Graves v. Barnes

nonmineral. said lands mination Regional However, made Forester Individually GRAVES, on be- Curtis reports on the mineral on his decision half of all other voters and candi- by U. Geo- potential of the area S. similarly dates situated logical Survey a field examination v. engineer mining by Forest Service Ben BARNES et al. a field exami- that whenever concluded presence depos- confirmed nation Diana et REGESTER al. economically may valua- become v. ble, States to the United reservation Bob BULLOCK et al. approves of The court made. will be preserves procedure in that it Johnny MARRIOTT et al. deposits mineral United valuable States program a more flexible and allows for Preston SMITH et al. may exchange any area which undeveloped resources. natural rich Henry ARCHER, Jr., Van pointed that no out It further be should objection was made on the this nature Preston SMITH et al. the doctrine level and administrative Civ. A. Nos. A-71-CA-142 to Truck case cited above is the Tucker A-7 l-CA-145. controlling. Court, United States District plain- further The court finds Texas, D.W. to the court tiffs have failed to disclose Austin Division. legal upon

any basis factual which Jan. plaintiffs relief are entitled complaint. It in the amended claimed appears plaintiffs are dissatis- that the Forest taken fied with action Agricul- Secretary Service the court

ture. However much

agree it is no with this dissatisfaction overturning of the Secre- acts

basis

tary to his discre- which are committed

tion statute.

Now, therefore, it is ordered and this plaintiff order that the motions of

does injunction tempo- preliminary for a

rary restraining order for a summa-

ry judgment denied. are all

It that since further ordered parties of all

court with the consent along pleadings

considered all with all including presented, the ad-

the evidence ma- record and no issues of

ministrative remain, dis-

terial fact the motions to are treated as motions for summa-

miss judgment

ry by Rule as authorized

12(b) motions for sum- F.R.C.P. and the

mary judgment on behalf of all defend- granted. hereby

ants are Berg, Nelkin,

David H. Stuart M. Houston, Tex., for and Curtis Graves others. Wilson, Resweber, Joe Charles J.

Houston, Tex., except for defendants State officials. Gen., McDaniel, Atty.

Samuel D. Asst. Tex., Tex., Austin, for State State officials. Tex., Mauzy, Dallas, H. Oscar Oscar Austin, Mauzy, Richards, R. David

H. Regester Tex., for Diana and others. Irvin, Steele, Cleophas Dal- L. Walter las, Tex., plaintiffs-intervenors Thel- for Washington, ma and others. T. Tex., Jr., Antonio, Idar, Edward San Bernal,f/ plaintiffs-intervenors for J. Joe and others. Tex., plain- Roach, for L. Dallas John Kail, and Samuel G.

tiffs-intervenors others. Clower, Tex., for Dallas, L. Ronald Ree, oth-

plaintiffs-intervenors Dick ers. Dallas, Tex., Cunningham, have not E. Brice created federal courts as George plaintiffs-intervenors L. Al-

for len, eunuchs. We realize that there perfect process, no others. electoral for de mocracy “proxi is at best search for Chairman, Roy Orr, Com- Democratic mate problems.2 solutions” to insoluble Chairman, mittee, George Willeford, Dr. although essay But our task with Luna, Committee, Republican Earl Dal- knowledge obscurity relative Tex., George, Jr., Austin, las, R. James difficulty inquiries of some that must Tex., Bullock, for Bob Sec. redistricting case, made we must others. vigorously ju nonetheless conduct our Dallas, Tex., Greenberg, for Robert M. “proximate dicial search for solu Johnny Marriott others. protection equal tions” to the Crouch, Tex., Dallas, for C. Thomas right to vote in conformance with the plaintiffs-intervenors . Tоm Crouch imperatives constitutional that have others. evolved, is the conclusion of this [it Houston, Tex., Hainsworth, Robert W. redistricting Court that the Texas plan;/ plaintiffs-intervenors for Robert Hains- Representatives the House of others. worth and sufficiently proximate to the constitu Douglas Eason, imperatives, Nathan Mc- W. Antonio, Tex., J. tional and we find that Guire, Henry San Van to be an unconstitutional denial of the Archer, Jr., equal protection and others. of the laws to all citi degrees zens of trespass, however, There are of GOLDBERG, Judge, TexasJ Before Circuit excep and with two WOOD, and Judges. and District JUSTICE proposed in tions Repre House of substantively sentatives that are more compelling than rest of the Texas PER CURIAM: proposal, the counties of Dallas and Bex ar, again legislature We are once the Tex conclude that the state leg given political should sector of the thicket of opportunity another redistricting purge required itself constitutionally islative to con this before tour it the condition of the trees feels judicially^ individual incumbent to act physiography inequities. as well as the of for correct the See Wells v. Rockefeller, explore “crazy 1969, quilts,” 542, est as we 394 U.S. 89 S.Ct. “groves,” contiguity, compactness, specie, 22 L.Ed.2d 535. (jn the cases of planting, Dallas and possi motivation in quality Bexar Counties the impedimenta constitutionality the extent of ble the constitutional tres redistricting. pass egregious years is so requires In ten of wander it ing political about immediate thicket, we have reliefs yet burning not explanation.1 found the bush of final political processes While STATUS OF THE CASES easily judicial do not themselves lend consolidated This action results from explorations, Court has di separate four cases filed in four district rected play courts must federal 42(a). courts. See F.R.Civ.P. As back- assuring their constitutional roles ground to decision, we believe that equal protection regard of the laws with helpful progress would be sketch the to the of effectiveness the individual vote. present of the cases to their status. lightly do not We ever assume the bur necessity meddling den of 22, 1971, Graves, of with On October Curtis govern of affairs another branch of Representative black State from Harris governments, ment or with state County, but the filed suit the Houston Divi- organics governmental system of our Texas, sion of the Southern District of seq. Niebuhr, Light See Exodus 3:2 et 2. R. The Children of (1944). The Children of Darkness constitutionality black, white, citi- and Mexican-American challenging of dis- who are members of apportionment of zens voters present Senatorial AFL-CIO, unincorporated of al- an association because in Harris tricts Although composed working leged gerrymandering. of men and women racial throughout Texas, (6) against injunction of the certain black effectuation sought by County. This present was office-holders Dallas Senatorial convening three-judge opinion Court is now of the those plaintiff, prеviously requested. action entered conditional orders court was This assigned granted court of the Honor- which action to the was to the class status Bue, Jr., Tyler plaintiffs groups Dis- and to the United States six able Carl O. Judge, District of Texas. enumerated should be trict Southern intervenors above amended, (1). 23(c) F.R.Civ.P. Regester November Diana On granted only motions to are intervene qualified other residents and and several respect to the individual and offi- Tyler Division, Eastern voters capacities of the intervenors. The cial challenged Texas, Legis- District of motions to sue or to intervene classes Redistricting plan for the lative Board’s hereby are denied in of the the interests Representatives House on judicial sound administration these grounds, alia, inter that unconstitutional cases, pleadings hereby and the disparities exist amended to eliminate references class many House districts and that multi- 23(d) (4). representation, F.R.Civ.P. in- member districts Texas result Chavis, 1971, See 403 U.S. Whitcomb against vidious discrimination certain 124, 128, 1858, 1861, 91 S.Ct. L.Ed.2d racial and elements. Named as 363, 367 n. 1. defendants in suit the Secre- were tary Texas, Tyler plaintiffs sought only State de- claratory Ex- Chairman the Democratic State relief. In his answer the Sec- Committee, retary ecutive requested three-judge Chairman of State Committee, Republican pursuant State Executive court to 28 U.S.C.A. § alleging the Chairman the Democratic Execu- that the inevitable result of County, declaratory judgment against tive Committee of and the Smith the defend- Republican Chairman of the Executive injunction ants would be to effectu- County, Committee of judgment Smith all of whom injunctive ate and the and charged by per- declaratory Texas law with essentially the relief had the pertaining formance of certain duties to redistricting same effect in a case. We primary general necessary Texas and elections. do not feel it to the resolve plaintiffs, bringing three-judge regard The their suit issue with to the capacities Tyler case, their panel individual and in behalf for the unanimous on is qualified Texas, of all coterminously voters in were au- all issues raised Tyler thorized to maintain their action as a case and in the consolidated cases by action order of class the court. the Northern and Western dis- tricts. of several classes were Members interyene, permitted individually 2, 1971, to subsequent both On November respective capacities, filing in their Tyler action, and and to of the suit was brought maintain their actions as class actions. in the Dallas Division of the (1) The classes included: black citizens Northern District The of Texas. Dallas County, plaintiffs allege apportionment voters Dallas Mexi ¡^(2) And plan can-American citizens and Representa- voters of Bex for the Texas House of (as ar and Dallas Counties well as other tives is in that unconstitutional multi- (3) Republican counties), against and citizens member districts discriminate County, (4) poor racial, voters of religious, po- student, Dallas and certain and County groups. Injunctive against middle citizens of Dallas litical class relief desiring challenged apportionment vote and for the for run and (5) convening Representative, three-judge office of court were pursuant to 28 transferred U.S.C.A. them to the § Austin Division sought plaintiffs. Texas, The action was of the Western District of see assigned 42(a). pro- to the Honorable Robert M. The order F.R.Civ.P. also Judge, Hill, following: United States District vided the District of Northern Texas. “The as constituted Courts each have 1971, plenary power questions Chairman over all in- On November cluding, limitation, Republican Executive Committee without the extent County any and Bexar Coun- which one more or all of the Bexar or ty Republicans An- issues in each of deter- in the San the cases filed suit three-judge mination court or a tonio District Division Western single judge, Texas, attacking ap- nature, and the kind multi-member granted portionments character of relief to of certain districts of the general form or content of decrees on the same House (whether grounds separately or consoli- orders filed in stated the actions dated).” Districts, Eastern Northern alleging that in Bex- Senatorial three-judge conclude that We County politically racially ar were required under 28 court U.S.C.A. gerrymandered. Injunctive relief deny Case, and we 2281 in the Houston § convening three-judge of a court post-trial motion to plaintiff Graves’ requested by plaintiffs. were plaintiff asserts Houston sever. Spears, Honorable Adrian Chief A. challenges only redis suit that his Judge Texas, of the Western District of dis tricting Senate Harris assigned, whom the action was subse- state, and tricts, entire not those of the quently application made Honor- single-judge therefore a the case is Judge Brown, R. able John Chief agree, con cannot matter. We Appeals Circuit, Court of for the Fifth challenging a plaintiff clude convening three-judge for the of a court general application state statute ^ in connection with this case. seeking throughout and is then the state county’s ap remedy by injunction one PRE-TRIAL PROCEEDINGS portionment scheme. See Whitcomb Judge Brown, At the direction of Compare companion Chavis, supra. Estes, Judge Honorable Joe Chief E. Flowers, Moody Board cases of Texas, presided Northern District of County, New Supervisors of Suffolk joint pre-trial an informal conference Bianchi, 1967, 87 S. 387 U.S. York v. 10, 1971, held at Dallas on December re- three- L.Ed.2d where a Ct. lating foregoing to the four actions. At improperly judge con held court was conference, the conclusion of the an order challenged plaintiffs when the vened by judges, was executed all of the five districting only for the schemes local that, just, case, which found the each single county in Ala of counties boards speedy, inexpensive disposition of Ince v. York. also bama and New See litigation required the consolidation and S.D.N.Y.1968, F.Supp. Rockefeller, 290 convening three-judge the of a court. Ince, appor Moody the Unlike 878. Judges Bue, Spears, and Hill each con- challenged case in the Houston tionment naming judge sented to the of another redistricting Texas is embodied the any in his stead to a become member Senate, not state scheme for entire Judge three-judge court Brown which application, apportionment “of limited an might Judge approved convene. Brown county.” concerning particular a day entry. order on the of its 104, Flowers, Moody at v. 387 U.S. Judge 1971, 87 at Under these circum 13, S.Ct. 1549. Brown On December stances, it of the statute the nature constituted a entered order which challenged three-judge requires a

three-judge in each of the four court may attempt court, plaintiffs however cases. The order also consolidated addition, remedy they In hearing limit the seek. for submission cases

7H remedy each census. can United decennial it is not clear that the States Thus, the 62nd of the Texas limited.3 Senatorial Session The 1971, challenged primarily Legislature, January, with re that are convened in gard entirely are not was under to re- to Harris constitutional mandate County; thus, there could within Harris district both House and Senate. reach well a effect that could be domino districting plan for the was No Senate single given beyond count to a the relief Legislature. by dis- ever voted y.4 tricting adopted for the House bill joint pre-trial held Representatives conference At a unconsti- was declared 1971, 22, Austin, Texas, by Supreme on December of Texas Court tutional three-judge managing judge Craddick, 1971, 471 Smith v. S.W.2d Redistricting providing for ex- order Legislative entered an court discovery procedures in view ‍​‌‌​​​​‌​​‌‌​​‌​‌‌​‌​‌‌‌‌​​‌‌​​‌‌​‌‌‌‌‌‌‌‌​​‌​​‌‍of pedited refused to redistrict Board then House, 1972, filing February 7, asserting power deadline it had no It Texas. Legis- Mauzy for candidates However, office to do so. v. chairman Redistricting Board, 1971, was also ordered lative Committee Republican Executive State of Texas 570, S.W.2d Republican Ex- ordering the chairman of mandamus issued writ County be of Smith redistricting. ecutive Committee realigned On such Board to effect joint plaintiffs. final At a 1971, Board enacted 15, October plan 31, pre-trial conference on December the Texas Sen- which redistricted parties to 1971, stipulated it was 1971, 22, ate, enacted and on October any heard evidence all four actions that Representatives. plan House of case could be con- in relation to one plans cur- Both under attack regard to all the court sidered litigation. quartet of rent cases.

