*1 499 good judicial Upon comity examining opinion ad dicial well as universality. great Judge ministration, Kra of Crocker in Alma A. In re Alacar, g., toska, supra, See e. In Naturalization of Far re and the case of re 1961); ris, (D.Hawaii F.Supp. Ro F.Supp. (N.D.Cal.1963) 196 564 217 I 598 jas-Gutierrez Hoy, F.Supp. say patently cannot v. that errone affirmed, ous, (S.D.Cal.1958), delving deeper F.2d and without into Cago (9th 1959); matter, Cir. Brusselback v. this Court follow them. should (S.D.N.Y.1938); Corp., F.Supp. emphasized It should this should that state the multitude federal and not be taken as an indication these decided, correctly § court in 21 cases C.J.S. Courts cases cited were were not only comity stated note 94. This rule is well but as a statement that Judge Rojas- explained by good judicial requirements Mathes ad Gutierrez, supra. case require In an earlier ministration to follow this Court Judge re-examining extensively district Westover of same them without questions was division that marihuana had decided involved. drug” mean not a “narcotic within the affirmed, decision the Referee is ing same certain statute. When the of a counsel is directed to the Trustee Judge question presented Math- itself lodge prepare, pursu- order serve and case, said, 161 F. es in this unrelated he ant to Rule of the this Rules of Court. Supp. pages 450-451: jurisdic- judges “For of co-ordinate presume an-
tion to to overrule one unseemly usually only other adds cer- confusion
conflict and tainty where predictability are most ‘overruling’
be desired. The
deci-
nothing,
sion
often
settles
and more
only
compound
George
than
uncertainty
serves
not
al.,
W.H.
BUSH et
Plaintiffs,
to the correct rule
* * *
be followed.
MARTIN,
Crawford
Secretary of State of
say
judge
he
Texas,
can
the State
ernor
“Unless
Connally,
John
Gov
colleague
Texas,
Waggoner
of a
thinks a decision
Carr, Attorney General of
erroneous,
patently
State of
on
face
Texas,
al.,
* * *
et
Defendants.
should
it.
he
follow
Civ. A. No. 63-H-266.
say
I cannot
that on the face
“Since
Judge Westover’s
of it
conclusion
United States District Court
pre-
question
now
law
Texas,
S. D.
patently
appears to me to
Houston
sented
Division.
erroneous,
follow it without fur-
Oct.
Anyone
study.
wishes to
ther
who
Judgment
Affirmed March
ruling
challenge
so
should do
See
trict decided all
presented manner in a to the adverse Bankrupt, but
contentions independ- result been reached
same ently the District Court the North- this state. District of
ern
Noel, Judge, District dissented. *4 Grundy Cassin, B.
William Thad and Mankin, Tex., plain- Houston, Hart for tiffs. Jones, Atty. Gen.,
Albert P. First Asst. Texas, Austin, Martin, Tex., Con- nally Carr, and defendants. Resweber, Tex., Houston, Joe Charles Mitchell, Tex., Houston, F. for William County Elliott, Judge, E. Tur M. and R. rentine, Jr., County of Harris Clerk County, Texas. Tex., III, Dallas, Patrick B. Gibbons for O’Donnell. Davis, Davis, Austin,
Heath & Will D. Tex., for Locke. Lewis, Tex., Angelo, R.
Glenn San amicus curiae. BROWN, Judge,
Before Circuit and Judges. NOEL, and INGRAHAM District Judge. BROWN, R. JOHN Circuit upon This is frontal assault the con- stitutionality appor- of Texas Statutes tioning Congressional Districts among the counties and citizens of the quali- Texas. Plaintiffs State are taxpayers fied electors from the 8th. Congressional Districts, respec- 22nd and tively. comprise The Defendants three categories. major first, princi- high group pal, are officers of executive Secretary State, State, the- Attorney Governor, and the General.1 Complaint charges (Vernon Supp. and the re- art. 1. The law Election Code 13.34 charged major 1962); each with cf. flects Tex.Civ.Stat.Ann. art. 194a pri- 1959). See, responsibilities (Vernon g., the conduct of e. as to the Gov 4.01; 4.09, and elections in Texas and Election Code arts. maries ernor § comprise 9.26; 8.39; 7; (Vernon 1952); in effect the Election 8.45 three See, g., Secretary (Vernon Supp. e. Code art. Board. as Election 1962). 6-07 Tex.Civ.Stat.Ann., Election Code As the Chief Executive of State Officer 1.04; State, 1.03; 7.14, 19; 8.37; arts. of the ity Governor has author §§ 8.38; (Vernon 1952) special Legis 8.44 to call sessions of the [hereinafter (Vernon )]; duty Election has the- cited Code lature and to- “eause the duly comprises group The second I. acting qualified -elected Chairman objective The immediate of the consti n the Demo Executive Committees 197a, tutional attack is Art. Tex.Civ.Stat. Parties, respectivel Republican «eratic and Ann., Congression apportions y.2 group up of the is made The third among al Districts the counties citi County 'County Judge and the Clerk zens of the Texas.5 Jurisdiction Congression County (comprising .Harris of the case rests on U.S.C.A. § 22), each of whom al Districts 8 1983, 1988, U.S.C.A. a suit §§ ¡sued claimed, and, individually it is deprivation to redress Federal con Judges County representative of all other rights. special statutory stitutional A County in the State .and Three-Judge Clerks was constituted under 23.4 .similarly F.R.Civ.P. Injunctive under situated as well U.S.C.A. § 4. 3. These officers These officials 2. e States Senator fices are Code, A Governor non less than 1982). e. Ann. art. art. 3026a Judges see, g., Election Code arts. 4.01, 4.05, 12, 13.15, fices under the non Code Election Code laws 13.28, 28 U.S.C.A. § functions to Const. art. tion Code non Ann. art. 3158a Ann.St. As to 8.44, didates 1.03, ty, deny election received candidates for state elections. duct of ty General is responsibilities e. (and (Vernon Supp.1962); Tex.Civ.Stat.Ann. (Vernon The named g., g., Clerks political party Supp.1962). Judge, respectively, of 1952). 13.04 Supp.1962). Election 7.07, relating 13.31, candidates Election Such 1952); run-off primaries and elections. 2524— nominated 13.27, see, Election Code 200,000 *5 reguired arts. (Vernon e. (Vernon state, 8.15, 7.07, 8.30, 13.32 faithfully Defendants, County Additionally perform. As to Code party likewise under F.R.Civ.P. 2284(2) art. 13.45 provisions of the Election e. §§ in the have crucial and 1, 11 Code 13.34, 13.35, primaries at Election 5.05, the conduct (Vernon Supp.1962). as 8.25, district, g., last for § 1, 8, 9, (Vernon Attorney votes Under arts. offices 1952); whose nominee a State Convention. 1952). many as Election arts. 7.14, be served preceding have a number of holding 8.29, and Tex.Civ.Stat. executed.” 8.36, (Vernon direct art. 8.38, Code arts. (Vernon Supp. may nominate and for when respective Harris Coun the Election 1952); Tex.Civ.Stat. As to Coun 13.23, 13.24, General 8.32, 13.23, 13.36 13.45 10,000 8.37, 8.43, Code arts. 9.02 county primaries and nominat Attorney Vernon’s 1951). needed). primary general County United major (Ver (Ver (Ver Elec Clerk 13.34 13.25 1.03, Tex. both con can See, 13.- see, and for of of 5. tit. Acts 1874, 1st Called Sess. ch. 1909, 119, Texas, but this Act shall take effect for stantially need not any wise 1901, 1909, 1917, tive Governor, the General Election gressional vides the they so far as we have been advised in the class Judges sued be entitled to elect one after until changed by Statutes effective gressional Districts, each of which shall either # elections (Tex.Acts Neither “Sec. Apportionment “Section Second” Districts ties “First,” “Second,” through “Twenty- [here follows the [*] apportioned # Attorney 4, nature of their duties is at : Congress 1882, as art. ch. comprising [*] are, art. throughout 2. 311; representative declaratory prescribe any to be held determine whether 86, proper parties relief is the Texas Constitution nor 5811a, affect 1957, 1. The State ch. 16 # or can Nothing apportionment. this law shall have General. delegation in County at Tex.Acts form) Legislature of 13, (Sayles) ; Secretary into the 156; ch. the tenure in office Acts were enacted 5811b each at be, representative in Harris the State. available [*] the United States: 286, specifying in this orders Clerks 5, description of 9; Tex.Acts District.] standard for Con- Defendants 1933, 1873, 1882, 1892, 1958, (Paschal) 1923. at with at (1) following Tex.Acts Tex.Acts # 7; Congress p. 681) pro- they may Act shall in against Texas shall this Member of County, Art. 197a by injunc ch. State, respect such that the coun- Although 1917, Tex.Acts Tex.Acts County 135, State.” ; there- 1901, 1892, since [*] Con- been Tex. (and sub and we ch. sought. declaratory substantially a record that is relief is 28 U.S. without (declaratory judgment), contradiction. C.A. The case was first §§ (injunction). subject pretrial of informal and formal hearings in all deline issues were many following This case is one of parties ated so that all all evi could offer wake the celebrated decision thought dence Thereafter relevant. Carr, Baker v. 369 U.S. pri case was heard on evidence which 663; Gray S.Ct. Sanders, 1963, 7 L.Ed.2d cf. marily documentary in na and statistical 372 U.S. 821, 83 S.Ct. ture, accuracy for all modifying of which was re 9 L.Ed.2d manding N.D.Ga., 1962, F.Supp. practical purposes stipulated. Except for specific Because it bears on a urged contention authenticating only map, oral one great vigor by Defendants, with testimony was that offered the Defend appropriate here to note that Baker v. respec These ants. witnesses were Carr is not the last word. It of the Texas House and tive Chairman word, latest to fol- more bound Legislative Committees Senate *0W-6 Congressional Apportionment. This tes timony discussed later at some legal As we will be consider the serious problems presented, length judicial we do so on the basis it bears on the need Congressional Reapportionment Lower Supreme Court Citation to Citation *6 F.Supp. Docket U.S.L.Week Page Page No. Vol. Name Yol. Action Wesberry 22 31 3147 v. Sanders 206 PJN* 276 Wright 96 31 3355 v. Rockefeller 211 460 PJN Honeywood
267 32 3062 v. Rockefeller 214 897 Meyers Thigpen 381 31 2305 v. 211 826 ** 476 32 3103 Williams v. Moss Apportionment
State
W.M.C.A.,
20
31
2121
v.
