia 394,311 823,680’ 272,154
Idaho 333,595 409,949 257,242
Illinois 420,100 557,221 277,169
Indiana 423,863 697,567 290,596
Iowa 393,933 403,442 353,156
Kansas 435,722 539,592 373,583
Kentucky 434,022 610,947 350,839
Louisiana 407,127 536,029 263,850
Maine 484,632 505,465 484,632
Maryland 442,955 711,045 243,570
Massachusetts 429,048 478,962 376,336
Michigan 434,621 802,994 177,431
Minnesota 426,733 482,872 375,475
Mississippi 435,628 608,441 295,072
Missouri 431,881 505,854 381,602
Montana 337,383 400,573 274,194
Nebraska 470,443 530,507 404,695
New Hampshire 303,460 331,818 275,103
New Jersey 404,452 585,586 255,165
New York 409,324 469,908 348,940
North Carolina 414,195 491,461 277,861
North Dakota 316,223 333,290 299,156
Ohio 422,017 726,156 236,288
Oklahoma 388,047 552,863 227,692
Oregon 442,171 522,813 265,164
Pennsylvania 419,235 553,154 303,026
Rhode Island 429,744 459,706 399,782
South Carolina 397,099 531,555 272,220
South Dakota 340,257 497,669 182,845
Tennessee 396,343 ' 627,019 223,387
Texas 435,439 951,527 216,371
Utah 445,313 572,654 317,973
Virginia 396,694 539,618 312,890
Washington 407,602 510,512 342,540
West Virginia 372,084 422,046 303,098
Wisconsin 395,177 530,316 236,870
It is readily apparent from these Undisputed facts that plaintiffs, not unlike many millions of other citizens throughout the Republic, are being deprived of equal treatment arising from the excess in population of their congressional district as compared with that of other districts in Georgia. Such unequal or discriminatory treatment to be actionable, if judicially cognizable, a mat[282]*282ter to be hereinafter discussed, must reach the point of invidiousness. Baker v. Carr, supra; Sanders v. Gray, supra; and Toombs v. Fortson, supra.
Our jurisdiction of a matter such as this can no longer be doubted, and it is settled that plaintiffs asserting rights of the type here involved have standing to sue. Baker v. Carr; Wood v. Broom, 1932, 287 U.S. 1, 53 S.Ct. 1, 77 L.Ed. 131; Colegrove v. Green, 1946, 328 U.S. 549, 66 S.Ct. 1198, 90 L.Ed. 1432; Scholle v. Hare, 1962, 369 U.S. 429, 82 S.Ct. 910, 8 L.Ed.2d 1; and W. M. C. A., Inc. v. Simon, 1962, 30 L.W. 3383, 82 S.Ct. 1234. We hold too that the issue presented is justiciable but that question requires some elaboration.
And if the issue were one solely of state action under the Fourteenth Amendment, separate and apart from rights and duties devolving on the Congress under the Constitution and from congressional action or inaction, our problem would be greatly simplified. We would apply the test for invidious discrimination by considering all relevant factors, including a determination of rationality of state policy behind the statutory system, arbitrariness, whether the system has a historical basis in our political institutions, together with the presence or absence of political remedy. Baker v. Carr; Sanders v. Gray; and Toombs v. Fortson. The test is to be made on the sum of all of these factors ' and the asserted violation must be clear for we are dealing with the constitutionally based relationship between federal and state governments. American Federation of Labor v. Watson, 1946, 327 U.S. 582, 66 S.Ct. 761, 90 L.Ed. 873; McGowan v. Maryland, 1961, 366 U.S. 420, 81 S.Ct. 1101, 66 L.Ed.2d 393.
If the state action — here the statute setting up congressional districts — offends fundamental political concepts inherent in a republican form of government, giving due regard to each factor and the rights of the plaintiffs and all others in their class as compared to those similarly situated in other congressional districts of Georgia, the statute must be stricken because of being discriminatory to the degree of invidiousness.
In our view the statute here when enacted reflected a rational state policy to set up the congressional districts in Georgia with some reasonable relation to population. On the other hand it now reflects a system which has become arbitrary through inaction when considered in the light of the present population of the Fifth District and as measured by any conceivable reasonable standard. The statute does have a historical basis in that it is of the type used in the remaining states of the Union with but few exceptions for more than one hundred years, and of a type that was required by the Congress from 1872 through 1929. As to political remedy, we only recently required by our decision in Toombs v. Fortson that the General Assembly of Georgia be fairly apportioned. It may well be that the arbitrariness which we find to be present as the statute relates to the Fifth District and to the rights of plaintiffs will be corrected by the reapportioned Assembly.
Our view is buttressed by a due regard for the admonition in Baker v. Carr that a “judicially manageable standard” be adopted. This dictates that a reasonable time be afforded for the normal state governmental processes, where there is a substantial chance of relief as we believe there is, to run their course.