I TO PRESENT BACKGROUND Reynolds Supreme Court v. Sims LITIGATION wrote: holding “By con- constitution that as a federal Earlier efforts to secure districting legislative requisite ally in Texas stitutional both houses sound Martin, legislature Kilgarlin apportioned S.D. state must be are recorded court), basis, (three-judge population F. mean that on a Tex.1966 Kilgarlin nom., requires 404, Equal Supp. rev’d sub Protection Clause good Hill, L.Ed. an honest and that a State make U.S. S.Ct. districts, (1967). faith to construct effort 2d 771 nearly legislature, as houses of its both Article Sec- provisions of Under the practicable. equal population State tion of the Constitution * * * * * * Redistricting Legislative Texas, a Legislature overriding objective must be if the [T]he Board assembled equality first at its substantial redistrict fails to among districts, publication so regular the various after the session application judge apportionment no court to act when was 3. The Senate by three-judge population challenged court is made for a on the basis Attorney deviation, although or a defendant. General deviation the total applicable Eights people. Voting to involving 16,213 is not 4.5%, Act presented addition, plan In Texas. disap- by McKiethen, was of Louisiana Compare 5 the State 4. Bussie v. also Attorney proved by 14, 71-2783, September General 1971] [No. Cir. States, pursuant 42 Appeals to U.S.C.A. not United did in which Court by adjudication prior 1973(c), a require three-judge to § when a court thus, single judge; no state part there was redistricting in un- was raised issue injunction. Voting to 1971(g), amenable 42 § der U.S.C.A. single- Act, empowers Eights a which 712 any approximate-

the ly Kirkpatrick vote citizen is Consequently, in the Court weight equal any previous to that of elucidated its statements holding citizen in the State.” as follows: nearly practicable’ ‘as as “[T]he stan- 533, 577, 1362, 1389, 84 377 U.S. S.Ct. requires dard State make 506, (1964). Subsequent- 12 L.Ed.2d 536 good-faith precise effort to achieve ly, the Court made clear that whenever equality. Reynolds mathematical See population the fact of equality from deviation Sims, 533, v. 377 U.S. 577 S.Ct. [84 upon is raised the burden falls 1362, (1964). 1389, 12 L.Ed.2d 506] present “acceptable State reasons population among Unless variances among populations for the variations . . . districts are shown legislative the various districts.” despite resulted effort, such the State 1967, 440, Swann Adams, v. 385 U.S. justify variance, must each no matter 443-444, 569, 572, 87 S.Ct. 17 L.Ed.2d how small. 501, 504. It also reiterated that allow- free able deviations effectuation of a rational state Reynolds minor 84 discrimination.” Roman v. legitimate considerations 1964, 1458, recognizing S.Ct. from Reynolds 12 L.Ed.2d 377 variations which at v. U.S. Sims, supra, 1391, the Court noted: taint of certain 695, were and which 620, 710, limited 630. factors arbitrariness 377 “are incident 84 atU.S. “may S.Ct. based on to those that are Sincock, policy,” to the occur 1449, 579, or Because of population and the is may positions, it remains true that “[w]hat 394 which unavoidable limited “[The marginally permissible ^[*] U.S. achieve absolute justification Constitution] population at ^[*] differing 530-531, despite a State, ^[*] number variances which are is shown.” including ^[*] factual 89 equality, permits good-faith S.Ct. in one State ^[*] legislative situations the total at 1229. or for effort -X- unsatisfactory another, de- be practical “We realize it im- pending particular on the circumstances arrange legislative possibility to dis- Reynolds Sims, U.S. v. case.” tricts so that one has an identical each 578, at at 1390. 84 S.Ct. citizens, residents, number or willingness implied to ex- Court pre- Mathematical voters. exactness reviewing greater ercise “tolerance” hardly cision is a workable constitu- population justification for the State’s requirement.” tional apportionment of State deviation 577, legislatures: at U.S. departing S.Ct. While recognition from the implementing constitu- “In the basic representative minimus deviations unavoid- “[d]e gov- principle tional able,” 444, Adams, v. 385 U.S. at Swann ernment as enunciated 569, 501, Kirk- 17 L.Ed.2d 87 S.Ct. 1963, Sanders, [Wesberry Wesberry 526, patrick Preisler, 394 U.S. 526, 11 L.Ed.2d S.Ct. U.S. 1225, 1229, 22 L.Ed.2d 89 S.Ct. among population equality of 481]— redistricting case, congressional 524, a may well distinctions districts —some Court concluded: congressional and be made between Since, nonarbitrary way to legislative representation. see can no “We state signifi- point invariably, pick cutoff at which there almost suddenly in state de minimis. larger cantly variances become number of seats range Moreover, a certain legislative distributed consider to be bodies seats, congressional would encour- of variances de minimis than within a State range legislators sub- age for that to strive feasible use greater extent nearly to a lines equality division than for rather legislative establishing state practicable.”

713 congressional districting small, on of a than in while however the basis con- sistent, affording adequate representation policy? still rational State While confessing parts impossibility To so all of the State. do exactitude the long striving constitutionally valid, constitutionally be so in to fulfill the would resulting apportionment concept vote, person, one as the was mandated of one one substantially population value, on based one the Court insists on conform- principle equal-population ity premise: was not the this fundamental significant way. any diluted in Some- population is . . sub- “[I]f . flexibility may be what more therefore merged controlling as the consideration constitutionally permissible with re- apportionment in of seats the legislative spect apportionment to state legislative body, particular then the congressional districting.” in than right of all the citizens cast State’s weighted adequately effective Reynolds Sims, 577-578, at 377 U.S. unconstitutionally vote be im- would Abate v. 84 at See also S.Ct. 1390. paired.” Mundt, 1971, U.S. S.Ct. Reynolds Sims, at U.S. county upheld a 29 L.Ed.2d which S.Ct. 1392. legislative apportionment de- with total However, the Court viation of reported popula The the 1970 Census 11.9'%-. very sui that Abate was itself clear 11,196,730. made tion of as The Texas government involving only generis, local Representatives House of allotted 150 is Kirkpatrick apportionment. And the Hence, average population the members. holding may substantially the erode According 74,645 the per is member any Reynolds. dictum “tolerance” figures, is State’s own District 3 over upheld rejected case, percentages populated by (4,298) and District 5.8% enlightenment. are of little in other cases by (3,081), underpopulated is 4.1% (more Has remains the same: than The critical issue for a total deviation 9.9% variances, 7,300).5 any justified and all thе State representative (per by populated position). Furthermore, method of the State’s 1.2% undistributed, the total computing left If multi-mem- deviations County, per- treated as for Dallas actual deviation ber distort the unit, approximately minus centage be one would eleven dis- deviations those computa- respective parties’ corresponds method, The tricts. The which disapproved by 21.6%. produce figures Bexar tions for to a method that was approxi- plus by regard the State and Kilgarlin district court .7% plaintiffs. by dividing mately plus districts, to flotorial consists 7.7% Hence, plaintiffs population calculate would of multi-member the total as about representatives State for the total deviation number district distributing 29.3%, than rather to it then allotted 9.9%. population representa- we have concluded Since deviation each 9.9% of a position position is result not total tive tuted a each consti- deviation as if attempt population district, arguably single-member good to achieve faith practicable, nearly equality it resulting as sort of flotorial buried unnecessary this com- to resolve for us But a multi-member district district. computational plex single-member But we do conflict. not dis- a collection of plaintiffs significant the total district, note that think It is one tricts. contend, deficiency Coun- population and Bexar for Dallas deviations ties, and the excess or 16,000 just respectively, to about amount like should be treated 5,500 people people, total of population deficiency for a or excess percentage 21,500 people. around other district: amount of total figures a shorthand deviation deviation district should cal- “loss,” expressing dilu- percentage method of as a or culated above below weighting tion, disproportionate single norm of ideal district Reynolds (74,645). alleged as the votes. Just distortion result- peo- legislators represent ing concluded from the State’s calculation best cows, ple, would exemplified by so we trees not case of Dallas Coun- represent legislators emphasize ty. representatives eighteen that percentages Allotted people. people, 1,327,321, for County Dallas is listed under- 714 presented III, in this The last clause of Article Section of the evidence

In all case, attempted ex- 26 of the as not to Texas Constitution reads has the State policy its plain follows: of rational State terms “ equal popu- failure to create districts any county hen more than [W] one has nearly practicable, has nor lation population sufficient to be entitled single sought justify a devia- the State Rep- Representatives, one or such more equality. precise mathematical tion Representatives resentative or apportioned shall be depositions lengthy of the members The county, to such and for redistricting legislative board of the any surplus may population it be actual who did the staff members joined Representative in a District legislative drawing district lines any contiguous county with meaningful indications are devoid counties.” used. of the standards pursuant 1965, proviso, In to this Legislature several so-called created must conclude We Mann, flotorial districts. v. See Davis justified, simply under the has not State 1964, 2, 678, 377 n. 84 U.S. S.Ct. 686-687 we are re mandates that /constitutional 1441, 1445, 615, 12 de- for L.Ed.2d apply, that ad quired the deviations scriptions of such districts. These plan mittedly us. before exist in disapproved by flotorial a were argued that the deviations has State Kilgarlin three-judge federal court in long comply justified awith in order to Martin, S.D.Tex.1964, F.Supp. 252 standing policy, Sec embodied state Kilgarlin Hill, 418, supra. nom., aff’d sub the Texas Con 26 of III of tion Article Supreme Consequently, the Texas against Ann.St., stitution, Vernon’s procedure a to be fol- enunciated agree crossing county with lines. We comply lowed thereafter to with the State saying that this to the extent subject mandate, constitutional of course any whole askance at look Court would superseding requisites to the the Four- politi unnecessary mutilation of sale and teenth Amendment: within cal boundaries subdivision “4. With the nullification of However, preservation of State. surplus dictate relative to use of the justifi simply per county a se lines is population (less enough than for a dis- Rey population deviation. cation for a trict) county already of a which has Kirkpatrick v. supra; Sims, nolds v. representatives one more allocated question Priestler, supra. is: The real thereto, permissible join becomes rational Texas demonstrated Has portion (in county of that which the maintaining its consistent reason surplus population reside and which expense of /county the admitted lines at is not included in another district greater population devia disparities in county) contiguous within that with Attorney General As the Texas tions? county area of dis- another to form a recognized predecessor case example, county trict. For if a vio Kilgarlin: “[Cjounty be lines must population, and if a district 100.000 necessary extent to the lated ... wholly is formed 75.000 carry mandate of out the given county, county within at n. 87 S.Ct. Court.” U.S. district, and the area wherein the plan present 822, 17 771. L.Ed.2d joined con- live 25.000 We counties. of 19 cuts the boundaries tiguous area.” given explanation whatso no have been Craddick, 1971, Smith v. Tex. S.W.2d consistent state of the rational and ever Legislature, fol- In the follow policy necessitate that would redistricting lowing Kilgarlin, ing county apportioning enacted lines conformity Legislature ex which was in at the admitted subsequently approved procedure population devia pense of a substantial dealing surplus population with the tion. legislative adjoining State, even face various counties. example of the latter situ- explicit districts. An and directive unanimous legislative Dis- Texas, where highest exists in East tribunal, ation State’s (two overpop- counties) is redistricting board, separate trict in- 3 whole in four (three population by surplus and 4 stances, split ulated District has 5.8% by greater counties) underpopulated is (the al- than that whole population following list, representa- The which number of to a whole locable 3.6%. intended imply acceptable an de min- tives) districts. two additional between geo- percentage, Thus, re- imis and Counties demonstrates Brazoria Smith Hidalgo varying graphic representative, and make- distribution ceived whole one single-member three; up the excess of districts but with two, and Jefferson largest county population in was divided each deviations: representatives’ dis- other two between