Inc.
Simon
208
368
PJN
Reynolds
23
31
3147
v. Sims
208
431
PJN
***
24
31
2059
v.
Beadle
Scholle
27
31
3157
Vann v. Frink
208
431
PJN
Maryland
29
31
3173
Commit
Rep
tee for Fair
resentation
v.
****
Tawes
PJN
41
31
3197 McConnell v. Frink
208
431
PJN
69
31
2263
Davis v. Mann
213
577
PJN
297
32
3086
Swann v. Adams
214
811
307
32
3086
Roman v. Sincock
215
169
Meyers
Thigpen
454
31
2305
v.
211
826
*
jurisdiction
PJN —Probable
noted.
** Summarized 32 U.S.L.Weck 2077.
*** Reported
367 Mich.
507 only significant change adjourned in the then sine on die May 24, give County (Houston) with no Act was to Harris Conference Committee n two meeting having Congressmen, splitting been former The testi- Dis- held. mony 22) legislative (8 trict 8 into .14 the two in- two Districts witnesses County dicates (Dallas) This left that the most reason Dallas the tar- immediate get greatest for inaction discrimination, was the time in the effect lateness of gotten only time, impossibility of which has Session and the worse as virtual tide, population go securing any legislation explosion enactment of and shifts figures although widespread on such on.15 a matter of interest show also problem in such most, Part (Dallas) District 5 it short a time. suffers the was, they testified, also any no means the absence alone. There are substan- “guidelines” disparities tial from the and 22 United States to Districts 8 concerning (Houston), prospec- (Fort Worth), District 12 legal obligations (San Antonio), tive and constitutional District 20 and the El teaching Legislatures 10, of (see under Paso-anchored note District stumbling Baker supra.)16 blocks Carr. Other briefly con- elucidated these witnesses only Thus it is seen that once adjustment in cerned size and any reappor has since made supra), (see 11, es- note District tionment. And this was done in when reshuffling pecially con- in relation to significant change 1957, one was tiguous adjacent other counties from (See 14, supra) made. note And so rearrangement any split or Districts this record far as and our own reflects regional jealousy plus the unnatural not indicated, research the unsuccessful the east northeast some of between n effortsto problem deal with are con covering much and this one so Districts proposed reapportionment fined to find the western end of the State. We regular This session. the 1963 effort unnecessary under- to examine into or form of House Bill took the 58th assaying task of what take the difficult Regular Legislature, Session legislative were for this inaction reasons passed and sent House significant. Accepting as we or were readily April May on 1963. On Senate these witnesses tes- do all that passed 1963, the its Committee Senate to, ef- this unsuccessful we think tified for H.B. sent it to 'Substitute consequence final since fort is of little May 24, the House House. On begin provide not even it did face amend to concur the Senate refused reapportionment. reasonably equal Al- appointment requested of a ments though changes were in all made but to consider Committee Conference long existing disparities Districts, Houses. The between the two differences exactly changes Districts, and the remained same of 22 14. Out approximately 60,000 plus or down to a maximum of minus varied from others 20,000 plus minus. *9 Antonio, Worth, metropolitan Dallas, Houston, to the San Fort and El areas of substantially Worth, Paso Districts left Fort were un- and San still Antonio suffer- along pro- underrepresentation disturbed.17 House ed marked Of course the posal represented improvement. some with El Paso-based District 1618 The smallest under District the House version satis- Senate was even less 295,395 (District 3) opposed Bill was factory. Thirteen were Districts 216,371 (District 197a). 4 under Arts. changed (from composition at all un- However were still there 8 Districts hav- 197a), and, der art. Tex.Civ.Stat.Ann. ing 350,000 (sub- less than version, Antonio, the House San stantially average under Worth, Fort El Paso Area were 416,508), previously noticed, given and as (other 9,109 per- no relief than the reapportioned H.B. Under 871 the State was into 23 for the Districts care Congressman (except added 5, 8, 12, 16, after the 1960 census for Dists. extensively renumbered): the Districts were reshuffled and Although split (5 23), (District Dallas into Districts San Antonio 687, 151) (District 538,495) changed all; and Fort Worth were not 20 — 12— oñly (District 16) 9,109 and the 573,438 El afforded Paso was a reduction of 564,329. *10 tirely prob- equally with the troublesome Paso El in the size son reduction legislative reapportionment of state above) lems noticed District is the House and It as to both Senate. historical-statistical out the It rounds interesting to note in contrast here that although picture point Baker out that con- absence Texas £he entire of either 26,1962, on March announced was v. Carr gtitutional legislative for standards elsewhere, a well and, Texas as was apportionment, Texas contemporary fact in constitution- known emphatic Hous- as to both Constitution congres- development, no toward al action Legislature. only dif- of its es With apportionment con- being was taken sional of little contem- ference one Legislature vening special significance days present session of the porary in these legislative suffrage by in 1962.20 The thereafter universal distinc- of virtual population qualified testified elec- witnesses 1961 Ses- tion between Legislature preoccupied tors, en- sion the House Senate Except splitting County 23), (Dists. Dallas into Districts 871, working Senate Committee substitute for H.B. Art. 107a structure renumbered, (rather 871), than the reshuffled Districts H.B. shifted persons: 112,640 surprising populations Districts the Senate Revision left 8 with It is 292,000. than of less (Tex.Acts 1961, 256, 1, 2, p. (and last) ch. §§ Session at Third Called 20. The adjourned 544). Feb. of the 57th 21, 1962. 25, provides: art. § 22. Tex.Const. 26, provides: “The State shall be divided into Sena- § art. 21. Tex.Const. territory contiguous Repre- torial Districts according House of members “The qualified apportioned among to the number elec- shall sentatives nearly tors, may be, counties, according as as each dis- num- to the several nearly each, population entitled shall be to elect one Sena- as as trict tor; ber of single county by dividing may be, and no shall be enti- ratio on a obtained State, one as- to more than tied Senator.” The Senate further limited. Art. the most recent United certained 2, provides: census, by members § the number of States composed; the House thirty-one shall “The Senate consist of ** *(cid:127)” members, and shall never be increased ”* * * representation number. above 26a maximum § Under any county population ex- is seven unless apportionment of members 700,000. ceeds Texas Senate is Tex.Civ.Stat.Ann. (Vernon Supp.1962) (Tex.Acts Repre- present apportionment art. 193 1961, p. 544). It is inter- § eh. is Tex.Civ. to the Texas House sentatives that, esting (Vernon Supp.1962) in the ease of to note art. 195 Stat.Ann. *11 510 apportioned substantially sequently, to be in rela- we must take some of these population.23 problems
tion to one at a time. III.
