concurring:

I agree the suit must be dismissed, but on a ground different from a lack of standing. The suit should be dismissed because it fails to state a claim upon which the relief sought can be granted.

I respectfully suggest the opinion for the court subverts the usual standing analysis and in effect reaches the merits, though it disclaims doing so. The zone of interest requirement is intended to bar suits by persons who, although affected by the defendant’s transgression of a certain statutory or constitutional norm, are not its intended beneficiaries. The requirement is not meant to bar suits, for lack of standing, by one who simply cannot prove that the statutory or constitutional norm invoked has been transgressed.

Judge Wallace in effect says that the equal protection clause is not violated because there is no right to cast an undiluted vote if the dilution does not affect the election outcome. This is not a valid standing argument. If it were, almost any dispute becomes a standing case when the plaintiff loses. In addition, it improperly suggests that vote dilution causes no harm unless an election outcome is necessarily affected. That premise is doubtful, for voting dilution may, in some cases, cause such severe disenfranchisement that equitable relief will be justified regardless of outcome. We should not, in this case, flatly reject that possibility.

I would adopt a different rationale. The plaintiff in an election such as Napa’s might complain of two kinds of injuries. First, he could say the improper election procedure altered the outcome. McMichael fails on this ground, for reasons fully explained in Judge Wallace’s opinion. Second, he could say that the improper election procedure, whatever its effect on the outcome, forces participation in a constitutionally defective election process. The appellant does have standing to make this argument. The reason we must dismiss nevertheless is that the alleged defect will not support the relief he seeks in the circumstances of this case.

Federal courts will enter orders to invalidate state election results where voters have suffered an unconstitutional deprivation of the opportunity to vote even when it is not clear that the outcome would have been affected, but such relief has been reserved for instances of willful or severe violations of established constitutional norms. See Griffin v. Burns, 570 F.2d 1065, 1080 (1st Cir.1978). The present case is not *1274 in that category. Election standards similar to those challenged here have not been held invalid in other cases, and, in fact, may be required. See Kramer v. Union Free School District No. 15, 395 U.S. 621 , 89 S.Ct. 1886 , 23 L.Ed.2d 583 (1969). Without deciding Kramer's applicability, I would hold that the election result cannot be invalidated on the showing made here.

Dismissal of the suit to invalidate the ordinance is further indicated when it is noted that the appellant failed to challenge the election before it was held, and that he has not shown it was impracticable to do so. As Judge Wallace’s opinion correctly points out, moreover, appellant has not challenged the election system'generally but seeks solely the invalidation of the ordinance, which would have been passed in any event.

I would dismiss the action for failure to state a claim on which relief can be granted, without bending the standing doctrine. To do so may prejudice future, justiciable claims involving the right to vote.