counties). Hidalgo County). counties), deviation. The plus was County), part blatantly planation sized fication was advanced for Amendment mandate and location fication to be plus equality. The ary tricts. part of Red River ty. ties). Moreover, explanation was that of Red River Coun- Smith 2.9% sity State (another part (part (another part of plus (a integrity Hidalgo plus part While for necessary cutting 2.2% for these 3.3% of Smith and policy. that, two-member district deviation County, only 1.5% which the State violated 2.6% Hidalgo of Red whatsoever even and a deviation deviation for District 2 it is leaving crossing District some plus Counties without of State has deviation because of the found contains depredations deviation State’s certainly Bowie State’s Hidalgo minus by River) Smith county county 2.2% District It should be four other aside in District policy of 12, wholly within in the Fourteenth part figures also County, no 2.9% ventured no a five other coun- figures for for District 49 slicing and three other line and three other lines understandable county wholly suggested of 9 for of Cameron against District 51 substantial district preserving population (the the neces- deviations any justi- counties) has plus 1 resulting this area District show empha- (Bowie bound- within Smith justi- show been (one .1% plus ex- a ^{[78] [77] [30] [39] [45] [38] [27] [54] [40] [70] [57] [55]} tional ^[85] 4%. by in the three listed explicable. Adding of the above districts cutting county lines, creased ^{[18] [28]} plus ^[62] deviation; ^[66] District County to Even had the State demonstrated ra- District District 3.1%. addition to the fact that District 62 is adherence to a Percentage its deviation minus plus 3.2 plus 5.7 minus 4.1 minus minus plus 3.4 plus 4.3 minus plus plus 3.8 minus plus plus minus 4.1 plus plus 4.6 plus Deviation insupportable. the rest 4.1 and District 3.6 4.2 3.4 3.1 Having 3.1 3.7 3.1 3.2 3.7 which which ties ties ties ties County ty (Abilene) two deviations three south central such five six southwest nine seven northwest two southeast ten Panhandle six two northeast five south central six two east central the "core" part two part part totally has would portion south northwest Rio north Rio gulf and of Harris of Harris District more than large a minus a deviation of Grande Grande Harris Location coast policy central central part of surrounded still in Harris in several central central the State of Bexar Taylor Coun- counties deviation counties counties adjoined Valley Valley County County County counties counties of Bexar counties cоunties 45 in- counties counties of not be counties 1.7:% plus coun- coun- coun- coun- in- districts, complied involved in the itself the Texas multi-member has not rulings unjustified Craddick, throughout deviations exist Court’s any plan pre- little if note that Craddick offers From the evidence and the Reynolds requirement sented, satisfaction of the is forced to conclude any justify population simply had no that a that the State must State of simply policy apportionment no Craddick makes deviations. rational state pol- explain plan rational state effort to devi- that resulted , previously in Article ensconced icies III, ations disparate discussed and metropolitan Constitution 26 of the Texas treatments § ap- provision to the of that relation areas. The before the Court was portionment requirements legislative action, of the Four- product not a but fact, members, the Texas teenth Amendment. In the action of a board of five that Court made clear is a one whom member “ legislature. appears It to this Court that constitutionality of . . . [t]he really the board never board acted as a III, redistrieting statute [Article only as but individuals. There never the Constitution] 26 of the Texas § opera- seems to have been a tandem of by only question presented the to us among tions the re- board members with briefs and record.” gard principles to the constitutional or And the Texas Su- at 376. S.W.2d any guidelines. policy even lesser correctly preme Court noted: hearings only committee met for four participate times. The full board did not “Again, requirements all Section meetings, two those and one mem- ne- are inferior to the Article [of III] ber of the board testified did that cessity Equal he complying the with pay hearings any much attention to the Protection Clause.” event. The full board did not even meet Finally, the S.W.2d at 378. approve plan; merely the final it was variegated dis- court concluded that the passed fact, only around. In three mem- by county perpetrated lines turbances of signed bers of the plans. committee both apportionment plan were the Craddick ample testimony There is that the board required justified not “either to com- given absolutely legislative guid- was no ply one-man, deci- with the one-vote ance, begin nor did the board from the fail to sions.” at 471 S.W.2d 378. We legislative accompanied discussions that argue see the of Texas can how State apportionment the plans earlier for Tex- produce that its failure to evidence own example as. As an of what we must con- regarding in Craddick the constitutional clude to be considerable lack of rational Equal Protection clause mandates direction, point at no in its deliberations help explain satisfac- can somehow did the board ever debate or discuss torily justify popula- its failure to its general single-member issue of districts plan that is tion the new deviations opposed distriсts, as to multi-member ob- challenged instant Crad- in the cases. viously very important any issue proposition primarily dick stands for apportionment plan, particularly in language of Article that the restrictive proposal. point the Texas At no III, is not Constitution 26 of the Texas § ease was there ever a rational and con- facially Fed- under the unconstitutional differing explanation sistent Beyond Equal clause. eral that, Protection treatments accorded to Harris Supreme Court summed the Texas every metropolitan contrasted with general up position that this Court pre- area in Texas. One conceivable must take: viously-urged explanation for “rational” county do if to be divided “[A] metropoli- disparate these treatments of necessary comply so order thoroughly repudiated tan areas was requirement equal Kilgarlin In board’s actions. Amendment.” the Fourteenth three-judge assured court was policy “lim- 471 S.W.2d 377. defendants State’s Kilgarlm Two the five board members were defendants case. Second, any failed to its the multi-member district size any Representatives” consistent establish to county and that rational fifteen explain, policy let more state justify, alone that attained a million or would V from the constitu- in the future be sub- its deviations residents would tional, Reynolds Representative principles divided for districts. pro progeny. has also failed their brief asserted trial the State [/Texas differing justification hap explanation treat- vide rational for single and multi was hazard combination of ment of Dallas and Harris Counties county a mil- in this that whenever a attained member at issue . case.J jus irrationality, lion legislators fifteen This reasoned residents was allocated without longer tification, may separate left no be and dis would declaring at-large ground plan The district court tinct un district. Kilgarlin disparate approved Arguably, treat- Four constitutional. Coun- ment Dallas and Harris teenth between Amendment forbids arbitrary policy, simply apportionment bill in ties in the 1965 reflects “no but Carr, representation action,” upon capricious State’s reliance Baker 186, 226, be ac- would different treatment U.S. 82 369 S.Ct. Sims, county 663, Reynolds 691, a mil- it attained 7 v. corded a once L.Ed.2d any supra, population. now not lion Dallas and which is “free million, discrimination,” a population a greater of over one taint arbitrariness or well of entirely Sincock, supra, had in inde- population Harris Roman than v. any “policy” pendent population the State deviations: earlier of of 1960. This legislative of called to the attention “To a state’s of Texas was the extent that during public conclusively redistricting apportionment plan its board ignored. basis, hearings apparently . such a but was shown to have rational no * plan unexplained Equal of The abandonment Protection board’s violates pres- Mann, existing policy 1964, state belies an Davis 377 U.S. Clause.” v. policy. any 687, 694, 1441, 1449, state of rational 12 L.Ed.2d ence 84 S.Ct. 609, (concurring opinion). 619 Cf. compelled to draw This Court feels Swann, supra, there at Even where pre- two from the evidence conclusions theoretically for de- valid rationales regarding in which manner sented viating equality, from exact ([/this plan was drawn: ap- those plied systematically must themselves rationales might First, con whatever “tolerance” state, throughout explanation ceivably attach ato State’s in certain not ad manner hoc population ideal a of deviations from places in others. See and not at all reasonably appropriately cannot at Kirkpatrick Priesler, supra. v. redistricting tach the actions Rep plans acted on the House invalidated board which Several courts plan only pursuant containing unexplained resentatives’ mixtures sin- Redistricting mandamus, Mauzy gle v. In Krui- districts. multi-member Board, supra, proceeded McCullock, and which 142 N.W.2d 355 denier v. just (1966), in the manner declared draw conclusions its the Iowa Brown, 1965, plan reapportionment 63 See Silver v. sketched. unconstitutional a 308, 270, Cal.Rptr. county P.2d dis- making 405 multi-member Cal.2d 46 one 132; Legislature dividing of Cali of the State counties trict other while 481, Reinecke, Cal.Rptr. single-member 492 The court fornia v. 99 into districts. (1972). generally sus- P.2d Connor not be 385 held that the scheme would See Johnson, 1971, 690, justification. 91 S.Ct. reasoned 402 U.S. tained without this, L.Ed.2d have serious show 268. We Since the State failed A fed- plan this did the sort of invalid. doubts that board court declared the Reyn job Pennsylvania contemplated inval- deliberative eral district court which, plan worthy reapportionment judicial olds as abstinence. idated a scheme, varying a “curi like the Texas contained multi-member districts of num- representative pattern members, ranging up ous districts bers to 18 for larger County. v. Scran counties.” Drew Dallas Three of the 11 multi- ton, N.D.Pa.1964, F.Supp. 310, va comprise member districts entire coun- grounds, (Travis, Dallas); McLennan, other cated and remanded on ties eight L.Ed. S.Ct. the other 379 U.S. multi-member dis- particularly tricts, 2d 107. The district court the district lines cut boundaries rhyme and irration condemned the inconsistent without or reason. board’s single distributing al method used mixture of multi-member districts explicable de preserve multi-member The court districts. as an effort to coun- analogous closely ty popula- scribed a situation lines or to achieve substantial equality. justi- the one in case: tion this cannot be ground fied on the reduced devia- explana- “Defendants have offered no population. tions justify Nor can the State dividing fourteen of the tion for thus larger present plan on the basis single entirely into counties past policy preserving of either same member districts while county limiting lines or the size of dis- larger time, dividing the fifteen other Kilgarlin Martin, swpra. tricts. See many adjoining counties, them at-large kept The claim that Dallas was single-member counties, into district popular to conform to sentiment sim- two, crazy one, quilt and four- three ply record; contradicted more- In the ab- . . .. member over, even if the board based treat- legislative history sence grassroots sentiment, ment of Dallas on justifying explanation it and we constitutionally apply it could not none, conclude can have found only. standard selected See areas districting result either the that this supra. Kirkpartick Preisler, im- More v. gerrymandering partisan ad- of portant, Supreme the held: as Court wholly vantage that it is ... or plain- capricious. arbitrary constitutionally pro- “An individual’s providing weighted that thus right tiffs’ contention is equally tected to cast an two, arrangement haphazard of a vote vote cannot be denied even along- majority electorate, three and four-member if of a of a State’s ‍​‌‌​​​​‌​​‌‌​​‌​‌‌​‌​‌‌‌‌​​‌‌​​‌‌​‌‌‌‌‌‌‌‌​​‌​​‌‍single violates of member districts apportionment side to fails the scheme principle man—one the of one up requirements basic the to measure of seen, is, im- vote, as we have Equal which Protection Clause.” plicit sense of in the constitutional Assembly, Lucas v. Colorado General field. equal protection in this of laws 1472, 1964, 736, 713, 84 377 U.S. S.Ct. agree to with We are constrained 1473, 632, L.Ed.2d 12 647. contention.” F.Supp. II. 229 326. Reyn- holding important under of our

The most inconsist Because olds, compelled other ency decide House not to in the Texas we are to be found per- plaintiffs given questions raised is the different to treatment Texas, taining al- heavily of populated Coun to the entire State Harris counties. single- though con- compelled reach ty, largest, split to we do feel into 23 regard opinion districts; populous with clusions later in all the member Al- metropolitan put specific areas.7 metropolitan are counties plaintiffs garding Attorneys districts other than cases multi-member 7. for the Bexar, Northern, Eastern, originally therefore Dallas they filed in the to the confine their evidence would indicated to the and Western Districts obtaining in those two coun- that, time situations the inherent court because of response they actions, the As- situation to this ties. incident to these limitations Attorney General, representing fully developing difficulty sistant would relating re- to their claims the evidence