II.
present
onOne which there is
analysis
quantitative
This
then
ly
disagreement
little
is the standard of
brings
legal questions
us to the
which the
equality.
accept
approach
We
articu
seriously presents.
case so
now
Some
24
lated in a number of eases
that the Su
greatly
altogether
simplified
if not
preme
gener
adopt
Court means to
problem
eliminated.
first is
The
guide
prohibiting
al
dis
“invidious
subject
jurisdiction.
matter
this
Akin to
good
wrapped up
crimination.” A
deal is
question
justiciabilit y
put
is the
toor
analysis
in this formula. An
of it involv
opposite
it in its
is
the reflex
—it
subsidiary inquiries along
es
lines
“political” ques
much mooted label of a
disparity
whether the
is irrational. Shad
put
tion. Both of these matters
were
ing off,
into,
or
prob
this standard is the
finally
completely
Test
Baker v.
lem
disparity
arbitrary,
of whether the
is
least,
extent,
Carr. To this
we concur
capricious, wholly without
reasonable
Wesberry
majority
with the
Van
v.
foundation, and the
the end
like.
diver, N.D.Ga., 1962,
F.Supp.
206
perhaps
question
comes back to the
By an
that
intricate reconstruction of
factors,
whether there have
actual
been
decision rendered
3-1-3
what Justice
perhaps
or
whether such
now
factors can
court,”
CLARK called a
tailed
“bobbed
though
previously
discerned
ar
Carr, 1962,
186, 252,
Baker
v.
369 U.S.
ticulated in
fashion,
formal Governmental
691,
663, (concurring
7 L.Ed.2d
S.Ct.
explain
sustain
or at least
or in
majority
opinion),
concluded
justify
particular
some measure
Colegrove Green, 1946,
549,
v.
328 U.S.
inequality.
wide
arithmetical
1198,
1432,
66 S.Ct.
was hold
90 L.Ed.
for,
assaying
formally
of,
search
ing
congressional
question
important
undisclosed factors
es
justiciable.
apportionment
But this
pecially where,
record,
is true
hardly
problem
our
for as
solves
Wesber
ap
neither the Texas Constitution nor its
ry
reveals,
v. Vandiver
what is
itself
rec
portionment
any
prescribe
statutes
stand
ognized
“justiciable”
beyond
held
ef
congressional apportionment.
ards
among
judicial
because,
fective
think, however,
doWe
that it is a corol
things,
says
question
(cid:127)other
that Court
lary to this that “invidious discrimina
coequal
committed
is one
branch
something
tion” is
more than numerical
Government, namely Congress,
un
disparity.
problem,
short,
more
4 of
der Art. I
the Constitution.
§
Con- profound than that of arithmetic.
197a,
apportioning
Art.
the acts
the Tex-
(No. 508,
Term;
Ed.2d 1029
re
as House
Senate members do not in-
23,
Term); Wesberry
numbered No.
any
dicate in
manner
the standard
Vandiver, N.D.Ga., 1962,
F.Supp.
v.
underlying
process
resulting appor-
jurisdiction
276, 282, probable
noted, 374
tionment;
the Districts
and the counties
802,
1691,
U.S.
83 S.Ct.
34. This is one of those rare cases in doubt to what had declaratory ities to be done be which alone would failing and, legislative action, affirmative even more harsh unfair injunctive and than an declaration, validity A order. mere would leave the of the 1964 elec- tions under a considerable cloud. jurisdic- The Court retains DECREE Fifth: tion of the cause for such other and having trial at come for This cause required. further orders as be parties coun- which all were having the evi- heard sel and the Court INGRAHAM, Judge (concur- District having plead- and dence considered ring specially). argument ings, of counsel evidence and join opinion the court’s being of the should view that a decree emphasis. result but add this for granting specified entered relief to expostulate We can about economicand reasons forth Plaintiffs set lang interests, cultural groups, ethnic opinion date, Court’s filed uage,* acreage, scenery and the like Judge Noel, dissents which L. James Jr. until the world looks level. Such con dissenting in his for the reasons set forth siderations county, district, extend across therewith, opinion or- filed it is therefore state and They national boundaries. of adjudged dered, the court: decreed guidelines. fer no They delay confuse, hereby The Court declares First: denial, avoid. Have we come to a present apportionment have we come to a breach of the Great Congressional under Art. Districts Compromise, long which has served us so 197a Texas Civil Annotated Statutes well, representation and so (Vernon 1959) (Tex.Acts 55th Representatives the House of was to Leg., 681) unconstitu- ch. representation based on tional and therefore said Art. 197a among equally Senate be divided application; invalid is void the States. conducting primaries for Second: In NOEL, Judge District (dissenting). candidates, nomination of and elec- I. Preface of, election tions Members of being court, This a trial it is well to Congress Texas, the named De- chronology significant state the events fendants, individually and in their precise posture and the of the case from representative capacity (but official standpoint parties pleadings. alleged representatives of a not as April 23, plaintiffs On filed their public officers), respec- their class original complaint. Judge up- Ingraham, agents, employees, officers and tive fell, requested on whose docket it hereby enjoined and restrained *18 are Judge Chief the of Fifth Circuit Court of enforcing, applying or from ing follow- designate Appeals judges the sit 197a; said Art. him requisite three-judge with on this Pending enactment Third: the court, promptly which was done. legisla- Texas of of substitute State issued, After summons ex- defendant 197a, place the said Art. tion of the ecutives State of Texas answered Congress Members of for the all May 13, County Judge County on the and of Texas shall be nominated State County May Harris Clerk of 15, on the large; elected from the State at and Republican of the Chairman State Ex- May 16, on ecutive Committee and the This order shall Fourth: not become of the Chairman State Democratic Execu- day until A.M. the 1st 11:00 effective on tive Committee June 26. 1963, November, en- order to 28, 1963, Defendants, any preliminary more June pre- or one or On able them, apply for and trial conference was obtain a held which the writ- July stay the er attended. On of this decree from Circuit 1963 the Chief Judge duly designated Justice, Supreme Court, any or the writer a mem- thereof; Court.1 ber Justice consensus of * language Original designation by in Tex- but one official There is order Chief April Nation, although Judge some of our and Tuttle dated as scholarly speak more. friends political question involving sents a and trial pre-trial that present was
those authority aft- practicable aof coordinate of the branch soon as had should government. ac- federal and Day. set Democratic The case er Labor aligns 9, tried Chairman September thus himself with the cordingly pre-tried on parties defendant and State executives. September All prompt given at- the case have the Court State, The executives of the in their tention. original answer, first amended assert four defenses. The first two are substan- plaintiffs complaint, assert their In tially identical with the first defens- two laws right equal protection their es asserted the Chairman of State Amendment, Sec- Fourteenth under Their Democratic Executive Committee. the United the Constitution tion I second defense in the is alternative rights un- asserted are Related States. plaintiffs allege they do not have made Constitution, Article Texas der any through effort to secure relief 4, and Article Section 2 and Sections legislation Congress enactment of Code, Texas Election 2; under the These of the United States of America. Code, et Election Article 1.01 V.A.T.S. defendants’ third the suit defense plaintiffs forth seq. detail set some should be abated because establish- voting power repre- disparity in congressional of the ment of districts between various sentation prerogative of a lawful Texas is allege State, this to in the districts the ly, of the And fourth- State. under invidious discrimination constitute deny these defendants substance Four- Equal Protection Clause fairly plaintiffs representa- that the to them Amendment teenth of Texas of all voters the State tive ra- represent, all without class rights plaintiffs or that constitutional justification. or historical basis tional or been violated. have following pray for the Plaintiffs relief: declaring judgment 197a, (a) a Article pray that the Defendants cause be dis- unconstitutional, void in- V.A.T.S. missed; alternative, in the it be valid; injunction against (b) an all de- plaintiffs sought until the abated unsuccessfully fendants, individually repre- and in their Congress redress from the capacities, conducting pri- sentative Legisla- of the United States until the Congress mary for members of elections ture the State of Texas shall have had valid, 197a; (c) if a under Article give opportunity to consideration to reapportion- and constitutional lawful congressional redistricting matter of adopted by ment act light of the rules established July 1, 1963, Legislature before that the States; Court United reapportioning own order enter alternative, further the event congressional districts. abated, neither dismissed the cause nor *19 denying judgment plaintiffs for the relief answer, the Chairman of In the State sought, appropriate for other and relief. agrees Republican Executive Committee County Judge complaint County and and admits the and Defendants with each allegation County, Texas, every complaint, in the of Harris Clerk con- answer senting prayed by and plain- the relief not for to for for themselves They class. deny Republican representative capacity the The Chairman in tiffs. thus suggest aligns plaintiffs. pos- with are sued and himself here which the In answer, of interest the Chairman of conflict between them- the State sible his opposes the interests of Executive Committee and others of their selves alleged