So tested, from the standpoint of Fourteenth Amendment rights or the right to choose Representatives under Art. 1, Section 2 of the Constitution, we do not now find proscribed invidiousness. We would deny relief at this time but retain jurisdiction to again consider the contentions of plaintiffs, if necessary, after the expiration of a reasonable time for relief by way of political remedy.
But we cannot rest our decision at or on this point because the problem goes deeper. We are not dealing simply with state action under the Fourteenth [283]*283Amendment or in violation of Art. 1, Section 2 of the Constitution for the state action complained of is inextricably subject to the rights allocated to Congress under the Constitution. And defendants are entitled to their due — a final decision.
As was said for the majority in Cole-grove v. Green, supra, where similar relief was sought in a suit alleging malapportioned congressional districts:
“The petitioners urge with great zeal that the conditions of which they complain are grave evils and offend public morality. The Constitution of the United States gives ample power to provide against these evils. But due regard for the Constitution as a viable system precludes judicial correction. Authority for dealing with such problems resides elsewhere. Article I, Section 4 of the Constitution provides that ‘The Time, Places and Manner of holding Elections for * * * Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at anytime by Law make or alter such Regulations, * * * ’ The short of it is that the Constitution has conferred upon Congress exclusive authority to secure fair representation by the States in the popular Blouse and left to that House determination whether States have fulfilled their responsibility. If Congress failed in exercising its powers, whereby standards of fairness are offended, the remedy ultimately lies with the people. Whether Congress faithfully discharges its duty or not, the subject has been committed to the exclusive control of Congress. An aspect of government from which the judiciary, in view of what is involved, has been excluded by the clear intention of the Constitution cannot be entered by the federal courts because Congress may have been in default in exacting from States obedience to its mandate.” 5
Only seven members of the court participated in this decision, two concurring in the opinion by Justice Frankfurter and Justice Rutledge concurring in the result to make the majority. His concurrence was based on the view that the complaint should be dismissed for want of equity and we perceive this to be the holding of the majority. He recognized that the court had jurisdiction and that a justiciable issue was presented, citing Smiley v. Holm, 1932, 285 U.S. 355, 52 S.Ct. 397, 76 L.Ed. 795. He pointed out that four of the nine justices in Wood v. Broom, supra, where the majority dismissed a similar suit on the ground that there was no congressional requirement after the 1929 Apportionment Act of compactness, contiguity or equality in the number of inhabitants for congressional districts, were of the opinion that dismissal should have been for want of equity. His basis for the want of equity holding was that the court would be pitched into delicate relation to the functions of state officials and the Congress compelling them to take action which they have declined to take voluntarily, and because the short time remaining before the election made effective relief doubtful. He thought a state-at-large election would deprive Illinois citizens of representation by districts “which the prevailing policy of Congress demands;” citing 46 Stat. 26, c. 28, as amended, Title 2 U.S.C.A. § 2a. He concluded:
“If the constitutional provisions on which appellants rely give them the substantive rights they urge, [284]*284other provisions qualify those rights in important ways by vesting large measures of control in the political subdivisions of the government and the state. There is not, and could not be except abstractly, a right of absolute equality in voting. At best there could be only a rough approximation. And there is obviously considerable latitude for the bodies vested with those powers to exercise their judgment concerning how best to attain this, in full consistency with the Constitution.
“The right here is not absolute. And the cure sought may be worse than the disease.”
Justices Douglas and Murphy joined Justice Black in a dissent. It was their view that the case involved the federally protected right to vote. Article I, Section 2, Const., Fourteenth Amendment, Section 2, and it was implicit in their dissent that they considered this right to be absolute, equating it with a denial of the franchise on account of race, creed or color. Cf. Ex parte Yarbrough, 1884, 110 U.S. 651, 4 S.Ct. 152, 28 L.Ed. 274; Nixon v. Herndon, 1927, 273 U.S. 536, 47 S.Ct. 446, 71 L.Ed. 759; Lane v. Wilson, 1939, 307 U.S. 268, 59 S.Ct. 872, 83 L.Ed. 1281; and United States v. Classic, 1941, 313 U.S. 299, 61 S.Ct. 1031, 85 L. Ed. 1368. They would have invalidated the state apportionment statute and afforded plaintiffs the right to vote in state-at-large elections. They thought the state had violated a duty to bring about approximately equal representation of citizens in the Congress.