719 Fourteenth though apportionment While approach the unequal prohibit not all Amendment restraint, in- does we have question with groups and treatment of individuals earlier, fulfill our we would dicated rough accommodations, it permit does responsibilities judicial if we were prohibit major discrimination.” does “invidious ignore development some Elections, Virginia Harper Legisla- v. Board points of consideration 1079, 1966, regard- 663, 383 86 16 S.Ct. U.S. ture, specifically considerations Therefore, L.Ed.2d ing 169. districts. multi-member gen- Legislature reconsiders when concept equal protection has “[T]he conformity redistrieting question, eral traditionally requiring viewed been IV, III, holding I, Parts with our persons treatment of uniform following points we believe standing to the relation same light givеn consideration should be governmental questioned action decisions and of recent challenged.” litiga- very possibility future real Sims, 565, Reynolds 84 v. 377 U.S. at tion. 1383, 12 L.Ed.2d When S.Ct. system pro ever State fashions dis multi-member While among unequal citi vides for treatment unconstitutional, per are not se tricts roughly zens who the same are within constitutionally they unas neither congeries circumstances, regard generally, v. See Whitcomb sailable. right,” political to the “fundamental 1858, 124, Chavis, 1971, 91 S.Ct. 403 U.S. vote, Hopkins, 1886, 118 Yick v.Wo Dorsey, 363; v. Fortson 29 L.Ed.2d 356, 1064, 220, or U.S. S.Ct. L.Ed. 498, 13 L.Ed. 379 U.S. 85 S.Ct. right Amendment associ the First Richardson, 1966, 401; 2d Burns v. ate “for the advancement of L.Ed.2d 376. U.S. S.Ct. goals,” Rhodes, supra, Williams apportionment underpinning justify required would un right Amendment is the Fourteenth cases equal on treatment of a “com basis an effective to the individual voter pelling interest,” But state NAACP v. general constructs vote within ton, supra. generally, Harper v. See system essentially majoritarian what is supra, Elections, Board of McDonald gen government. representative See Board of Election of Chi Commissioners supra; Reynolds Sims, erally Kirk v. 1404, 1968, 802, cago, 89 394 U.S. S.Ct. supra-, Preisler, v. patrick Swann v. 739; 22 L.Ed.2d Kramer v. Free Union mind, supra. Adams, a our critical To 1969, District, 621, School 395 89 U.S. right vote adjunct effective to the to an 583; 1886, Cipriano S.Ct. L.Ed.2d v. 23 right to First associ Amendment Houma, is the 1969, 701, 395 U.S. 89 S.Ct. majority politically, or in ate minority. 1897, whether particu 23 L.Ed.2d 647. This is 1968, Rhodes, See v. larly Williams true the state’s when distinctions 24; 23, 5, 89 21 L.Ed.2d 393 U.S. S.Ct. in these fundamental areas are drawn 1963, generally, Button, see v. NAACP Harper the on basis of wealth. See v. 405; U.S. 83 9 L.Ed.2d supra., 371 S.Ct. Elections, Board Carter v. Alabama, 1958, U.S. Dies, NAACP supra; Rodriguez see also v. San 1488; 78 S.Ct. 2 L.Ed.2d see also Independent District, Antonio F.Supp. School (three- Dies, Carter v. N.D.Tex.1970 (1971). Of discrim course judge court), F.Supp. po- inations within law that affect preliminary pre-trial State at out, say, con- in knoeked County Dallas and Tarrant 22, 1971, on ference December County, observed: prob- Bexar and that my personal entirely, ably “This is view but it would not be used elsewhere either, I would think difficulty that the Plaintiffs’ case that I so have some can personally necessity either be made in seeing or not be made in major metropolitan trying two or three of the these issues as to dif- eleven areas, anticipate, least, I metropolitan and would ferent areas.” districting if that multimember were municating 800,000; correspondingly affect over in Tarrant to litical candidates right try right County appeal to to to and the associ a must vote candidate Rhodes, supra. 600,000; politically, to more and even in the than ate Williams district, part a Therefore, that smallest multi-member if it can established apportionment Hidalgo County, hopeful particular candidate electoral 145,000 campaign must still people. his even an entire electoral mech take scheme or among anism, addition, when size of discriminates candidates campaign political groups territory increased to on the basis of single-member wealth, well over test must meet the ideal continuing district, metropolitan justify every in ine as it is order Texas, quality compelling district in rec- treatment is one multi-member ord establishes that methods of cam- state interest.8 paigning more become and campaigns different plaintiffs Some of this Court before expensive. a candidate When potential are candi- office-holders compact metropolitan in a area to a adjudi- dates. And of course when 1,300,000 145,000 to of from apportionment question cate the or when high-expense he must turn to meth- Legislature question, deliberates the odology, television, radio, media such Legislature the Court or the is also af- large newspaper spreads. If he were rights fecting candidacy and of running district, “ideal” political association. 74,600 people to indi- reach, record clearly It been established to, cates that a candidate would be able proceedings before to, costly employ and inclined less meth- simply more for a to run costs candidate campaigning ods of and avoid television and to communicate with his or her elec- expenses particular. ofAll this is not any torate than multi-member district say time, example, that television any single-member it does in district required adoption par- given roughly geographic similar districting processes. say, ticular It tois circumstances, specifically demographic however, that are there substantial cost given metropolitan area.9 The sheer campaign differences and communica- people one numbers of with whom must expenses necessary tion in or- vary communicate as a candidate enor- showing der to amake a can- tenable mously between multi-member sin- metropolitan didate a multi-member gle-member districts. While “ideal” district, that such costs in multi-mem- just district is one more than may operate ber districts to eliminate 74,600 people, a candidate for one candidates as- delimit eighteen Legislature seats to the County sociations that would campaign Dallas otherwise be able must 1,300,000;10 potential wage over campaigns, candidate more tenable in Bexar must on com- that such differences in cost between against 8. “To discriminate demographic voters or can- geographic or considera- depth didates on the tions, expenses basis of the campaigning and pocketbooks their . communicating . may . is to radically wade differ into unconstitutional waters.” among political without im- subdivisions Dies, F.Supp. Carter v. pinging rights guaran- at 1364 on constitutional (Thornberry, J., concurring). groups. teed to individuals and to How- ever, that observation does not answer the campaign Of course the costs of and problem constitutional here. vary substantially communication within geography alone; Texas on basis of campaign 10. One witness estimated that a single-member in costs a by district in for a seat in House Dallas an indi- Texas, example, diffеr, West for would running vidual candidate not on a slate perhaps substantially, salary from the $87,000; costs for would cost about campaign a similar Representative $4,800 per communication in a Texas single-member a year. in district an urban area County. variety such as Harris For a single-member by dis- for Texas House Texas and multi-member is treated result action in of the state law tially a manner differs substan- tricts that redistricting. from the treatment accorded running candidates for Texas House inequality in not this cam- Whether every metropolitan in other area paigning costs multi-member between Texas. re- That difference in treatment single-member and districts would be classifying in sults a and of candidates enough to invalidate multi-member all politi- their abilities to run and to form on districts First and Fourteenth wealth, according cal af- associations grounds, independent of Amendment fecting basically poor, unequally and any disparate among treatment similar supra, Elections, Harper Board of see areas, dowe not here. doubt We decide po- not established members of those inequalities to invidi- such amount Rhodes, parties, see litical Williams ous discrimination. The record before a supra. not emphasize that this We just adequate us is not in its facts differing groups with classification support proposition identi- that an demographic differing geographic and political fiable individual candidate or surroundings, very urban similar but every group city Texas has been dis- geo- living very similar electorates graphic against invidiously criminated on surroundings. demographic basis of wealth the use of multi-mem- general, the cities candidates from knowledge ber districts. To our very problems similar confront must Supreme Court has confronted not differing The treatment issues. issue of the eases in multi- which a County appears to result Harris single-member member and districts inequality the basis substantive on discussed, have been and we not reach do by the protection afforded wealth precise issue our case. rights of to the State’s electoral laws However, find in do voting.11 political association and redis anomalous bit of tricting question becomes: then that does raise a considerable [The compelling along Equal question Texas demonstrated the Has Protection treating candidates for state interest same theoretical lines have out that we regard political associations of Houston lined above with to candidates associations, way candi political different than it treats Whatever j ,of single-member dates and associations else be said about districts, metropolitan Texas?! areas of districts versus multi-member following argues they radically it is un State was clear that create people” equal it dealt expense problems when “wishes candidates argument metropolitan areas. The who to run its simply wish for office in areas with ring record very true. geogrаphic demo does similar points that graphic Every at several demonstrates multi characteristic^} over people their metropoli indicated Dallas member district Texas is single- whelming desire, every by poll, major metropolitan tan area. And districts; evidence was area of Texas has member been multi-member redistricting districted, placed board before save one. that Har The fact hearings, and County (Houston) ris several witnesses divided has been ignored single-member or denied committee either into means that time, running there At same candidate those wishes. in Harris through running might a par- does that Nor supra. fact a candidate be able joining ap- slate particular on a party to decrease his or her or by ticular expenses dif- the cost substantially to diminish pear the Democratic or Republican Party, running multi-member on between urban by slate, an established does ferentials single-member dis- and urban satisfy requirements not the the First of and Fourteenth tricts Houston. Amendments. See Wil Rhodes, supra ; liams v. Dies, Carter v. underlying the in the record same manner. an is no that There was evidence any redistricting of it the discussion board had before rationale Whitcomb people” the of Hous- districts in “wishes of multi-member Indiana: coherent argued cities have other area. The rea- State of Indiana that ton ofor city- city-wide assigned problems, difference of elect son for should might every representatives. wide between Houston Whatever treatment argued concerning metropolitan some still the various area is that other emanating justification sounding for atmospheric from factors that within Whitcomb, County differed from com- multi-member districts in Harris ing those metropolitan counties. offer other clear that Texas cannot apportionment must have some substantive same for Such sonars rationale its measurement its scientific basis for cities. The different treatment appears Court if data. to this that Houston refutes the Whitcomb rationale It threshold, at the elects to use “wishes of and Texas confronts State entirely metropolitan people” Equal the differently to treat areas Protection different question. justify unequally, simply then it Texas cannot obligation under its some to do a more different treatment Houston can- job investigating thorough real didates on the basis be- Whitcomb people” “wishes than done cause its internal was own inconsistencies by Redistricting its general Board. if treatment of Even Texas cities erases the atmospheric soundings were Whitcomb the ally eventu- rationale main- taining matter, adequate as a statistical multi-member districts in metro- politan very questionable it is whether the State areas. opinion polls could plete as a submit com- points Kilgarlin Texas also to the taking justification for constitu- case, three-judge which district tionally suspect apportioning action in Supreme court and then up- legislature. a state Hall v. St. See held a treatment for Houston that dif- Board, Helena Parish School E.D.La. fered every from that accorded to 1961, aff’d, 1962, 515, 368 U.S. 82 S.Ct. city. In the under discus- 529, approval 7 L.Ed.2d cited with Kilgarlin, sion in Houston was divided Assembly, Lucas Colorado General thirds, along congressional into district U.S. S.Ct. lines, metropolitan while all other areas And, course, any L.Ed.2d 632. ra- county-wide Texas were left as multi- tionale, including opinion polls, would Again, point districts. member out applied equally have to be to all areas that neither the court nor the district State, ig- not for one and followed Supreme allegedly Court discussed the nored in others. unequal po- treatment of candidates or argument groups may litical A that second advanced resulted differing from that State for treatment. In addi- anomalous treatment of tion, might Harris division into thirds what be termed not argument”: inequalities create expense the vast “Whitcomb v. Chavis single-member that a division multi-member into districts are consti- dis- Finally, tricts tutionally they creates. immune unless dilute we would note justification differing political racial or element electo- simply treatment point accepted rate. out that was We Whit- Kilgarlin was, comb courts in point no like Whit- discussed rela- justification, comb tionship accepted for an un- multi-member districts to derlying reason. candidates associations. district court ac- cepted addition, the distinction Court in Whit- State comb drew in was faced between dis- counties with with different tricting more people than one treatment million and those accorded to similar metropolitan areas; large million; than less one urban areas contended that of Indiana the sheer were treated in numbers and history support a prob can resulting Texas that would stand how confusion the in multi-mem compelling the state interest ably electorate when in the occur his all cities when that reached ber districts for representative slots of number complete tory suddenly about- for done a has different treatment a 15 necessitated largest metropolitan in area million-plus Lucas for the counties. face one See the point supra.12 addition, Assembly, In we would the State. v. Colorado General justi history Whitcomb, questionable do is a we out that Like the rationale accepted unequal in a state for treatment rationale fication not that the believe segrega explain compelling history active Kilgarlin a with a of rather in can always been present has incarna tion and a state which interest in this State “one-party” Mc Harris state. v. treatment for Bussie tion of different See Cir., [Septem Kiethan, County. have indicated earlier No. As we 71-2698 underlying County opinion, rationales in ber 1971]. the Dallas Kilgarlin fits the Texas multi-member all the elements of the tradition of might districting, single-member metropolitan for rationale areas yet very precisely rationales remains multi-member be thоse Dallas well against district, recent de wishes of Dallas condemned in constitutional might add, emphasize that are not citizens we while Houston cisions. We we indulging any speculation has further than sort of been subdivided even regarding plan for it garlin. in Kil rationales was the 1966 discussed whatsoever only conclude, political can as we subdivisions of Texas. We We noting earlier, simply simply did no credi cannot ra there is Texas by tionally consistently bility justify its dif left the rationale advanced Kilgarlin. unequal A that in ferent and of Hous State state treatment allegedly explicably “com an ton and candidates on abandons Houston only years grounds pelling precedent. state interest” five historical arguing hardly it from in other after can addition to factors it raise discussed point parts Reynolds apportion opinion, the dead at this see Priesler, process. Sims, supra; Kirkpatrick ment County supra, the fact that Harris has argues Finally, the that multi- though differently, it been treated even metropolitan member districts for areas falls historical context within the same long Texas. historical roots in any city, position in other makes given fact, simply Even does ternally inconsistent. explain given different treatment exception Houston. With the us, this Kilgarlin the record before plan, Given discussed has not earlier, Court must note that Texas Houston has treated under been interest, compelling aegis state established a the same “historical” relationship,”13 to city. nor even “rational at a loss to under- We are represent at them.” 377 U.S. of the most “One undesii-able features existing apportionment 12 L.Ed.2d 506. was S.Ct. scheme requirement that, given in counties meet if forced to 13. Even the State were more than one seat in either or both showing a “rational the lesser test Assembly, the houses of the General all unequal relationship” treat- between its legislators large must elected at candidates and ment of Houston county Thus, as whole. under policy, would and a state associations existing plan, re- each Denver voter was simply that Texas conclude be forced to quired eight vote senators and 17 dis- record. The so on this not done representatives. long were Ballots parate apportionment of Harris cumbersome, intelligent choice outright questionable or irrational renders among legisla- candidates for pro- seats justifications State has quite ture vastly was made difficult. No identi- continuing posed to sanction populous fiable within the constituencies campaign communication different resulted, counties and the residents of representatives among costs urban single Harper those areas had no v. Board member See electorates. urban dissenting). J., specifically (Harlan, Education Senate House elected 724 unequal justify disparate 700,000 treat- population and which has a every County plurality voting system, provi- other ment of Harris but no at-large running metropolitan in Texas. Because sion for area candidates unjustified geographical differentiation between from particular subdis- County every plaintiffs’ other metro- tricts. Harris case consisted ^The regard expense