Democratic They First, says request complaint. he class. the Court to the com- upon accept jurisdiction of to state a claim the case plaint fails and de- which rights parties granted; secondly, and can that accord- relief clare applicable law and should be dismissed with the action for want ance facts complaint pre- equity proven. inasmuch as the alleged concerned, pursue distinguished Plaintiffs did not perhaps as rights (b) governing of their under the violations the standard Ma- time and permitting or laws at trial. Constitution circumstance or re- allega- quiring judicial jority to such intervention, made no reference Members allegations clearly Congress tions. deem such I are to be elected on the ba- having nothing sis been abandoned. and else.”3 (Emphasis added.) Thus, the Court attorney Lewis, R. and citi- Glenn Texas, tells Governor, the State its Angelo, Texas, situat- zen of which is San Attorney General, Secretary State, Congressional District, ed the 21st Legislature apportioning argu- appeared as His Amicus Curiae. congressmen allotted the State under opposition position is in ment to Law, guideline Federal the sole for the Although plaintiffs. opposed Motion “population nothing State is else.” by plaintiffs, to Strike filed leave prior judicial authority No to cited duly granted his Curiae to file the Amicus support fact, this test. exists.4 none argument. congressional districts heretofore findings contrasted with As created the Texas are fact,1-a evidentiary contained facts population-only found not to meet this Opinion with substantial stated test and Equal therefore to violate the accuracy but will I add some. Protection Clause of the Federal Consti- being equity, cause This the conse- tution, justifies, which in turn neces- even granting denying quences of relief are or sitates, present judicial intervention and Opinion forth vital decision. The sets judicial remedy. coercive fully plaintiffs, consequences Paragraph grants FIRST of the Decree repeat. But, will undertake will I declaratory relief, traditionally re- consequences to de- state the named judiciary extraordinary served occasions, for Texas, and the and turn fendants State of present appor- declares first to task. tionment of districts Consequences Majority Texas “unconstitutional and ** therefore II. * Opinion void and invalid.”5 Had the Decree Command granting been limited Decree declara- my deep concern Because over the tory relief, adoption popu- of the new consequences of taken the action and in lation-only test would not be of such seri- grave sincere belief errors of law and consequence. ous But when failure to policy committed, judicial have been but primary meet this test is the reason great respect with deference to finding jus- invidious discrimination and distinguished my colleagues, the views tifying together judicial intervention I have dissented the Decree entered with the coercive relief ordered in Para- Opinion Majority filed of this graphs THIRD, SECOND conse- today.2 quences of error become calamitous. judicial the first time in the For his- Paragraph SECOND of the Decree States, tory of the a federal United court grants extraordinary remedy by another involving in a case an attack on holds enjoining the defendant State executives apportionment congression- state’s enforcing, applying following “from representatives simple “the al consti- again which, 197(a),” Art. re- said with far (a) that so tutional fact *20 spect, believe to I be error.6 composition Congress of of the standard as 2. Hereinafter referred to “the Decree” example, page Opin For at 17 of the 1 - a. Opinion,” respectively. and “the appor is said that all it the 1957 ion provide Opinion, p. act did was tionment Harris 524. 3. County congressman. an additional This IV, this 4. See Section Dissent. page of fact in is error. conclusion See V, C, 5. See Section Sub-section this Dis- Dissent this for correct statement of sent. of effect the the 1957 act. 6. Ibid. power grants which, Paragraph judicial relief of the Court and violative THIRD deference, an- unique of the Eleventh to the Con- with find in the Amendment I more of jurisprudence, of stitution the United States. nals federal the delicate so because it is mounted in this underlying purpose Undoubtedly, the relationships. It frame of state-federal nature, Decree, is to of the give “powerful so in coercive declaratory of- is not orders nature. It a immediate cathartic” to my opinion, consti- it ficial action. In congressional by reapportionment the mandatory type ex- relief, most tutes traordinary the suggested pre- Texas, of and first State saged by guarded jealously reme- and col- of the Court in a member dy power any itAnd within the of court. Attorney loquy Tex- with of General any file pleadings on is done without during argument.8 as oral sug- justify, request, which would or even grave misgivings But I relief; gest, without this character of sought by accomplished this result will be proper contemplated action notice of such equal- explained later, As threat. ly there having given been of Texas the State good consequence of reason to believe executives; any or its said indi- without indefinitely this command to defer be cation that a whatsoever the record reapportionment by Legislature, a apportionment valid act ef- will consequence contrary to announced appropriate at fect Paragraphs virtue time purposes Opinion and and desires of the and of its FIRST SECOND and execu- Decree of the defendant State Decree; ques- any pending and without plaintiffs. tives, as as of the well controversy or tion before the Court which would make even considera- orally pleadings their and trial at appro- mandatory tion such a order Attorney Texas, Governor Gen timely. priate or all within It commands eral, Secretary and an ur State made earshot as follows: gent plea to for the Court9 a reasonable Pending within defini time which to obtain more “THIRD: enactment legisla- guidelines from Texas of substitute tive United States State place 197a, Court as to the basis for con
tion said Art. stitutionally reapportioning Congress in all State Members of for the of Texas shall nominated State districts. The Senator10 large elected State Legislator11 testified, who Chairmen *# *» cognizant Committees of the command, consider this House, respectively, I precedent made without ratified Senate authority, beyond guidelines or Admittedly, to be plea. these * * * during argu- Court,” suggested 7. Statements of counsel oral (Transcript, p. 149, 8-11; Tr., at-large “prospects ment lines for elections 19-23) sug- concerning p. lines remote.” The latter indeed at-large gestion and, euphoric fear, a member elections mis- statement plaintiffs’ prayer for of the Court informed. regarded plead- general are not Tr., p. 137, lines 20-23. suggestion ings, requests, How- or notice. noteworthy ever, in the Mo- p. 131, Tr., p. 130, 25 and line lines 1-9. the Amicus Ar- tion to Curiae Strike Senator Abraham Kazen of the Lewis, plain- gument of Mr. counsel for (Rio District 21st Senatorial Grande meticulously avoided inference tiffs Valley); Com- any request by Chairman Senate them for the order Legislative Congressional mittee at-large elections. I would infer years prior Redistricting; six service credit, plaintiffs not want do Representative eleven in the liability case, such should be the Senate. at-large asking elections even of in the alternative. Their Motion Representative Murray, 11. State Menton J. says merely (Cameron County Strike declaration District Place unconstitutionality Valley); would act Rio 197a Grande Chairman *21 * * * “powerful Legislative Congressional a cathartic as House the
521 very pending jus- should cases, in be received soon recommended the wisdom Georgia particularly giving, case of possible, the tice of as far as to Wesberry Vandiver, F.Supp. people the v. local subdivisions of the (N.D.Ga.1962) state, which is set down for of each a in the due influence argument oral in 1963 and representatives, November choice of so as not which, Opinion says, aggregate minority be dis- as the could to leave the of expressed positive though people ap- The state, here. Chairmen in a cooperative proaching of them perhaps majority, attitude behalf to a Legis selves, Committees, wholly their overpowered by be the com- congressional reapportion lature toward bined action of the ma- numerical ment, that, expressed opinion jority, in without whatever voice given guidelines, reapportionment Kent, would the national councils.’ 1 Com- accomplished delay without at the next *230-31, (12th ed., 1873) mentaries Legislature. Regular of Fur Session (c).” n. commonly thermore, that the it is known policy avoided, This upheld, should be reap publicly such Governor stated by this federal district court. portionment place take not later would possible congressional underrep- regular Legislative Sess than the next 3,420,331 people resentation dispute no between ion.12 There is Dallas, Antonio, San Fort Worth parties or not the here as to whether possible Houston13 and the dilution reapportioned. should congressional their votes in elections urgent plea peremptorily This official explained length Opinion. rejected means and the most coercive posed do not or under- believe the dilution power used within the of the Court representation be, fact, as serious compel reapportionment, immediate or as present- certain as the numbers are respect- upon untested, and I based fully say conceded, ed illustrate. As is it is guideline “popula- erroneous, impossible difficult if not to demonstrate nothing else.” tion underrepresented votes at-large undisputed elec- It is that an congressional districts are outnumbered congressmen violate tion of all would majority repre- congressional policy manifested by minority sentatives elected 2a, 2 U.S.C.A. well as the § population.14 statutory requirement of almost one years represen- standing, explanation hundred But overlooks plight 6,159,346 people tatives be elected districts. This do not who policy emphasized by metropolitan national Mr. live within areas of Colegrove great go Justice Frankfurter four cities but who vir could Green, 549, 553, tually unrepresented years, 328 U.S. S.Ct. two (1946) possibly longer, at-large L.Ed. : elections grave should occur.16 I have concern for upshot judicial “The action consequences people to all of the political principle defeat the vital at-large Texas if elections should be held. Congress, which led more than a years ago, hundred tricting. require Opinion correctly recognizes dis- requirement, obligation This rights Court’s to balance the language Kent, parties of Chancellor ‘was repre- and the classes Redistricting Committee; years Opinion, p. fifteen 14. The 527. continuous service in the House. Population Congressional 15. Districts delegation 12. Statement made to Texas 1, 2, 3, 4, 7, 9, 10, 11, 13, 14, 15, 16, Congress, Washington, C., D. October 17, 18, 19 and 21. Reported Post, 1963. in the Houston Tr., p. 136, 22-25; p. 137, October 16. lines lines 1- 1963. 8. Congressional 5, 8, 12, Districts 20 and Opinion, p. 17. The