We have dwelt at some length on the Colegrove case because it is decisive here. It is in point and a controlling precedent if still in force. It has been cited as authority in cases involving only state action where perhaps it is no longer a controlling authority in view of Baker v. Carr. Cf. South v. Peters, 1950, 339 U.S. 276, 70 S.Ct. 641, 94 L.Ed. 834; Kidd v. McCanless, 1956, 352 U.S. 920, 77 S.Ct. 223, 1 L.Ed.2d 157; Radford v. Gary, 1957, 352 U.S. 991, 77 S.Ct. 559, 1 L.Ed.2d 540. We make our determination of its efficacy by a consideration of the preservative treatment given it in Gomillion v. Lightfoot, 1960, 364 U.S. 339, 81 S.Ct. 125, 5 L.Ed. 110 and Baker v. Carr.
Gomillion involved a statute gerrymandering the City of Tuskegee, Alabama, so as to deny the vote to colored citizens. Justice Frankfurter, author of Colegrove, wrote the decision for the eight justices making the majority, Justice Douglas concurring in the result but adhering to his dissent in Colegrove, and South v. Peters, supra. In distinguishing Colegrove it was said that the dismissal of the complaint was affirmed “on the ground that it presented a subject not meet for adjudication.” The court stated that the decisive facts of Gomillion were wholly different from the considerations found controlling in Cole-grove. The complaint in Colegrove was only as to the dilution of the strength of votes as a result of legislative inaction over a course of many years as compared with affirmative legislative action to deprive complainants of their votes in Gomillion.
■ “ * * * when a legislature thus singles out a readily isolated segment of a racial minority for special discriminatory treatment, it violates the Fifteenth Amendment. In no case involving unequal weight in voting distribution that has come before the Court did the decision sanction a differentiation on racial lines whereby approval was given to unequivocal withdrawal of the vote solely from colored citizens. Apart from all else, these considerations lift this controversy out of the so-called ‘political’ arena and into the conventional sphere of constitutional litigation.” 364 U.S. pp. 346-347, 81 S.Ct. p. 130
•»**•***
“ * * * While in form this is merely an act redefining metes and bounds, if the allegations are established, the inescapable human effect of this essay in geometry and geography is to despoil colored citizens. [285]*285and only colored citizens, of their theretofore enjoyed voting rights. That was not Colegrove v. Green.” 364 U.S. p. 347, 81 S.Ct. p. 130.
Thus Gomillion taught in 1960 that Colegrove was still a living precedent and we must determine if it was overruled or sapped of its strength by Baker v. Carr. That case, in one fell swoop, lifted state political action offending the Fourteenth Amendment from the ancient doctrine whereunder it was thought improper for courts to enter the “political thicket” so often involved in reapportionment and related problems.
We have carefully considered its import and have noted that the court was at pains to distinguish Colegrove. The rationale of the decision goes no further than to open the doors of the courts for the purpose of adjudicating consistency of state action with the Federal Constitution where no question is concerned involving a coequal political branch of the government. The treatment of Cole-grove in Gomillion was reiterated. The court stated that Colegrove appeared to be based on a refusal to exercise equity’s powers.
The various concurring opinions in Baker v. Carr shed much light on the meaning of the majority opinion. Justice Douglas put aside the problem of “political” questions involving the distribution of power between the Court, Congress and the Chief Executive, and noted that the power of Congress to prescribe qualifications for voters and thus override state law was not in issue. He stated that the Federal Judiciary does not intervene where the Constitution assigns a particular function wholly and indivisibly to another department, and then in closing stated that the state legislative apportionment question before the court was removed from the impediment of Colegrove and the cases following it by the treatment given those cases in the majority opinion, i. e., that they were based on a refusal to exercise equity’s power. Justice Clark also distinguished Colegrove. Justice Frankfurter in dissenting stated that the appellants sought to distinguish Colegrove on the ground that congressional, not state legislative, apportionment was involved, and we believe that this is the course that the majority of the court took. Justice Harlan described the holding in Colegrove as a declination by the court to adjudicate a challenge to the apportionment of seats by a state in the federal House of Representatives in absence of a controlling act of Congress, citing Wood v. Broom, supra.
It would be extraordinary indeed for the court to have departed any more than was absolutely necessary from the previous standard of withholding judicial relief in matters of the kind involved in Baker v. Carr, and a good reason to preserve the Colegrove doctrine while at the same time reversing the body of law as it concerned state action alone was that fairly apportioned state legislatures might well alleviate congressional district disparity. But whatever the reason we think Colegrove stands and so long as it does it will be our guide.
We do not deem it to be a precedent for dismissal based on the nonjusticiability of a political question involving the Congress as here, but we do deem it to be strong authority for dismissal for want of equity when the following factors here involved are considered on balance: a political question involving a coordinate branch of the federal government; a political question posing a delicate problem difficult of solution without depriving others of the right to vote by district, unless we are to redistrict for the state; relief may be forthcoming from a properly apportioned state legislature; and relief may be afforded by the Congress.6
[286]*286Being persuaded of a want of equity in the position of plaintiffs to the extent that no cognizable constitutional claim is presented under the facts and subsisting authorities, their cause must be and is DISMISSED.