politan primarily proof area to the with that blacks in Indi- running anapolis ghetto of communi- of cating for office and were concentrated electorate, area, they special the use that had interests issues, cities disproportionately multi-member districts certain that a subject ques- percentage legislators past to serious constitutional low in the years tion on the of the First Amend- ghetto, bases ten came from the and that ment, clause, high degree political the Due Process there par- was a Equal ty side Protection clause. other control over the nomination of candi- voting patterns leg- the candidate coin is that fact dates and the removed electorate much further islative of this On the basis delegation^ representative Supreme from its elected in Dallas evidence the Court concluded: example, Paso, or Fort Worth or El unprepared “We are hold that dis- than is office the electorate for the same by plur- trict-based elections decided are far from the Houston. While we ality vote are in ei- unconstitutional Jeffersonian ideal or the modes of Gre- single- ther simply or multi-member districts anonymity, democracy, cian this voter supporters of because the contracting this speck the voter to be a mere losing legislative candidates have no magnitudinous cosmos, in a takes assigned seats them.” founding us far con- from the fathers’ 160, 1878, 403 at 91 U.S. at S.Ct. 29 cept participation. of citizen Essentially, Supreme L.Ed.2d 363. plaintiffs Court determined that III. Whitcomb established that the fail- ghetto legisla- ure of black to have One contentions of the Dallas proportion population tive seats in to its plaintiffs of a multi the use solely political was the result of defeat County in the member district in Dallas polls at the rather than a built-in bias legislative redistricting plan operates to against Indeed, blacks. the Court held voting or out minimize strength cancel minority. j^Of of the black course, apportion it ghetto is settled law that “the fact that the number of employing multi-member legislators ment schemes residents who were was dis districts constitute an invidious proportion ghetto will if can that “de crimination shown satisfactorily prove [does invidi- not] signedly otherwise, or a multi-member ous discrimination absent evidence constituency scheme, apportionment un findings ghetto residents had particular der the circumstances of a opportunity less than did Mar- case, operate would can to minimize or participate ion residents to voting strength cel out political of racial processes and to elect voting popula legislators elements of the their сhoice.” tion.”'} Dorsey, Fortson v. U.S. at 379 403 U.S. L. S.Ct. at L.Ed.2d 401. In S.Ct. at (emphasis supplied). Ed.2d at 379 pronouncement its most recent concern ing constitutionality directing of multi-mem Before our attention districts, ber case, reaf to the evidence in the instant principle. important firmed The case of think it to detail the salient Chavis, supra, system Whitcomb v. involved features of the Texas electoral challenge impact upon constitutional to the multi the black minor their legislative ity. legislative state member Under the enacted (Indianapolis), Legislative Board, County, Redistrieting Marion Indiana essence, quirement. each candidate County comprises a multi-member Dallas candidacy, his in either population in excess must limit awith district particu County’s primary election, to a a final Thus, 1,300,000. multi- Dallas place place the approximately lar on ballot. Since three the is district member nothing absolutely in congressional requirement large dis- means as a times residence, is effect Texas, of of its ultimate the size terms twice in almost trict highlight it the racial element to where the Su- multi-member district the Furthermore, in multi-mem does exist. preme it in Whitcomb had before great- exists no Chavis, Texas there ber and it has a v. at-large provision run addi- for candidates In of fifteen states.14 er than that ning geographical particular sub- tion, system In- from plurality unlike the Thus, County “majority” re- it diana, districts. Dallas a Texas has strict entirely every possible one primary. Virtually un- each and quirement for in the eighteen representatives South, majority of the district’s outside the the known apartment complex. in the escaped to reside same requirement has consider- not Finally, we that unlike the State and note on both Fourteenth able criticism Indiana, grounds. of has rather colorful Texas a Fifteenth Amendment See history segregation. ex of racial of Election Com- Evers v. State Board ¡There covering S.D.Miss., F.Supp. instances, vir missioners, 1971, ist innumerable 327 gamut tually Thornton, 640; of rela v. entire human Boineau E.D.S.C. tionships, adopted 1964, F.Supp. in which the State has 235 175. Whatever policy status, ra and maintained an official of it is clear that constitutional against Negro.15 strengthen majority system cial discrimination to tends Indeed, Negro’s right majority’s ability submerge politi- even the to vote a participate minority proc and cal in a multi-member the electoral racial has ess not ma- remained untouched district. In combination with policy.16 Therefore, jority requirement, State’s it is not there exists in unlikely political repertoire “place” re- that Texas’ of multi-mem- Texas use Gomez, Tex.Civ.App.1967, limits) ; 14. In Re The Dallas multi-member dis- (holding greater population 424 S.W.2d 656 unconstitutional the fol- trict a than adoption prohibiting lowing ; (302,173) a of a statute states: Alaska Dela- by Negro person ; (548,104) ; (769,913) white a child a or of ware Ida- Hawaii ; Harvey Negro ; person) (713,008) ; (993,663) a child white ho Maine Mon- Morgan, Tex.Civ.App.1954, ; (694,409) ; (488,738) 272 v. S.W. tana New Nevada prohibiting (criminal provision Hampshirе (737,681) ; 2d 621 Dakota North any match, boxing, combat, sparring (617,761) ; (1,016,000) ; fistic New Mexico wrestling ; (949,723) contest or exhibition between Khode Island South Dakota any per person (666,257) ; (1,059,273) ; white race Vermont Utah Negro (444,732) ; (332,416). Wyoming son of the al) ; race held unconstitution Ex v. Cotton O’Connor Dallas change, Tex.Civ.App.1941, See, 1951, g., Holcombe, 153 S.W.2d 15. e. Beal v. 19 (plaintiff allege (city setting a held to cause of 266 F.2d 384 ordinance aside wrongfully public parks ex wife action when his was for the exclusive use of Ne passenger apart groes providing public cluded from a elevator set that all other compelled parks ride ele for whites and were for exclusive use of white Negroes). people unconstitutional) ; Tippins vator set aside for held v. State, 1920, 205, 86 Tex.Cr.K. 217 S.W. See, Herndon, g., (holding complaint charging a e. Nixon 380 linquency de allege U.S. 71 L.Ed. a S.Ct. need not child is (holding Texas unconstitutional a statute white or black under the Texas because participating prohibiting Negroes separate Code place Criminal Procedure election). primary party provided the Democratic for Ne confinement recently Indeed, gro delinquents) ; State, 1915, as 1966 Strauss payment required poll (up tax 76 Tex.Cr.K. 173 S.W. 663 striking holding constitutionality city down in order to vote. of a or requirement, making poll court found tax federal dinance it for white unlawful originally imposed in person any Negro that the tax had been in sexual have disenfranchising city purpose 1902 for the tercourse each other within districts, entirety slate, in the taken candidates will how ber many his- and of Texas candidates it slate who are laws will Texas electoral infringes unconstitutionally sympathetic problems tory, inter- Thus, community. voting rights mi- ests the black racial and clearly Negro dis- that the com- facts show all Texas cities that are norities in munity However, County participates in in Dallas we tricted as multi-member. primary the selection of the unnecessary so Democratic time to find it hold, recruiting process. candidates conclude that the Dallas hardly adequate, purposes itBut plaintiffs use also shown that the claiming participation, effective of a district Dallas multi-member say community the is con- that black protection County equal violates the respect sulted with the sole can- black in with the standards clause accordance placed didate the on slate. The DCRG proof in Whitcomb. enunciated requirement participation of effective fac In addition to the above by showing only can be answered that tors, plaintiffs shown the Dallas have ghetto, the interests of the black like only not that number of black com the areas, those of the white taken into are legisla munity residents who have been consideration in the formulation of the ghetto proportion tors in resi is not entire slate. It is clear from the evi- community dents, but also that the black in dence this case that such considera- effectively par has bеen excluded from essence, tion never In occurs. we find ticipation primary in the Democratic plaintiffs that the have shown that Ne- matter, process. selection Negroes As a factual groes County permitted in Dallas are County primarily in Dallas vote political process enter the in mean- party. for candidates of the Democratic ingful through only manner the benev- Furthermore, find that it is extreme majority. olence the dominant white ly representa difficult to either a secure participation If is to be labeled “effec- County delegation tive seat in Dallas the certainly tive” then it must a matter primary or the Democratic nomination right, grace. and not a function of without the endorsement of the Dallas Responsible Committee Government Finally, the record we think that evinc- (hereinafter DCRG). to as the referred recurring poor performance es a on the Furthermore, it been shown part County delegation of the Dallas con- by white candidates endorsed DCRG cerning representation in- black primary general in either a election in Repre- terests the Texas House of county-wide can win in a race without legislators sentatives. from Dallas appealing Negro to the vote. Essential County, county-wide, fight elected led ly, plaintiffs have shown that segregation legislation during DCRG, without the assistance of black Indeed, decade the 1950’s. the record community many leaders, decides how during reveals that the late 1950’s not Negroes, any, if it will slate in County one member of the Dallas dele- primary.17 gation Democratic then against DCRG segregation voted certain community informs some black leaders measures in the introduced Texas House. requests its decision and Moreover, those it has been that hos- shown Negro leaders select tility It candidate. community toward the black is still significant integral that the DCRG part makes County poli- of Dallas Negro respect many decision with recently how tics.18 As the DCRG Negro. Representatives. United addition, States v. Y State of these have Texas, W.D.Tex.1966, F.Supp. 234, only by been the two blacks ever slated DCRG, affirmed 384 U.S. 86 SCt. and the first was not until 1966. 16 L.Ed.2d 434. 18. The record Whitcomb showed that Era, Since the society Reconstruction there have Indiana is the millenial where race been plays part politics. two blacks from the Dallas no The Whitcomb County delegation following: to the Texas House of record showed the There were í stitutional. fvtends was tics county-wide port of the black didates Dallas appeal black multi-member district in Dallas plaintiffs of Dallas dates, candidates Legislature the standards laid member could cordingly, in white relying upon racial community. seriously represent we think County organization that dominates the to defeat black favored who had the district Dallas We conclude that County’s dilute or cancel we elected the best Democratic hold shown, precincts relies Whitсomb IV. community. So down Negro minority. on highly the use of multi interests of Dallas’ upon overwhelming sup- such accordance to defeat campaign such a racial unlikely case, out the vote primary the Dallas platform that a uncon candi- long can- tac- Ac times laws. identifiable “Throughout our securing equal been question differences ment and it of a distinct class is group crimination on class for as written or as guarantees of ^[*] ple on the solely because of their their race and some reasonable static, same violated. define whose institutions required exists within a But very not directed doctrine ^[*] different treatment not further protection. and from time to time nature ‍​‌‌​​​​‌​​‌‌​​‌​‌‌​‌​‌‌‌‌​​‌‌​​‌‌​‌‌‌‌‌‌‌‌​​‌​​‌‍community prejudices are fact. due to a ‘two-class’ color groups ^[*] The the Constitution applied, treatment under shown equality.’ odious have When history aid of the courts groups Fourteenth -» solely classification, community which have are founded Whether ancestry community single defined demonstrated, -X- which need against differences free existence out Amend- such theory easily ^[*] peo based other norm up- laws, that ais dis- f is, upon be- —that based differences Supreme Court has United States (The Negro.” Hernan- and tween ‘white’ Chícanos, long recognized aswell Texas, 475, 478 dez at 347 U.S. v. require protective Blacks, interven- 670, 667, (1954), at 98 L.Ed. 74 S.Ct. tion of the Courts Federal 866. “The of Texas would have us State recognizable of a Mexiean- existence hold there are two classes— minority further evidenced American Negro white and the contem- —within by of Courts recent decisions Federal plation of Fourteenth Amendment. throughout In Pablo Puente State. sup- not of do decisions this Court City Crystal Texas, City, DR- v. of No. port this view.4 (April 3, 1970), 70-CA-4 the Court Raich, 33 [36 See Truax 239 v. U.S. ownership property found that the real 7, ; S.Ct. L.Ed. Takahashi v. 131] 60 requirement incorporated in the Charter Commission, Fish and Game 334 U.S. 1138, ; 1478] 92 [68 410 S.Ct. L.Ed. city Crystal City for candidates Hirabayashi States, United 320 Cf. v. discriminatory invidiously office was 1375, 81, U.S. 100 S.Ct. L.Ed. [63 87 against Mexican-American Plaintiffs : 1774] ‘Distinctions between citizens Democrats) public private slating (at incidents discrimi- least chairmen, precinct Indianapolis nation in the late 19th done at convention party early centuries, white; the success of but the record black and 20th both upon invariably depends 1926; almost shows none after Indiana has had nominees typical- ticket; rights blacks a civil law since and enacted the success Democratic, ly rights 1969; a substantial form a new law in vote civil elec- Party’s strength; sys- two-party part strong Democratic tion results show discipline party tem, political party predominance over along votes cast general lines, elec- 1968 lines rather than racial both race is shown on ghetto party elected elsewhere; three blacks were area tions which nomina- county-wide elections, Republican primary fin- but ticket at where tions made oppo- party Democratic hehind white ished well those who have been “slated” ghetto. organization invariably successful; in the were nents 728 Delgado (1931); L.Ed. and hence unconsti- S.Ct. and their class was District, Bastrop Independent School

tutional. (W.D.Tex. 1948); Civ. No. 388 June Concerning Corpus Inde- Christi In- Hernandez v. Driscoll Consolidated dependent pendent in Nueces Coun- District School District, 2 Race Rel. School ty, Texas was Texas, ruled that a Court January 1957). (S.D.Tex. L.Rev. segregating students Mexican-American (1971): Cisneros, 49 Tex.L.Rev. 337 readily (which to constitute were found supra, 607, 608, Judge said: Seals ethnic-minority group or identifiable class) public on the schools basis in the “. . . It is clear this [I] origin. color, race, Cis- or national people these for whom we have Independent Corpus neros Christi used the word Mexiean-Americans (S.D. District, F.Supp. School class, segment group, describe their 1970). Tex. population, of our are an identifiable States, minority Appeals ethnic in the United for the Fifth The Court especially support- in the that the record so Southwest Circuit has held allegations dis- . . . there had been Texas This is [and] ed identify surprising; can notice crimination the selection Grand characteristics, physical their Jury County, that in- their in El Texas Paso language, predominant religion, petitioner their dicated the Mexican-American and, course, culture, failed their distinct had and that the Spanish recognize right their if Mexican-Amer- surnames. And there mind, protest were doubt court’s ican exclusion this defendants notice, under-representation of Mexiean-Ameri- court could take which Jury congressional enactments, composition does, of of Grand cans government Jury Beto commissions and Petit Muniz v. studies and venires. (5th problem.” on 1970) 697. Cir. 434 F.2d this F.Supp. in area