sent, remaining as people well state- as all not attained of Texas. should have attempted balancing Opin- prominence But time wide or national at election, history prob- ion does not it of the shows mention well-known also fact, historical would elected which must have been able that more than 16 overlooked, congressmen nine from Dallas and of the Houston.19 large selected in elections at since at- addition the disastrous effect to four Dallas, from come from two large and on areas elections would have Houston, or none San from Fort Worth great cities, people located outside the Antonio, only and smaller from three popu- extremely Court’s doubtful three, cities all and towns. Of the latter lation-only accepted as the test will be reputations had at statewide or national Realistically viewed, there last word. the time of election.18 people opposition from bound to be these test, at reapportionment on this to based at-large Therefore, are held elections if by finally passed on least it is until history, pursuant as to the Decree Supreme Court of the United States. future, usual, correctly predicts not delegation (two-thirds less than light recognizes Opinion and then The 23) elected from would be Dallas obtaining ly problem re dismisses the remainder from the through legislative Houston and 7 apportionment action hand, if the 7 February other in order the State. On before District, judicially con- Congressional 18. I will nine notice man from 2nd large (1931- from gressmen through Congresses at elected have been 72nd 1945), during 78th about at had been since the State of Texas which time he growth great Activi- Un-American which time began Chairman of the Repre- Six of our State. House of in the cities Committee of the ties ; Dallas of either S. nine were residents candidate for the U. Sen- sentatives largest prior race, Houston, cities the two ate in one statewide son or men, lawyer, Legislator prominent whose three The other of a State. well-remembered, bearing political figure now even the same names are already or na- statewide had received name. recognition Directory Biographical when elected. of the American tional 1774-1961, Congress, Dallas: Government U. S. (63rd Congress) Printing (1961). Sumners Hatton W. Office Congress) Strong (73rd Sterling P. emphasize party, per- 19. I no no here that (73rd Congress) Joseph Baily, Jr. W. Houston, son, Dallas, from other (88th Joseph Pool, Con- incumbent R. large city sought or has elsewhere or gress) suggested large. an- order for elections Houston: no There been effort exerted Congress- (63rd, 65th E. Garret Daniel Dallas or Houston or the citizens of es) great gain or these cities obtain Congress- (64th, 65th A. McLemore Jeff advantage repre- disproportionate es) overrepresentation sentation which Other: surely at-large would result elec- Sulphur Springs (64th Davis, H. James using at-large tions. This idea of elec- Congress) State : over the Known all reappor- tions as threat to coerce nationally Davis; Cyclone known as solely tionment the idea a member Chautauqua there as billed lecturer problems The which Court. this so Cyclone”; candidate statewide “Texas . concern me are those which flow from Populist Party member as a implementation idea, of this Para- prior many elec- his occasions graph THIRD of the Decree. Congressman-at-Large; served tion term. date state required one committees (73rd Congress): parties Terrell, political George Alto B. law by primary served as State election to nominate election Prior to his shall Senator, designate 'Legislator for 11 meet to their chairmen years preceding his as Con- nominate election decide whether conven- primary gressman-at-Large, served as tion or elections. Art. 13.46 Agriculture. Majority V.A.T.S. The considers Commissioner Dies, Jr., (83rd-85tli Opinion, p. Con- Lufkin date. deadline Martin ; Congress- gresses) Had served *23 large.21 Opinion accept But careful avoid 'elections at is too remote to study prohibits suggestion. alone reveals that time earnest summary such this serious a solution of legislative prob At least one additional problem. action— n suggested lem by is the Court’s reap Texas Under the Constitution necessary it be Texas to amend the portionment any other, law, cannot like provide prop Election Code in order to days after ad take effect until 90 full erly congressmen for the election of all journment Legislature.22 Com large by in the State dis than rather mencing with the deadline date Feb provided tricts as in Article 197a.24 ruary backward, computing presently All by districts are served passed on such an act would have to congressmen. at-large Even if elections order for before November held, were is reasonable to assume by date. it to be deadline effective many people in those districts would permit to But attempt defendants order to want opportunity at least the to reelect execution, stay to of its obtain congressmen their incumbent in the at- until Decree not does become effective larg-e But, highly unlikely elections. it is stay Therefore, if a November congressmen thinly-populat- from the by latter date should not be obtained regions ed far removed from the metro- disposed should be Governor politan areas, only and known in their attempt reapportionment obtain districts, get could renominated or re- through Special Session, and the he at-large elected in experienced congressmen elections. these If days— only would three swept should be Saturday 2, Sunday November November out of officein an avalanche of statewide :3, Monday the Ses 4—for November votes, probably it would be due more to convened, reapportion called, sion to be their reputations lack of statewide than adjourned. adopted, ment Session qualifications to their or lack of them. do “coercive not believe that even the consequences, The unfair- inherent and so relief” readily Bench conceived ness, people living present is administered in the Decree having districts from not a reasonable enough powerful such action to force opportunity congress- to have their own three-day period. within this men disturbing. reelected is And, the might by plaintiffs It be said answer consequences to the entire reapportionment, passed, could be when congressmen the removal of these emergency measure, as an effective dome threatened, expressed will immediately ex rather than after people through of Texas normal 90-day period. piration But such political practical action op- but suggestion completely unreal would be eration of an unfortunate intervention emer istic it is well known that because untimely order court, of a federal gency legislation providing for immedi disturbing. likewise very pass, hard to effectiveness ate is of controversial even the absence Election eongressmen-at-large would carrying A measure such an emo sues. cause far more serious discrimination tionally-charged reapportion issue consequences people living out- only my by population great ment would in metropolitan side the areas than is opinion impossible pass alleged two- even presently, exist today majority every region thirds of the House representa- substantial required to make it effective imm Senate tion districts. Plaintiffs claim ediately.23 possibility obtain underrepresentation serious in a ing legislative apportion the immediate At-large few areas. elections would leave suggested paragraph many regions in the last ment of the State of Texas and Opinion, p. 21. The 23. Ibid.
22. Tex.Const. Art.
Dissent,
§ 39.
24. See this
Section III.
people,
doubtedly
practically speaking,
reapportion-
(cid:127)their
with-
result
another
representation
designation
out
ment and still a
at all.
different
Meanwhile, many
districts.
citizens and
at-large
today
elections ordered
*24
having
districts of the State would be
against
just
country
are
as certain to set
suffering
their votes diluted and be
un-
city,
against large city,
city
small
eco-
overrepre-
derrepresentation,
enjoying
interest,
against
nomic interest
economic
redistricting
sentation, due
on a
to
based
county,
against
against
area, county
area
by
standard announced and commanded
against
generally
district,
district
and
compel-
this federal court when the most
day.
antagonism,
night follows
foment
ling
required
reasons
the Court
that
sense, appro-
common
It seems me that
stay its own hand.
weigh-
carefully
priate perspective
a
and
regard
rights
of
political
of all
ed
for the
Moreover,
presently pending
there is
people
require
of
that such
the
Texas
contesting
before this
the
Court
suit
granted.
mandatory type relief not be
constitutionality
apportionment
of the
of
Legislature.
If,
am here
the Texas
and I
evaluating
ahead, let
as-
us
In
what is
expressing
opinion
no
merits of
as to the
Legislature for some
sume first that the
Legislature
case,
that
the
is determined
does,
Texas
reapportion
reason
congressmen
not
unconstitutionally apportioned, this
to be
large; and
elected at
Legisla-
Court, by requiring
secondly,
reapportion
that
on the
it does
congressional
reapportion
ture
dis-
today’s population-only
of
basis
test
determining the
tricts without first
lidity
va-
congressmen
Texas
from dis-
are elected
Legislature’s apportionment,
reapportioned.
tricts
us assume
so
Let
nonsensical situa-
would have created the
today’s population-only
further that
test
unrepresentative
requiring
of
tion
by
is stricken down
the United States
affecting
body to make a determination
Supreme
my
Court,
opinion
it
will
representation
citizens.
other
Texas
event,
be.
either
this Court would
required
Texas to un-
have
the State of
granted
stayed,
injunction
is
If
dergo
great
unnecessary expense
placed in
of Texas could
be
Legislature.
Special
aof
Session of the
electing
position of
its con
anomalous
gressmen
district
under a
at-large
held,
should
If
elections
be
ing
unconstitutional
statute declared
disruption
complete
(a) a
there would be
certainly be
This
court.
would
federal
ensuing
congressional representation
cast
situation and would
an undesirable
many present
certain
from the
congressmen
defeat
right
upon
of those
doubts
serious
living
great
outside
Congress.25
be seated
elected to
cities,
virtually
representa-
(b)
no
those cities dur-
tion of the areas outside
ing
only possible
under
circumstance
congressmen-
period
of service
fraught
not be
would
which the Decree
at-large,
of the basic
all in violation
gravest
consequences would
with the
Texas
policy
United
States
following
events:
the occurrence of
be
congressmen
districts.
be elected
that
stayed,
injunction
(2)
(1) for
to be
hand,
Legislature
Legislature
reapportion
other
On
for the
Special
only,
population
(3)
called into
for
should be
the basis of
Session and on
patchwork
Supreme
reapportion-
out a
Court to de-
hammer
United
States
today’s
population
test
is the
ment based
only,
correct
clare
congressmen
reapportionment,
(4)
would be elected
for
standard
again
Legislature
which
would
to be deter-
districts
have to
the Texas
be
constitutionally
subsequent
apportioned.
Un-
reexamined
mined
light
guidelines
occur,
almost
certain
all these events should
less
extremely doubtful,
soon
is
end
laid down
there
no
to That reexamination would un-
ahead.
Court.
mischief
Opinion,
expression
See
Footnote
for an
of the same view.
Necessary
so,
quite
do
Parties to to
another matter
III. Absence
Mandatory
appear
require
would
Relief
that this
Effective
Grant
jurisdiction
persons
over
all
Decree,
Paragraph
while
THIRD of the
officials
must
who
function in order
unclear,
aof mandamus
in the nature
to hold such an election.
compels
mandatory injunction which
or
parties
Evidently, Paragraph
re
perform
acts.26 It
certain
orders
THIRD
action,
Congress
prevents
all
quires
than
members of
nominat-
rather
***
large
Congress
says
ed and
“Members
elected at
it
because was
**
at-large
felt
elected
shall be nominated and
elections would not be
*25
Paragraph
added.)
consequence
injunctive
THIRD the
(Emphasis
natural
by
declaratory
simple
Court
and
declaration
the
relief
not
contained in the
is
a
at-large
requires
Legislature
reap-
election
if
an
Decree
law
the
fails to
that the
portion29
should
the
event
asked
reapportion.
The Court
fail to
against
brought
The instant suit was
by the com
no such declaration
to make
plaint,
Judge
County
County
the
and
Clerk of
nor
parties neither briefed
the
County
representatives
Harris
of a
not
argued
question, the Decree
the
consisting
county judges
class
all
legal princi
a declaration
worded as
ples,
throughout
county clerks
the State.
plain
Para
is that
truth
and the
However,
Judge and Clerk
the defendant
to declare
graph
meant
is not
THIRD
class,
do not answer
exists,
such
for
fact
legal rule.27
only.
for themselves
These
but
carefully point
Although
Paragraph
defendants
out
directed two
that
is not
the
county
county
judges
parties, it
clerks
against any
person or
other
may
named
not
to
court does
interests adverse
theirs.
presumed
must be
“hollow,” “empty” and
intentionally issue
Avoiding
failing
resolve the
to
therefore, must
and,
it
orders
ineffective
problem whether the defendant
ticklish
Judge
Paragraph
THIRD
presumed that
be
properly rep-
and defendant Clerk
Court
apply
The
to someone.
to
intended
alleged class,
such
Footnote 4
resent
jurisdiction
de-
to order
those
has
“Although
Opinion
the nature
states
it;
properly before
since Para-
fendants
is such that
are
their duties
designate
par-
graph
does not
THIRD
parties
respect
proper
elections
with
to
apply,
it is to
to whom
ticular defendants
County,
need not
held in Harris
we
be
to
presumed
it is
intended
be
they may
it must
be sued
whether
determine
in this
apply
all of the defendants
to
to
representative
since effective
Defendants
construe it.
case.
so
by
injunctive or de-
is available
relief
claratory
against
Governor,
orders
appear
Nevertheless, still
would
Secretary
State,
Attorney
and the
necessary
Paragraph
parties to make
Opinion
The
therefore ex-
General.”
presently or
not
THIRD effective
pressly
determine
fails to
whether a
per-
The
properly
before
Court.
brought
proper
has
class action
been
such
by numerous and var-
of tasks
formance
give
jurisdiction
the Court
as would
over
necessary
carry
an
to
out
ied officials
county
county judges and
clerks
all
in-
The issuance of
in Texas.
election
Texas.
in the State of
against any
junctive
these
orders
complaint
holding
sub-paragraphs
prevent
(4),
officials could
Paragraph
(6),
(5)
these officials
But
command
II describes
election.28
by
specified
appropriate
hold
with
citations the ex-
law to
and those others
detail
conceding
way,
imposed upon
duties
in a certain
State
an election
arguendo
tensive
County
Chairmen,
power
has
Committee
that this
Executive
Lane,
Tr., p. 137, lines
Co. v.
13-21.
Duncan Townsite
See
62 L.Ed.
38 S.Ct.
U.S.
Opinion.
1-4 of
Footnotes
28. See
(1917);
Board of Commissioners of
Y,
County
29. See Section
this Dissent.
Aspinwall,
Knox
How.
(1860).