The most recent decision 324 at 607-608. brought by Mexican- resulted from a suit educational, long-standing Because of Edgewood in the American Plaintiffs social, legal, economic, and other Independent District in Bexar School restrictions, widespread prevalent and Texas, County, a district of near-total preju- customs, traditions, biases and Mexican-American enrollment. The dices, jure de and some of a so-called financing public found the Texas school character, de some of a so-called facto grounds on structure unconstitutional population of the Mexican-American quality of a student’s education Texas, 20%, has which amounts about j should relate to of the State the wealth from, historically and suffered continues/ dis as a and not to an individual whole from, and effects suffer the results property Rod trict’s real tax reserve. treat- of invidious discrimination and iguez Independent Antonio v. San School employ- education, r ment in fields (W.D.Tex., 1971) F.Supp. 337 District ment, politics oth- economics,health, and scholarly Moreover, in 280. as stated ers. by Birnberg note in the Uni Gerald M. recent Texas Fed- of a words versity Review, Texas Law 49 decision, eral Court (1971), L.Rev. “The conclu 338 in the “Mexican-American students sion that of Mexiean ethnic isolation cognizable ethnic are a public State of Texas unlaw Americans schools is and, hence, many group them- avail surprising, ful should not principle be since protections un- afforded long selves been established and Amendment generally der the Fourteenth Texas law.” See Jesus Salva the Mexican-Amer- under Title and VI tierra of Del Rio Inde v. Inhabitants pendent Rio area have District, ican students in the Del 790 School 33 S.W.2d years, subjected, to un- dismissed, over the (Tex.Civ.App.1930), appeal been w. equal respect the ed- j., treatment with denied, o. and cert. 52 284 U.S. (E.D.Tex. July F.Supp. opportunities them afforded ucational 1971)18a thus, part are, a so-called de and jure system upon based dual school Judge Chief Brown has said that separation eth- of different of students problem of racial “[I]n diserimina- Texas, tion, origins.” much, statistics often tell and nic States courts United 18a. In the ily City of Detroit and blacks : F.Supp. Roth’s the different ernmental of unrelated condition which school While would be were governmental present that can including tenance of ‘harmonious’ ous. of a residence present and affair. For openly separate of main, opportunities throughout the ernmental done, both firms, combined, pattern izations, all which have “Governmental real estate area crimination, standing. “The restricted part economic practices city generally dential throughout e., part, residential substantial, levels, community failure to act and are in the racially agencies linked to that of these other opinion in government it substituted, and Mexican-Americans The conditions ** City it the result authorities, suburbs. advised segregation defendants with can effect such as following language responsible and distinct areas within factors establish and to divided federal, choice of black the school with those Black units. When we officers or of Detroit development and do restrict associations and be the Detroit * many years and units. said both action of black agencies segregation, (E.D.Mich.1971), —as is a have a upon and residential larger customs said actions The Bradley Milliken, pervasive loaning While the exists. citizens are located economically generally state and is that all of respectively, both unfair to public relatively infrequent advocated within the we should not that policies for the racial lines. the Perhaps past metropolitan have created continue. authorities, people know, private persons and inaction as what other continuing institutions city of this agencies neighborhoods, private FHA and the actions complexion And we note maintain the and of metropolitan persons played a collection racially segregation pursued racial local, responsible community charge the segregated and the may the is, brokerage the most speak harmoni- bе found city * * private, for the housing pattern present organ- Bexar choice main- Judge them, state, read- Resi- some view have area gov- gov- long are, and and dis- VA un- or of of * sociate segregation. the actions of separate real it de unfortunate including, nents. We need not minimize the effect one to share.” make no difference whether we uge. basis, played needs correction. public sense, if of governmental and it regation We find these tests to have been met in this case. and maintenance of tion tial tion movement and tive, logically, causes “As we the schools. both to a exists. public but state and including administration, have created or action outlined eral and pattern ethnic segregation. corresponding tween residential composition 2. This action or these actions must 1. The ^[*****] is that of the the schools in remedy patterns estate agencies, just a A finding There groups actions for if racial schools is an school jure together. place —to undeniably current condition of the case before us is both sev- from the assay Court, they fault substantial as there comparative. of school board a State, actions rulings firms, —which is that we cannot deal with or de facto. Our the racial condition local of de observe that of confinement and a ref- in It officers and course, segregation of We it seems to effect on the residential or blame must be and enough loaning must question. community is, federal, aggravated patterns governmental actions, through In recognize larger group in the schools, of the United States jure past, usually, have been the Court principles evil, segregation in segregated are: lead to school role in housing an interaction be- the black the most realistic have taken some ghetto which we believe blame for institutions and composition segregation, state and local have tended to then actions, on a no-fault and the establishment agencies, us, so there is a blacks, its officers as a purpose segregation segregation the school is promoting should principal it patterns, essential believes, residen- and as- classify at popula- compo- whole, should causa- every- found racial objec- once seg- like and our be suggested States, It listen.” Alabama been that v. United (5 1962). F.2d because Chícanos half Cir. constitute about they population County, of Bexar County, Bexar Texas contains areas deprived politically cannot be ethnic of substantial Mexican-American concen- minority. suggestion miscon Such clearly geo- tration are defined which meaning ceives of the word “minori graphically and which have the charac- ty”. In the context of Constitu of teristics of slum common areas because guarantee protection, equal tion’s of relating family in- '/adverse conditions “minority” merely does nu not hаve come, housing, attainment educational denotation; rather refers merical particularly and other matters. This is disadvantag specially an identifiable true of the area known as West group. ed That Mexican-Americans City Side in the of Antonio. San group Texas are such a is well-estab predomi- The record reveals regard With to Mexican-Ameri lished. nantly section of Mexican-American San children, recently can held one (50% greater) Antonio is included that: contiguous tracts. within 28 census react to or are “these students affected Barrio, area, this also known as Anglo-orient- by given stimulus—the average in the most resident lives program ed educational such seriously deprived straitened and cir- In- former Rio maintained dependent Del (“Chi- cumstances. Mexican-Americans a simi- District —in School , canos”) up popula- make 78.54% and, predictable ^ lar manner Barrio, tion which 23.78% recognized expert, opinion of a County’s population Bexar total entirely on reaction is based almost 830,460. in- The Barrio which, inci- common characteristics housing cludes units 47.8% dentally, com- be traced their County $5,000. Bexar than valued at less ancestry.” mon distinct United Only $50,- at the units valued 00.67% Texas, supra. States v. are more located area. ap- average Consequently, in addition home cost in Bexar palling Barrio, poverty its con- $13,500, conditions of av- whereas erage comitants, Tex- $8,807.14. most Chicano children in cost These census as face an often insurmountable cultural tracts total also contain 58.5% they dwelling lacking plumb- disorientation. The fact or all units some ing units, average in a a dialect reared sub-culture which contract rental language pro- Spanish primary opposed is the $51.86, for the $86.00 permanent impediments county to their vides aas whole. advancement educational vocational figures The 1960 also census disclose problems. traumatic creates other the Barrio at that time included “Report A Com- the United States County population the Bexar 65.43% Rights, March, mission on Civil 1970” who school and had never attended \' 66) (Plaintiff’s exhibit, BI-12, p. states graduates. county’s college of 5.26% that: Also, of the Bexar it embraced 73.04% Southwest, more- County in the “It common with median incomes is families only over, who find Mexican-Americans $5,000, to under as with contrasted home, speak Spanish County with in the Bexar families of 2.18% occasions, friends, and $25,000. on Al- social with median income over among though up Mexican-Ameri- work made laborers Barrio 29.55% cans; they English force, a sec- county’s use as labor 46.33% Many language unemployed when County necessary. ond of Bexar work enough fig- fa- (The have Mexican-Americans census force there. 1970 lived get along, English miliarity to regard with not available at in this ures were difficulty than the av- trial.) but have more the time understanding language impedi-1 erage layman This cultural and in Court- conjoined poll legal ment, proceedings tax and matters.” with room and registration most restrictive voter “Summary” Report (Plain- this In procedures operated in the nation 16) p. BI-13, Com- exhibit tiff’s effectively deny to Mexican-Americans Mexican-Ameri- mission that concludes political processes in Texas access to the language in the have a cans Southwest longer formal- even than Blacks were seriously disability | interferes with that —* ly by primary. denied access the white agencies indi- their relations with responsible for the administra- viduals securing County, In Bexar justice. in an in- tion of This results Party for Democratic nomination ability police to communicate offi- Representatives Texas House of has been officers, cers, parole probation and their Republi- election no tantamount since attorneys in mat- own civil and criminal from can been elected to said House legal proceedings. ters, Cer- and in other County present. Bexar from to the language tainly, a raison this barrier is County, presently no Bexar there is label: d’tre for Mexican-Americans by process the Demo- formalized which Minority”. “The Invisible Party party in cratic candidates slates aspect primary is no of human elections for Texas House There general endeavor, Representatives. and of American ability particular, life Antonio which the West of San tends Side / read, overwhelmingly write and understand a Mexican-Amer- vote for language against important running more than ican is candidates when politics.^It surprise, Anglo-Americans then, party primary should come as no to dis participa special elections, split cover Mexican-American when Mexican- political against other, process tion in of Bexar run each Americans County markedly course, Party support nomi- Of the Democratic deficient!/* many background types regardless there are aliena nee ethnic elections. n ‘sThe tion, by participation general mere lack record shows particular group Anglo-Americans political process tend to vote ' against overwhelmingly action. does necessitate Mexican-Amer- corrective just appro- except general in a elec- as Courts have drawn iean candidates (But, priate necessary they Dem- from the for the inferences tion when tend vote jury Party absence of he whoever Mexican-Americans nominee ocratic venires, although pro- supra, Muniz, smaller Hernandez a somewhat be Anglo-Ameri- they regarding political partici- they portion so must than vote can candidates^* pation^ po- There can no doubt that lack of conducting cam- electoral The cost participation by litical Texas Chícanos paigns countywide in Bexar races ^ incompatibility is affected a cultural County factor so excessive that which has been fostered a deficient recruitment inhibited the alone has system. ig- educational If this court Mexican-Amer- election of nomination or impact reason nores the for the minimal House of for the Texas ican candidates on Mexican-Americans Bexar Reports ex- Representatives. election legislative elections, prove “it will Anglo-American penses candi- reveal justice both blind and deaf”. Sims spent Representative Baggett, two F.Supp. supra, at 109. dates candi- supra. much Chicano Ames, also to three See times Sims Equal F.Supp. Smith, clause of Protection of 19. See Breare v. 321 1100 said (S.D.Tex.1971). insofar as Amendment also Fourteenth See Garza v Pres- (W.D.Tex. illiterate Smith, F.Supp. to forbade assistance articles ton 131 320 granting to 1971) such assistance while in declared un- voters which the Court physically 5.05(15) blind voters. and disabled and constitutional Articles 8.13 as violative of Texas Election Code 732 dates, important and that contributions were heav- tile fact that race is still ily Anglo County in in favor candidates. issue Bexar and that because it, of Mexican-Americans are frozen into \¡ Only four residents the Barrio permanent political destined minorities Repre- have run for Texas House for constant at the hands of the defeat 1880, in

sentatives since one 1900 and controlling majorities. the remainder 1960. this num- since Of Kramer, 626, supra, 395 U.S. at 89 ber, Chícanos, Black, two were one a 1889, 583, S.Ct. at 23 L.Ed.2d the Court Anglo-American. the other an And since held that: 1880 a total of five Mexiean-Amer- Legisla- in Texas have served t/icans “Any unjustified discrimination de- County. ture from Bexar termining may participate po- who litical or in affairs the selection of Anglo An member of public officials, legiti- undermines Representatives House of Bexar macy government.” representative County identify piece to was unable legislation by any sponsored member “grand Just as the Court has invalidated County delegation Bexar at clauses”, Wilson, father Lane v. 307 U.S. Legislature last session of the to relieve 275, 872, at L.Ed. 268 59 83 1281 S.Ct. remedy extant the adverse conditions (1939), ghost disapproved it so “the course, in the West Court Side. Of past malapportionment”, Burns, infra Whitcomb, supra, stated: 1297, L. 384 at at 16 U.S. 86 S.Ct. §3, minority ([Likewise, Ed.2d 376. when “Nor does the number fact group insidiously disadvantaged by ghetto legisla- residents who were past poverty, the concomitance of ghetto proportion tors was continuing discrimination, a restrictive population satisfactorily prove invidi- system, peculiar district electoral ous discrimination absent evidence ing scheme,20 gives oppor “less which findings ghetto residents tunity” successfully, participate opportunity had less than did other apportionment Court such an will void partici- Marion residents 57, Hadley, supra, at 90 S. Cf. schemé?> pate political process and to elect generally Ct. 25 L.Ed.2d See 794 legislators (Empha- their choice.” States, 285, 395 Gaston v. United U.S. added.) sis (1969). 1720, L.Ed.2d 309 89 23 S.Ct. right recognized Naturally, fully accepts It Jus- must be by abridged easily evaluation, mak tice as White’s but note that vоte be facts, ing excessively correctly as he did difficult indicate that exercise such entirely. conjunction by prohibiting others, taken in its exercise would persuasive. “sophisticated suggested forbids It is not Constitution single-minded right of discrimi modes minorities have a to well constitutional Lightfoot, race, 364 U. elect their candidates of own but nation”. Gomillion minority 342, 127, L. 339 at at elections which candidates S. S.Ct. Adams, Terry (1960). provide have run often Ed. 110 best evidence Cf. 97 L.Ed. determine whether votes are cast on 73 S.Ct. U.S. (1953). racial lines. All these factors confirm overlay designated, tion,” delivered