529 harbinger ruling However, they a here well be further hold that prima popu- facie case can be rebutted decision that Court’s ultimate standard, demonstration of some rational basis for proper lation alone is not the disparity.42 long way This is a post-Baker Several v. Carr cases holding is the sole basis population disparity held can be congressional districting, and none magnitude prima sufficient to make out congressional redistricting 0f the cases 41 43 case of invidious discrimination has so held facie remedy.” ; tricts with the 183, Legislature apportion Congressional Amendment to the United States Consti- ity. tution does not test for itiative as between its ness, Wood v. Broom protection Sup.Ct.1962), portionment State termination of equal States do not tion and to be no behind the siding basis in our deny served also to rebut such assure tion Clause of the Constitution does not facie case. The evidence masses seems so by counties claimed population densities, counties, distances Congressional Districts, hard, as to the Supp. (E.D.Ky.1963), (D.Colo.1962); Clark v. With Lisco v. Wisconsin v. Lund v. Thigpen Wesberry Vandiver, similar (N.D.Ga.1962), * * * whether the (W.D.Wash.1982), in 187 207 upon Constitutions, 577 statutes, all judicially knows, decisions respect population.”; by plaintiffs, invidious discrimination State, presence and those longer open relevant proper F.Supp. existing (E.D.Va.1962) ; Mathas, (W.D.Wis.1962), v. Carter, McNichols, the basis of numerical proof, together political institutions, clause of history statutory on the Population Meyers, “Neither require congressional ap- *29 rationality Zimmerman, require “That to the Mann v. diffusion of require * * system factors, thoroughly 885 or districts be the establishment laws of 871 145 So.2d “We would nor the Federal having basis absence their system, (W.D.Okl.1962). 208 F.Supp. prima that the Federal nor reapportionment, the Fourteenth thinly populated rebut is one of several dispute.”; “The Constitu- has that including Davis, Equal with what the Moss own evidence F.Supp. 826, F.Supp. presumption. F.Supp. 276, concentrated 209 “The the Florida state political the United a population, established defendants facie legislative power arbitrari- apply historical precisely Court as together v. Burk political F.Supp. Protec 213 policy equal prima equal de- a (Fla. con- case dis nor 451 471 in F. vidious not stated is not ing. it been whether a Douglas under v. 1110, important vidious we must “ ‘ Ala.1962), “Judge Bell case which states “The traditional so legislative ulation are to be considered. Sims v. Carr, lating an invidious discrimination test in of all relevant factors Optical Co., the federal and state tricting, Frink, political strength. Gray, Ga.1962) ] continued to formuate a test crimination based on se the political political gerrymandering eases. wood v. D.N.Y.1963) for invidiousness on a consideration of all relevant factors such as edy, dicates that other factors as well as rationality Supp. The invidious discrimination test was Toombs v. Although Wright An examination of selects Oklahoma, * * * infected, $ presence Constitution.”; invidiousness, system oppressive system Opinion and the delicate 99 L.Ed. et As 86 but was the 460 208 discrimination] discrimination,’ seq. (N.D.Ga.1962), Rockefeller, in his here L.Ed. we stated Williamson v. Lee ‘a institutions —federal or test; factors in classification of state Equal by F.Supp. 158, [*] has a historical basis in our F.Supp. 431, particular (S.D.N.Y.1962), 348 [W]e make the but at Footnote 24 as articu 316 U.S. touch on Fortson, deal arbitrary, 1655]. the concurring opinion 563], treatment.’ set there is room for absence State U.S. arising Protection Clause has with discrimination not policy, * essentially v. majority springing forth # in 214 apportionment.” relationship those race, ‘The Rockefeller, governments * 483, race or 535, on a Universal diffusing * * as it does when rationality F.Supp. whether or not * [in out of a- state by 168-170 whether or not 436-437 creed or prohibition 489 [75 cases 541 [62 S.Ct. political made ‘an in- consideration F.Supp. 248, See Skinner in Baker v. “Unlike Mr. Justice test *.’ Sanders v. nationality from dis- racial and ” between equality 897 cited weight- * * * Honey in that [of 211 F. under (M.D. or ir state, (N.D. color, [*] rem S.Ct. pop tost dis per (E. in- 530 question constitutional here of the Court at issue V. Jurisdiction justiciable. any matter, a court is bound weigh carefully propriety its Or- give B. requested Jurisdiction to upon duty ; matter,
der
rests
in this
granted relief.
Court,
This
a
Court
thousandfold.
pleadings
pray for
plaintiffs
In their
government cre-
an arm of the national
reapportioning
an order
the State
by
Constitution,
ated
court
adopt a
event the
does not
power
jurisdiction;
judicial
limited
its
by
reapportionment
constitutional
act
Congress has
is limited to that which
July 1,
for this
request
Plaintiffs’
granted
in
with the Consti-
accordance
urged
relief
not
trial or in briefs.
was
subject
here dealt
tution.44 The
matter
Therefore,
express
opinion
as
here
no
expressly
the states
reserved to
with is
to its
to the
status or as
Court’s
tradition-
in that same Constitution
order, jurisdiction to enter such an
regarded
ally
by
sole
to be the
courts
grant-
pass to consideration of the relief
except
prerogative
states,
tó
of the
Paragraph
ed in
THIRD
Decree.
very
degree.
limited
Amendment,
inter
Eleventh
(a) the sub-
here concerns
Jurisdiction
preted by
Supreme Court,45 prohibits
ject matter,
(b)
or
as well as
by
against
state
suit
federal court
plead-
remedy
sought
(1)
plaintiffs’
one of
citizens in
of waiv
the absence
ings,
granted plaintiffs
not
(2)
but
immunity.
er
But
state of its
Clearly
sought
pleadings.
allied
in their
Supreme
parte Young,
Court
Ex
questions
to the
those
addressed
U.S.
52 L.Ed.
S.Ct.
involving
of the Court
sound discretion
juris
(1908)
had
held the federal courts
denying
taking
appropriateness
against
of a
diction
a suit
an officer
jurisdiction.
against
state, normally considered suit
enjoin
prohibited,46
his
authority
state and
then,
What,
judicial
is the
enforcing
a state statute
violation
this
is clothed
with which the Court
hold,
soTo
the Fourteenth Amendment.
matter?
could
the Court reasoned that a state
subject
matter
Jurisdiction
A.
officer to act unconstitution
authorize its
justiciability.
ally
the officer was therefore
says, subject
Opinion
matter
As
individual who
the Court
an
before
closely
justicia-
jurisdiction
injunction
related
prevented
could be
Opinion;
each,
respect
bility.
enforcing
With
the unconstitutional statute.
F.Supp.
Wesberry
Vandiver,
v.
very
juris-
statute which confers
Colegrove Green,
;
(N.D.Ga.1962)
special
upon
three-judge
diction
this
L.Ed. 1432
66 S.Ct.
U.S.
court,
(1950),
28 U.S.C.A. 2281
§
Carr, supra,
cover
(1946); Baker v.
Congress
attempt
to lessen
result of
divergent
spectrum
views
full
of the de-
public resentment
to the effect
subject.
It is inconceivable
Young.47
parte
in Ex
cision
regard
remaining
will not
doubt in
basis, then, may
what
or-
resolved
Court when
On
*30
at-large
Wesberry.
purposes
der that
elections shall be held
decides
For the
ending
leg-
Dissent,
subject
“[p]
enactment
assume
of substitute
matter
I
place of said
jurisdiction
in
Art. 197a?”
to exist and that the federal
islation
Louisiana,
1,
goes
Equal
134
10
45.
U.S.
S.Ct.
Protection Clause
no fur-
Hans
the
”
(1890).
504,
L.Ed.
than the invidious discrimination.’
33
842
ther
244-245,
724-725,
at
waived its
either inherent
ment,
and after Baker v.
both before
existing by
sovereignty
virtue
state
Carr,
phrase
equity”
“want of
Amendment,
in this
the Eleventh
to suit
commonly been
dismissal
used to sustain
plaintiffs. This Court
these
grant
or refusal to
immediate relief. Of
jurisdiction
over
has never obtained
course,
declaratory judg-
in those cases
Texas;
jurisdiction
strict-
injunctions
ments and
al-
were almost
ly
imparted
virtue
ways
granting
limited
sought, and the
of either
injunc-
Young
prevent
clearly
parte
Ex
within
sound discretion
—-to
case,
legislature
the Decree
in such
even
did not act. That was clear
But
enjoin-
defendants,
ly
question
at
before the
should be directed
the central
holding
unexplained
Court,
ing
elections
and is
dicta.
them
large.
way
The Decree
other
than
(3963 Supp.)
disregards
2a
seems
apparently
§
U.S.C.A.
Eleventh
require
except
districting
spe-
in those
all within ear-
and orders
Amendment
(cid:127)
cial circumstances listed. The situation
\
shot.
clearly
not included. The Con-
here
123, 158,
Young,
parte
209 U.S.
49. Ex
expressly reserves
stitution
to the state
(1908),
ditional
ed the
restraint
same result
that con-
involves
gressional
“equity” jurisdiction,
more than
it
equal
as
were
districts of
size
probably
longer
does,
only
required
in
no
is
academic
statute
after
1929
terest
in
prior requirement
this kind
had
of case. Mr. Justice
not reenacted the
Frankfurter was
call attention
content to
that effect.53
jurisdiction
to the
equity
Court’s
in Rail
Colegrove
Green,
majority
The
in
v.
road Commission of Texas v. Pullman
supra,
speaking through
Justice
Mr.