20. The of a the Presidential address but not Meeting geographically based, place system, of the Southern which at the Annual generally politically held New it is Association conceded enables Political Science majorities gang up Orleans, political- 3 and active La. on November on ly Roy Young, by eliminating 1967; Place E. “The inactive minorities single-shot voting Elections,” published possible System in the usual University Affairs, large system majority Public the Institute of run-off —on Texas, 1965, requirement Austin, Texas, Series in the multi-member districts. Speech Edsall, See Preston W. “State No. 62. Legislatures Legislative Representa- discrimination, of the Mexican-Ameri principal distinctions be register do and in minority, blacks, cans not now vote and the tween the Dallas overwhelming minority, We are not at Mexican- Antonio San numbers^- surprised first, all result. Nor do Americans, at that we areas: are in two constitutionally respond, feel able are of Antonio San /Mexican-Americans State, does the Mexican-Ameri plurality in in their numerical terms of political cans should organization to the tool of percentage be left of of Bexar remedy second, in order their County, the Mexican-Amer and register electoral in San Antonio and to situation ieans of and vote San Antonio exert more in very approximately influence multi-member rates, low 30%. voting County. in argued elections Bexar It has that the facts of nu been patterns language difficulties, voting par and the majority merical of low already which we ticipation have concluded were the Mexican- indicate that action, caused or abetted State have Americans are not constitu entitled process organization very made the of relief, they do ex tional “could” since tremely onerous, if not illusive. in district elections well multi-member ¡ 3 (cid:127)in County. reject argu Bexar those We ¿There requirement no constitutional ments. go through that the Mexican-Americans organization “minority”, of speaks decades Whitcomb heart- of a preceded Rights ache that the black numerical Civil we see no need to limit that to minority. resulting “minority” fact, movement increase In has tradi- tionally Rights participation political black proc- been used in Civil cases contrary, group people, while denote State a racial or of /Quite social esses^ unquestionаbly action Therefore, percentage. not caused contrib- a numerical substantially uted par- to the low voter Antonio Mexican-Americans San ticipation of simply are not Mexican-Americans read out of Whitcomb be- Antonio, remedying San may predominate cause their State ac- numbers appropriate tion is both Anglos. They over constitution- those still fall ally compelled^ The fact within the that the State apportionment rationales Whitcomb. here, action at issue addition, very we draw different County, of Bexar did not “cause” the low conclusions than does the from the participation questionable argu- voter register fact that the Mexican-Americans ment and an irrelevant one. the continued and [Because and vote in such low numbers. The continuing discrimina- argue uses those that the facts jétate against tions Mexican-Americans political need '/Mexican-Americans or County, they effectively Bexar re- ganization, redistricting. We use political processes moved from the those facts in the context the other Bexar in violation of all the Whitcomb regarding facts the Mexican-Americans standards, their whatever absolute num- previously of San Antonio County! bers total in that discussed. we conclude that the rea ^And among participation son voter Single-member representation the Mexican-Americans is so low is that constitutionally compelled Bexar is as voting patterns their were established single-member representation precisely under the same sort of Dallas, discrim Whitcomb, on the basis al inatory State though that we actions have al for somewhat different rationale ready found both relevant and condem and under somewhat different circum natory regard Single-member Dallas stances. BlacksTj The fact that some of those laws have obviously San Antonio will benefit changed , past years been remedying within few past effects or months present does not against answer offset discrimination Mexican-1 patterns fact voting voting remain percentages Americans. If the they firm.-/Because were denied access remain at in the Mexican-American 30% through processes years to the areas, single-mem- for a short while after employed by the in to the method State districting, the Mexican- least at ber one-man, prin- adhering representation to the one-vote have Americans will Essentially, Republicans ciple. in Texas House. in the their interests 110,000 opinion San Antonio claim that those Moreover, that are also we effectively other combined with South participate bodies opportunity to greatly in 21 should counties Senatorial District political process en- will in the voting from the southern courage percentages in have been extricated County. portion of Bexar of Bexar. areas t/Mexican-Ameriean to conclude that Again, This Court is unable not be under we are preference specifically there is some saying, constitutional indeed stood implying shaped a disavow, any that a district like horseshoe intention doughnut. opposed shaped to one like a “any group interests with distinctive Indeed, a there little dictate seems legislative represented halls must be choice done and what between what was enough command if it is numerous concerning could have been the sen- done represents a ma at one least seat County. The atorial districts Bexar sufficiently jority living in an area rela- has that choice is State shown its single compact a member to constitute tively redis- consistent with traditional Whitcomb, supra, 403 U.S. district.” tricting All three of the sena- criteria. 1875, L.Ed.2d S.Ct. at representing torial districts portion at least political, interest No racial or prin- County of Bexar follow right group to be constitutional addition, ciples contiguity. these In ¡Successful activities. relatively compact, three districts are may design sys- not State redistricting the fact that another deprives groups tem that such of a rea- might districts which have created sonable to be chance successful. IvHowever, arguably compact suf- is not were more justify judicial denunciation ficient V. existing Accordingly, plan. Republi- Antonio conclude the San Republicans The San Antonio prove an unlawful cans have failed to assert that the Districts in State Senate respect gerrymander sena- to the with ger County unlawfully Bexar been County, Texas. torial Bexar rymandered. Specifically, they argue legislative redistricting board designed 19, 21, Senatorial Districts VI. purpose minimizing 26 for the County plaintiff con- The Harris Republicans’ political clout. We are un redistricting board tends that the state agree able to with this contention. County’s Harris senatorial has districted County In Bexar the three state sen- way that the effect is seats in such a posts presently atorial filled two County’s black minimize or dilute Harris Anglos and one Mexican-Ameriean. Un- County addition, the Harris vote. redistricting plan, der the board’s Sena- alleges plaintiff the intent of approximate- torial District 21 combines redistricting to dilute board was ly 110,000 people por- from the northern black vote. approximately tion of Bexar 250,000 course, a sin people north, whenever Of rural counties districting west, gle-member is em County. scheme south Bexar area, metropolitan it is essen ployed demonstrated that a division was necessary made. order divisions tial that some achieve numerical equality con unclear cases are various senatorial dis- cerning question Republi- tricts. of whether While Antonio San redistricting challenge cans do scheme or quest of a State’s effect redistricting body population equality among that con intent of the the vari- in- districts, they object ous Amendment senatorial do the Fourteenth trols quiries judicial gen- Furthermore, оf a tribunal. See we cannot read erally, Thompson, legislative Palmer v. 403 invidious racial intent redistricting 29 L.Ed.2d 438. U.S. S.Ct. board into the fact compelled board composi- We feel to conclude from Whit- have taken the racial is, comb that tion of the effect—that established various districts into consid- impact drawing plan. eration in appears effect of a lesser on black voters It majority that, under with an- a one scheme as contrasted this Court in order to invali- not other —is not sufficient alone to dilute the votes of a racial minor- districting ity required by under date a scheme the Fourteenth Amendment, Chavis, Fourteenth And intent —if see Amendment. Whitcomb v. established, supra; by only Dorsey, supra; intent one means Fortson v. Burns very specific usually Richardson, charged purpose supra, body diffi- —is demonstrate; drawing with racial are cult to motives district lines is within its rights rarely nowadays. openly stated Of to have before it information on course, may composition. in racial a court draw differences » degree district- between the effects of a preponderating evidence, Absent ing scheme, or a intent court infer only plaintiff Court can concludethat the particular from effects within a com County in the Harris case has failed to geries of But historical circumstance. County’s single-mem- show that Harris a such situation whether court uses ber operate senatorial districts either “effect” or “intent” as the basis designed were to dilute the vote of that judicial inquiry, we believe that a court county’s minority. black find, concluding must before that a sin- gle-member districting scheme violates VII. Amendment, the Fourteenth ef- that the substantial, egre- fects are indeed if not This concludes that gious. presented From the record to this apportionment plan for the of Tex majority simply Court a con- unable to unjustifiably as is unconstitutional as clude that even the effect of the chal- man, remote from the ideal one of “one lenged redistricting scheme in Harris vote”, and that the multi-member dis County will be to dilute the votes tricting Rep schemes for the House of minority. black composition The racial they specifically resentatives as relate of the various Houston has to Dallas and to Bexar are Counties changed very little, Indeed, if at all. they unconstitutional in that dilute Black, Jordan, State Senator Barbara panely votes of The racial minorities. testified that she would not concede that compelled ques does not feel reach the she could not win the new sena- alleged “political” tion dilution of torial district because she believed that apportionment elements in the of the appeal she could to a broad base by Representatives as raised House addition, remedy voters. leged the al- Republicans of Dallas and Bexar plan, racial effect of the board’s ground Counties on the that the interests open- have beеn offered one by Repub of and the relief asked ly “gerrymanders” (in the historical automatically licans subsumed word) County sense of that Harris so as granted relief to Dallas and Bexar Coun voting clout, pro- to maximize black ties behalf of the black and Mexican- posal strictly by forbidden the Four- American minorities. The Court Amendment, Wright teenth see v. Rocke- unanimously opinion that the Sen feller, 1964, 376 U.S. 84 S.Ct. districting ate scheme for Bexar 512, (Douglas, J., 11 L.Ed.2d dissent- unconstitutionally does dilute ing), plan which, accept- and another if party. any political votes of faction respects, able in other would increase majority conclude that is unable to percentage black in one district County votes of Harris black only percentage points. five unconstitutionally been diluted. Court and Federal which it egregiously finds to be out of Judiciary legis have entered the field of line requirements. with constitutional only apportionment lative hesitation Rockefeller, See supra. Wells v. This re- quirement defects. correct constitutional of immediate action would essentially leg Apportionment remains primarily arise context racial function, nei islative and this Court feels inequalities or hinderanees. See Connor required nor inclined to assume Johnson, supra; Amos, supra. Sims v. ther Although legislative duty point. at this This Court has concluded that legislative redis we conclude that particularly compelling constitutional in tricting plan fashioned the five-mem presented firmities have themselves in redistricting is constitutional ber board Dallas and Counties, Bexar founded in ly infirm, our commitment to federalism the context of inequalities racial and'/ legis such that remit to the State is hinderanees. Because the use of multi per processes opportunity lative the to districting member in Dallas and Bexar redistricting. functions form Therefore, is the holdings basis of our of unconsti redistricting the matter of tutionality and because a Federal Court the the State in accordance with constitu engaged itself in apportionment the proc guidelines opin explicated in this tional give preference ess single-mem must legislative ion is rendered for considera districting, ber Johnson, Connor v. su Reynolds v. tion and resolution. See pra, hereby this adopts single- Court Sims, appro supra.21 But it is while districting member pended plans ap that are priate for the Federal Courts enter pnd opinion to this as Exhibits A they apportionment restraint, with area plans B. These adopted were appropriately maintain a cannot Job-like among presented by those to the Court unswerving patience unquestioning and six (with different adjust sources some legislative processes in the with the by Court) solely ments on the basis realm Federal Constitution.22 the least variance.23 We regular Legis next session of the Texas unanimously opinion they that January lature will convene in of 1973. fulfill requirements constitutional legislature pursuant If the has not acted Rеynolds. of Whitcomb and of guidelines 1, by July to constitutional by compelled this Court will feel opin This Court is also of the Fourteenth Amendment and ion equities one of transition evolving apportionment to redis law from multi-member districts Dallas Amos, trict the State itself. See Sims v. single-member and Bexar Counties to supra. requires that, districts for the election Representatives the Texas House of It is law in area established this during year to be held no may temporarily that a act either Court required candidate shall be reside permanently and that it act to single-member he district seeks to remedy only specific sections of a State apportionment plan. See represent; enforcement of re Reynolds ‍​‌‌​​​​‌​​‌‌​​‌​‌‌​‌​‌‌‌‌​​‌‌​​‌‌​‌‌‌‌‌‌‌‌​​‌​​‌‍and the quirement of the Texas Constitution Sims, supra; Chavis, so su Whitcomb v. stating enjoined year of will be for the pra. particular, we conclude that this however, must, 1972. Such immediately candidates on Court should act those reside Dallas or Bexar apportionment plan Counties. areas of a State proximation Reyn- that a much closer We should note that this has plan olds and Swann can be achieved. been offered a substitute one of plaintiffs total which results Hill, Kilgarlin supra; 22. See Smith v. 3.5%, deviation for the State of less than Redistricting Craddick, supra; Mauzy v. cutting only county while Al- lines. Board, supra. plan may though be defective (Dal- ways, 23. The total deviation of Exhibit A which we have neither studied con- clusively opin- las) (1048) ; the total deviation nor do we reach this is 1.4% clearly (Bexar) ion, proposed plan (1402). Exhibit B is indicates 1.9% primary, general ORDER Counties in the 1972 special However, elections. said Ar- opinion Pursuant to the entered this ticle Section in full 7 shall remain day styled in the above and numbered force and as concerns effect those candi- cause, following mandate shall issue seeking Representative dates for State forthwith. Representative District election in hereby It ordered that unless reappor- specifically has not been which Legislature of the State of Texas on under tioned this Order. July 1, 1973, adopted before the Secre- It further ordered legislative reapportion districts adopt tary of the State of of State within the State in accordance with procedures implement and all guidelines constitutional out in this set or- necessary properly effectuate opinion reapportion this Court will so in conformance of this Court ders State of Texas. Code, Opinion, Texas Election the State and the Constitution counties It is further ordered that the Texas. reappor- hereby of Dallas and Bexar are any and further orders The Court single-member representative tioned into parties and requested appended relief all conformance with granted specially in this Order B, respectively. A and Exhibits things hereby in denied. all that Article It is further ordered judg- that this further ordered It is of the State Section of the Constitution ap- considerеd, purposes of for one-year ment be Texas, pertains to the judgment otherwise, a final peal requirement for State residence district stay proceed- case, no and that hereby suspended in ings this Representatives is granted appeal pending will House those candidates Court. Bexar Representatives from Dallas and following illustrations] [See GOLDBERG, Judge (concur- plaintiffs (1) Circuit The contend: That ring specially): State Senatorial Harris Districts County, by Legislative Re- created I concur in the result of Section Four districting were inten- Board (4) Opinion. of the tionally designed by the Board to can- voting cel, or minimize dilute JUSTICE, Judge (concurring District strength County; or, of blacks in Harris part dissenting part). alternatively, (2) the effect opinion I concur in the court’s all creation of new State Senatorial such respects, exception with the refusal cancel, by the Districts Board was grant brought relief in the action strength voting minimize the dilute or the Houston Division of the Southern such blacks. District of certain voters black County metropolitan coun- County, challenging is a Harris Harris the Re- City apportionment ty of Houston. dominated Plan of the Texas Senate experts, Richard applies Professor County. political as that plan Two Harris University pop- Murray District 11 black Houston contains W. 37% majority Braeewell, practicing prevailing Searcy ulation. white and Mr. attorney lobbyist, predominantly registered testi- white collar middle voting However, history upper class middle class. fied to the voting likely pattern patterns the white within recent will be Harris experts testimony years. in Republicans. Democrats and favor conservative many closely respects. coincided testimony that the dom- Their establishes District 15 is black. Included 19% County political party in inant Harris part, in near the the its eastern heart of Party. However, the is the Democratic city, city’s poorest are some of the part of and Harris western Houston neighborhoods. part In of the western stronghold. County Republican The ais district, hand, on are locat- County Party in Democratic Harris neighborhoods upper ed middle cleavage a well defined between liberals Among neighbor- class whites. these fac- conservatives. conservative area, hoods is the River one of the Oaks Party tion of the Democratic controlled most in the affluent residential areas single seat Harris voting pat- United States. The white Senate until However since 1966. probably tern will favor conservative changed date, to the situation has Republicans, Democrats and similar to that, present the extent five mem- pattern voting white District delegation, there are four ber liberal Republican. Democrats and a Districts 7 contain 23% The evidence shows that the inner blacks, respectively. dis- These 18% city original Houston, defined demographic reflect tricts same fifty census, census tracts of the 1940 voting probable patterns as Distriсts 431,000. has a Most of 7, however, and 15. Districts 6 and are city black, the residents of inner homogeneous more somewhat than Dis- but substantial numbers of Mexican- tricts 11 and 15. poor Americans and whites also reside containing black, District 4% there. Black voters in area favor shape, encompassing ain horseshoe Party overwhelmingly Democratic eastern, western and northern sub- support liberal Democrats to the County. urbs of Harris In its eastern voting patterns same extent. Past part, part is for the district most city that, legis- the inner demonstrate liberal Democratic. To the north and races, para- lative economic issue are west, increasingly becomes district minds, mount in the voters’ and conservative. ally blacks and blue-collar voters them- expertise Mr. Bracewell’s Harris legislators. selves to elect liberal Con- County politics derived from ex- his sequently, despite the fact that blacks perience as a of the Texas House member minority constituted a in the four sena- Representatives years, a two torial part districts that included a member of the State Senate from 1950 to city the inner under the 1965 redistrict- lobbyist corpo- a and as for various ing plan, political viewpoint Legislature rate interests to the Texas blacks—liberal Democratic—was held since the latter last date. At the session all four Moreover, Senators. one of the Legislature, his clients included Senators, Jordan, the Honorable Barbara Taxpayers, the Texas Association of is a black. membership 5,000, a of more than vari- redistricting In plan for Harris utility companies, corpo- ous and other County adopted by Legislative Re- representing rate interests. ents, In his cli- districting Board in core opposed Mr. Braeewell bills enact city again among was divided four sena- corporate tax and to income establish torial Murray districts. Professor cate- utilities commission. The bill to create gorized districts, the new as follows: a utilities commission did not come to the Senate floor a vote. income his executive administrative assistant. Gregg Hooser, employee tax measure was the Senate defeated of the Joint Generally, Legislative Redistricting, vote of 16 to 15. liberal Committee for Spellings drawing maps. Senators favored enactment the cor- assisted Hooser, prior in beginning porate bill, tax income conserva- whereas the actual Bracewell, opposed drafting, tives Mr. were it. had collected and had available therefore, possessed legitimate regard- interest to him massive amounts of data electing ing tracts, compositions State Senators a conserva- racial of census County. philosophy covering tive voting years, Harris results several profiles and socio-economic of census deposition, Mr. de- his Bracewell tracts. scribed, candor, with admirable his anal- ysis requirements met, if con- Mr. Bracеwell testified that he electing personally conservatives were succeed in sulted Legislative all with members of the Redistricting conservative Sen- Democrats Board concern- necessary, first, : ing ate It to would be de- State in Senatorial Districts Harris vise two with Armstrong, a sufficient num- except Commissioner Republicans of ber to by defeat Democrats with whom he discussed the situation Election; second, in and, the General telephone. He consulted several times contingent provide for a of conservative with the Mr. Lieutenant and Governor large enough voters in each Spellings. district to spoke He also with Mr. Hoos- elect conservative regarding redistricting candidates over lib- er ten about eral mary Pri- occasions, candidates Democratic times. one of Mr. On these accomplish pur- brought Elections. To him a Bracewell colored pose, origin Mr. Bracewell and stud- obscure, examined map whose but which is returns, ied election and decided that came to Chamber be called the “Houston requisites the setting of the situation demanded map.” map, of Commerce This voting precincts (black) that liberal in proposed out Districts State Senatorial city rearranged. the inner be County, presented by him in Harris was Spellings. Spellings to testified Mr. Mr. majority opinion noted in the As of map the had behind that “a breakdown court, Legislature the the Texas failed to gave or that the Black that showed enact a to redistrict the bill Texas Sen- of Senatorial each those session, by required ate at its last Districts.” pro- the Texas Under Constitution. the Constitution, visions of respon- the the Although literally of citizens hundreds sibility redistricting preparing for Legislative of contacted the the members Legislative upon then devolved redistricting, Redistricting as to Board Redistricting Board, whose ex-officio by correspondence, person, in telephone members were the Honorable Crawford many telegraph, General, Attorney Martin, the Honorable presented plans, own this number their Barnes, Governor, Ben Lieutenant clearly appear to Mr. Braeewell’s views Mutscher, Speaker Honorable Gus day, insofar as Harris have carried the Representatives, House of the Honorable County’s Districts Senatorial Armstrong, Commissioner, Robert Land Murray contended concerned. Professor Calvert, and the Honorable Robert S. finally by the map adopted Comptroller. Redistricting Legislative bears Board similarity the Houston depositions such marked of the of the members map Legislative Commerce Redistricting Chamber Board indicate plans probability two very clearly of the statistical that Lieutenant Governor virtually A being nil. unconnected had Barnes effective control re- particularly comparison maps, districting of the two process. The Lieutenant boundaries serpentive delegated course actually the task Governоr drawing the area Senatorial Districts maps Spellings, to Robert fully out, precinct city, will bear out Profes- inner results reveal strength Murray’s opinion.1 political sor whites will have far out proportion majority. to their that, 65% testified under Bracewell Mr. Voting habits of the whites District Legislative finally adopted Plan 11 also that, demonstrate a State Redistrieting Board, two conservative contest, Senatorial of form- likelihood a chance elected Democrats “have be ing unlikely. a coalition with blacks two liberal Democrats [as well as] Although Senator Jordan refused to possibly Republican.” Professor one concede that she could not elected in be Murray two con- identified the most the new Senatorial it was District servatively oriented districts as Districts opinion Murray Professor worthy two 7 and of note that 15. It arranged four Senatorial districts are so Democrats, Representatives conservative possibility that no exists a black Ogg, who are “members Lemmon and felt, be elected. Even Jordan Senator dominated House team that has however, that it been would have more years,” Representatives in recent difficult prevail for her the new dis- support enjoyed the of Mr. who have trict than the old. races, past announced in their Bracewell Dis- of State Senator office Legislative The net effect of the Re- respectively. Professor tricts 7 and districting been, again, Board’s action Murray further testified: fragment city the inner black voters plans a hundred one had take “[I]f past into four districts. But while randomly construed that would viewpoint these blacks’ was ., I think this would one be represented Democrats, by four liberal most or three that would two they black, one of them likely henceforth are Ogg to the interests of Mr. favorable represented, to be in two of the Lemmon.” and Mr. city districts, by belong- inner Senators Murray’s ing It Professor further Party was ato faction of the Democratic districts, drawn, opinion as are that these been, past, which has inimical to “very, very election favorable the interests of blacks. Ogg.” Mr. Mr. Lee [sic] beyond any It is settled doubt that a redistricting plan, Under the 1965 gerrymandering presents claim of racial originally approxi- contained District 11 justiciable Lightfoot, v. Gomillion issue. Additionally, mately or blacks. 48% 47% 346, 125, 5 339, 364 U.S. L.Ed. 81 S.Ct. up majority was the primarily made white (1960). Subsequently, 2d 110 the Su middle of lower class blue Wright Rockefeller, preme Court v. mentioned, already collar As workers. 52, 603, 376 11 L.Ed.2d 512 U.S. 84 S.Ct. voting patterns class indicate involving (1964), attack on case at whites, issues are economic where of stake, single allegedly drawn member coalitions with blacks will form apparently lines, deemed on racial legislators, elect white. Such black self-evident, it did matter to be was, fact, formed when coalition proceed justiciability even discuss ing before Jordan was elected Barbara Senator cases, In later merits. 11 in 1966. District ' Senate uniformly interpreted courts lоwer although 11, District contrast, the new foreclosing Wright as Gomillion just did the as it contains blacks— 37:%- Paris, 257 g., F. matter. E. Smith v. 1970 old the time District (M.D.Ala.1966); Supp. 901, Sims 904 , paired middle has blacks census— class and (M.D.Ala. Baggett, F.Supp. 96, 104 class whites. upper middle 1965). registration, turn- Analysis voter of voter Hous- Redistricting in the out Legislative Districts set copy Senatorial 1. A map appears map Appendix Commerce appears ton Chamber of in the Board’s Appendix II. Exhibit as copy configura I. A Exhibit County proposed Harris tions of Proceeding feller, now to the merits of the supra, 56, 603, 376 U.S. at 84 S.Ct. gerrymandering racial claim, the first 512, supports L.Ed.2d application question proper becomes that of the con- of the Fortson-Burns-Whitcomb stand- applied. stitutional standard to be In the problem ard to the gerry- of racial involving cases attacks on multimember manders. districts, Court has articu- Applying the FortsomBums-Whitcomb lated the test A follows: multimember criteria to the sup- evidence adduced to apportionment is unconstitutional scheme port the claim gerrymandering, of racial if, particu- under the circumstances of a I am opinion the evidence case, operates lar to minimize or cancel amply more than supports a conclusion voting strength out of racial or the Senate districts Harris political voting popula- elements designedly operate minimize, dilute, 124, Chavis, tion. Whitcomb 403 U.S. voting strength and cancel out the 144, 1858, 91 S.Ct. L.Ed.2d 363 Certainly, blacks. when the evidence of (1971); Richardson, Burns v. 384 U.S. design coupled with the manifest con- 1286, 88, 86 S.Ct. 16 L.Ed.2d 376 sequences and clear effect of the (1966); Dorsey, Fortson v. 379 U.S. promulgated for Harris County, an infer- (1965). 13 L.Ed.2d 401 S.Ct. design discriminatory ence of is com- persuaded I am the multimember pelled. Paris, supra. See It Smith v. problem gerrymandering district and the pointed should be out that Commissioner problem sub-species and manifesta- Armstrong sign adamantly refused to By problem. tions of a more what- basic plan finally adopted by Legislative problem ever name the more is call- basic Redistricting Board, because, in his ed, discriminatory it amounts to this: opinion, city the votes of the inner blacks whereby party action in Houston were He communi- diluted. power actually accomplishes group which opinion Attorney cated his to the General redistricting power uses its to trans- Governor, and the Lieutenant hence it strength form into the its actual voter hardly can be contended that the Board legislative and to con- maximum seats plan’s was unaware of the inherent vice. party’s vert the other actual voter legislative strength into the minimum spirit The of the statement of a three- majority party seats. Just bias judge applicable court in Alabama is exaggerated by racial can creat- effect be the situation at “The hand: . large enough ing multimember districts plan adopted . . . Alabama submerge political minori- racial and Legislature was not conceived accomp- ties, so the same result can be ignores long vacuum. If this court skewing. partisan line lished conscious history of racial discrimination in Court, People, Dixon, The See Alabama, prove justice it will that is both Man, Reapportionment Vote”, “One One Baggett, blind deaf.” Sims v. 1971); (Polsby 29-30 ed. in Dixon, Seventies supra, F.Supp. at 109. Connor 247 See Representation, 462 Democratic Johnson, 1760, 690, v. 402 91 U.S. S.Ct. (1968). Thus, I not neces- while am (1971); Amos, L.Ed.2d 29 268 Sims v. logic sarily compelled by internal F.Supp. 924, (M.D.Ala.1972). 336 pare Com- similarity above, the 649, noted fact Allwright, : Smith v. U.S. 321 757, (1943) ; Terry 64 S.Ct. 88 987 Fortson-Burns-Whitcomb standard L.Ed. 809, 461, Adams, v. 345 97 73 S.Ct. U.S. aspect of the used to solve one basic (1953); L.Ed. 1152 States v. United problem persuasive the same Texas, 1383, 155, 16 384 U.S. 86 S.Ct. standard should another used to solve be (1966). L.Ed.2d 434 aspect problem. More- same basic language Lightfoot, over, v. Gomillion opinion I am of the Court 125, supra, 345, 347, justified adopting 364 U.S. at 81 Professor would S.Ct. Murray’s plan Wright interim solution 5 L.Ed.2d 110 and in v. Rocke-