Co.,
645,
496,
643,
500,
312 U.S.
61 S.Ct.
expressed
Frankfurter,
agreement with
reversing
(1941), where,
533 gressional presently and instant case there is district unconstitutional before giving Court, case, enjoined this in a addition to its enforcement this before oppor- challenging legislature validity ap- suit a reasonable the the state tunity following portionment Legislature. the cases the Texas to act.57 In Carr, shown the courts have Baker v. A factor dis- in other cases legislative proc- great patience with state missing weighing equity for want of but insup- esses, presented with even when refraining favor of action from apportionments. portable presently pending this case before Supreme the in- Court are several cases given by Rut Mr. Justice The reasons volving legislative ap- congressional ledge concurring opinion in Cole in his Supreme Court portionments.60 grove Green, supra, dismissal v. those cases could well what establish pres equity pertinent to the want are guide- Carr, did not establish in Baker v. explains court that a ent case. He apportionment. guide- lines for Such grave upon consti should avoid decision provide lines would invaluable assistance especially such when questions, tutional Legislature reappor- the Texas in its may bring the court’s function decision tionment efforts and to this in test- Court departments political clash with the into ing validity the of the fruits of such ef- government, alter tenable Therefore, forts. this should re- Court ground disposition of the for the native acting frain from at least until the Su- emphasized controversy presented. He preme apportion- Court has acted in the case, controversy in that presently pending ment cases before it. case, was in this same as involved jurisdiction course, consequenc- a character that Of undesirable delicate so Dissent, only in most com es discussed in this exercised Section II should be pelling precipitous which result from circumstances. why today, action taken are other reasons Wesberry case Those factors grant this Court should not the decreed majority persuaded dismiss which relief. present in equity also a for want Finally, emphatically, legis- most Wesberry state this case.58 given should be reapportioned previously been had lature basically forthcoming opportunity local to solve this possibility of relief and the body problem fed- apportioned without coercion from the properly such a whereas, great eral courts.61 import;59 warranting F.Supp. Meyers, Thigpen a federal court’s 826 considered as 211 v. 57. See granting legislative (W.D.Wash.1962); Zim in a case of v. Wisconsin malapportionment (W.D.Wis. F.Supp. merman, within a the ab- state 183 209 any practical F.Supp. Carter, 1962); sence of means 448 Clark v. plaintiffs might hope Rockefeller, Wright (E.D.Ky.1963); obtain relief v. Honey legislature.” F.Supp. (S.D.N.Y.1962); the hands of the state at F.Supp. F.Supp. Rockefeller, wood v. ; Mathas, (S.D.N.Y.1962) Lund Opinion, 60. See the Footnote 6. (Fla.Sup.Ct.1962). So.2d Congressman Emanuel Celler of New question involving They political are: York, hearing in a before the Committee gov- branch of the federal * a coordinate Judiciary, Representa- on the House of question ernment; political posing tives, recently imprac- stated that it was problem difficult solution with- delicate ticable to draw district right depriving others of the to vote out Washington. lines He stated that itself redis- districts unless Court area, and social interests of an economic state; possibility of relief tricts geography, topography means of legislature; possibility from the state transportation, the desires the inhab- Congress. of relief from representa- their elected itants well as Judge places great tives, political Tuttle em- and the factors should all 59. Chief factor, considered, legisla- phasis upon states, for he and that the state equipped “In Baker v. Carr are far better to deter- tures stressed as one of the factors which it mine and evaluate those factors than *33 agree position fore a the end of the It was the of Chief Session. I with year judi- Judge part Carr, mere since Baker and there v. Tuttle that “it is a pending compelling re- was no a statesmanship court action cial for this Court redistricting particular stepping when initia frain the bills were from into this Legislature acting Legislature ted.65 out of the The area was until after * * * opportu- compulsion disposition of moral and its State had a fair duty. nity to do present abuses.” its official Abraham to correct Senator Legisla- Representative (Emphasis Kazen and Menton Mur added.) Texas ray Legislature panic and testified ture should that the Texas not be forced recognized inequity had in the 5th without reflection to create the semblance districting Congressional congressional any type (Dallas) and that District Legis solely rectified, population it would that the based on in order but merely lature, desiring prevent destroying injunction to do more than an remedy right by situation, congressmen worst had under election of might per- taken the much difficult task districts. a more be of different properly redistricting Legislature suasion if the had been the entire State. Texas redistricting, such lax or derelict in but explained These witnesses that count- is not the case. making considered, less factors had to be rearranging congressional districts Let us examine what occurred pass no mean task. But each House did past and determine Texas whether Although redistricting Major- bill. Legislature handling capable ity feel that inconse- effected bills problem. 1957, long Baker before v. change66 quential seen fit to Carr, Legislature, most them find unconstitutional as measured gave reapportionment, recent an addi- by population-only Majority test, congressman tional to Houston recognize precedent fail to no that estab- changed eight remaining twenty of the lishing population as the sole standard districts so much that were closer during existed the deliberations average. to the that time the At Legislature. Population-only never was population disparity between the 4th today. held to be the sole test until Congressional was not near- 5th Districts Furthermore, ly great today.63 Legislature so as it is The Texas has indicated Legislature past ninety the Texas was not then act- years its actions for the ing assumption equal popu- on the reapportion- reasonable attitude toward ing. lation was the sole factor to be consid- changed; That attitude has ered.64 shown statements of the Governor testimony Representative Murray was not until Baker v. Carr decided Kazen, and Senator it still exists. Regular March 1962. Thei-e was no favoring hand, plaintiffs' Session 1962. the other On Representatives possibility position House of and the Senate is the exercise passed redistricting greater might, each bill at the restraint this Court Legislature, delay reapportionment but were Session benefits un- unable to reconcile their be- differences til elections. Congress agency national either House Bill was introduced 65. The March designate might 7, 1963; passed to do See Foot- the House it so. H.B. 871 6, Wesberry Vandiver, April 4, 206 F. on note Senate sent Supp. April at 285. The instant case was filed on 1963. 23, passed The Senate’s bill was 1963. Dissenting opinion, Wesberry 62. v. Van May 22, diver, supra, F.Supp. at however, They did, rectify the 4th-5th 227,735; 63. 1950 Census: District 4— Congressional inequity. District The 5th -614,799. District 5— (Dallas) Congressional split District Dissent, IV, (5th 512,973 peo- 64. See Section the view into two districts with ple 438,554 people) should not be the sole and 23rd with and the factor. 4th District was abolished. granting spokesmen. equal But in the say they entitled Plaintiffs *34 implication relief is contained an But, Rut coercive protection as Mr. Justice now. Legislature Green, less than Colegrove “The that the has been ledge v. stated in diligent. says the Majority cure The right the not And here is absolute. laymen Legislature, composed Texas sought may disease.” than the be worse lav/yers, as under- well as should have right involved here The constitutional v. stood the reach of Baker Carr full liberty pertain or to life does light “contemporary the constitutional calling attention for immediate not one development,” presumably the with irreparable harm. prevent permanent, to Carr, teachings of the benefit of Baker v. very the Opinion points well out The immediately proceed- that it should have may possibly harm that limited extent of guid- reapportion ed to Texas. But what plaintiffs.68 be suffered ance was Baker Justice Carr? Mr. Segregation Cases” In “School carefully explains concur- in his Stewart n whichthe courts have characterized ring opinion that involving invidious discrimination classic today “The three Court decides color), race, (being creed on based things ‘(a) and no that the more: delayed realiza- full courts have "the possessed jurisdiction court many peo- rights to tion of constitutional subject justicia- matter; (b) that a simply “grade year plans,” ple upon cause of is stated ble action outweighed the other factors because appellants to would be entitled rights of all these realization immediate * * * appropriate relief; (c) n people. all these standing appellants that the have challenge important plaintiffs apportion- here that the Tennessee It * * * they only representation; claim have ment statutes.’ do taken But the action be insufficient. it to **(cid:127)» n »** “ * * response plaintiffs’ * by Majority in most assur- Court [T]he many Texas citizens to plea cause edly question, does not decide the representa completely without effective ‘may weight of one vote weighing equities proper A tion. heavily county or one district more a sober consideration in this case weights than it in anoth- vote ” unnecessary, grave consequences of 265, at at er?’ 369 U.S. 82 S.Ct. inescapably to lead me precipitous action 736-737, L.Ed.2d 663. this should conclusion confess that do not must I understand action in order refrained 'Rave how reasonable criticism can be lev- Legislature sufficient Texas provide the Legislature having for not eled at problem approach in a calm time highly from this “taken off” controver- orderly manner. decision which did not con- sial gressional involve judi Inappropriateness of coercive D. redistricting and which did relief. cial nothing pointed more than was out Having judicial interven determined Mr. Justice Stewart. Opinion proceeds to discuss the tion, the reapportioned many has been granting judicial coercive
.appropriateness
Opinion. History
times, as noted in the
deference,
ar
With
ef.69
reli
duly
Texas to have been
shows
attentive
granting
support
such
gument
made
duty
reapportionment.
Further-
to its
more,
appears
and con
to be inconsistent
here
the record
shows that
legis
misconceptions
many
tains
apportionment is
present Texas
not ac-
process.
lative
gradual
ceptable,
because of
it is
appor-
Opinion
Throughout,
population shifts since
affirms the
n goodfaith of
Legislature
words,
appor-
other
act.
the Texas
tionment
Opinion, p.
513.