749 Although nothing problem it.2 short before This case plaintiffs complete requested de vindication Mr. Justice Court both ago warning years plans at conclu fendants to submit Frankfurter’s nine Murray’s plan case, quagmire (apart ‘of the sion of the Professor mathematical plan only plan His in no judicially inappropriate file. from on is the divers out, way dilutes, or minimizes determinants) cancels and elusive into which Although his catapults would today vote. the black Court the lower likely would country.’ Carr, Senator make it that black courts of the Baker v. 15, as on 186, shown 691, from District be elected 369 L. U.S. 268 7 S.Ct. [82 plan, not be an would that result (1962) (dissenting opin his egregious Ed.2d 663] vote, the black ion). inflation respect, With all it also bears living in proportion given of blacks to the morass witness into which the County. gotten Harris by departing Court has itself from principle in sound constitutional to mean this, taken By I am not to be dissenting the electoral field. necessarily See the en- blacks believe I opinion of Justice representation. Mr. Frankfurter proportional titled Carr, supra, my separate Baker contrary. v. appears to be law opinions Reynolds Sims, supra, Chavis, 403 v. 377 U. U.S. Whitcomb 533, S. ap- 1362, 1395, 589 S.Ct. L. [84 I 12 1858, L.Ed.2d 91 S.Ct. (1964), Oregon Ed.2d pragmatic and in 506] problem proach the Mitchell, time to trying same U.S. S.Ct. [91 at the standpoint, 260, 279, Reyn- (1970). 27 L.Ed.2d I political thicket. stay 272] out hope day will come S.Ct. when the Court Sims, 377 U.S. olds v. frankly recognize will error of its 1362, L.Ed.2d 506. ways having in ever undertaken to re processes. structure state Judge electoral Jr., WOOD, District H. JOHN dissenting in part (concurring in “I judgment would reverse the below part.) remand the case to District Court with directions dismiss the dissenting concurring part and complaint.” Judgment, I make part with in following: agree personally While I Mr. Harlan, Justice since the of the United this al- States entered FOR OBSERVATIONS GENERAL impregnable most admitted LAW CONSTITUTIONAL jungle, I no alternative to com- but APPLICABLE ply with this Mandate in these to act realizing my cases as best I can. While separate Harlan’s M. R. Justice Mr. short-comings expertise own and lack of demon- Opinion in Chavis Whitcomb v. restructuring in the field struc- of the among the “malaise the evident strates political processes, ture of must I States’ prior de- the with of members Court” law, agree follow the it whether I qualifica- voter in the field of cisions or not. the observes tions. He further Opin- “suggestion implicit Court’s past, in the At a in the time the distant pre- Appellees ultimately constitutionality ion test of of action State they in depend record these vail if their seemed on not it make to whether or recognized respects could ar- and like should be that the shown action was bitrary, capricious. it frus- As for what is: manifestation of unreasonable or trap- by a has become case tration Court that Justice Brandéis stated the Mr. Young ped ‘political of Fire and look- O’Gorman the thicket’ & Hartford is ing way Co., Mr. Harlan Insurance 282 U.S. out.” Justice S.Ct. (1931), presumption continues: L.Ed. plan Exhibit Murray’s as III. Appendix is shown Professor uncertainty ambiguity constitutionality legislative action and of test- of of ing constitutionality fac- as set forth in absence of some prevail must Chavis, supra, makes over- Whitcomb in the record for tual foundation throwing difficult, application record if im- most not the action where (Cit- possible, to di- action. this case. fails to show unreasonable 3.) Pre- ing also “The rective cases See lower Court is it at f/n prevail upon Constitutionality”, sumption Col.L. instructed to endeavor of Legislature (1931). the Indiana cer- Rev. 1136 consider might tain elements and factors that im- Chavis, supra, appears to Whitcomb v. prove minority voting rep- the ethnic and depart con- from this earlier deviate pluralitar- resentations of the losers drape cept and seems foreordain apparently ian All this election. Judges man- the Trial with the awesome under done War the Civil Amendments. unerring omnipotence and clair- tle of The Federal Courts are thus in effect determining voyance action when State using judicially these amendments “operate the vot- cancel dilute or [s] amend the Constitution without follow- ing strength political ele- of racial or ing prescribed by the method the Con- apparent most It from the ments”. stitution itself. Federal Courts are en- cursory perusal testimony larging rights given under the Con- men, expert lay witnesses that reasonable by entering purely stitution fields Judges disagree profound- and even the legislative management State local ly propriety of Re- as to the the Texas expertise where there is little no on districting reapportion- Board’s part Judiciary. the Federal In- ment of its House Senate. terjection by Federal Courts in man- this prim- present concept, Under commentary ner is sad indictment and ary constitutionality test of in these on our heretofore sacred Democratic question cases is not the of reasonable- processes judicially are in effect non, ness, vel on the rather but turns branding our Democratic form of Gov- question merely whether evidence ernment a failure in form created preponderates against fairness under our Constitution. plan. stated, For I the rеasons believe that I have been ever mindful of ad- ju- should Court exercise as much my monition to me on the induc- eve declaring possible dicial restraint as Judge by tion aas Federal Honor- Reapportionment the State Plan uncon- Brown, Judge, able John R. Chief U. S. stitutional; however, where in those in- Circuit, Appeals Court of for the Fifth stances, here, the Court has deemed “ap- when he reminded me that I was necessary, every should pointed, deplore not anointed”. While I opportunity alleged to correct its mis- the intrusion Federal Courts permits. takes where time legislative the ally affairs democratic- sovereign elected officials of the THE CHALLENGE OF THE Texas, State of who act a Redistrict- LEGISLATIVE REDISTRICTING ing Board under constitution of this BOARD’S PLAN FOR THE State, apparent it is that I must follow HOUSE OF REPRESENTATIVES the Mandate portions Redistricting Opinion Judgment declare Reapportionment of the As and the and of the invalid, correctly ap- stales, Plan Court in if it case this vari- pears preponderance plaintiffs challenged from ous a of the evi- the constitution- plan ality dence any respect Legislative that the of the fails entire Redistrict- ing “one-person, plan to meet Rep- the con- Board’s one-vote” for the House of cept grounds it “dilutes and resentatives on or minimizes” not the that uncon- necessarily voting minority disparities “cancels” stitutional deviations and ex- rights. population many ist in the of House Dis- concede) plaintiffs went in their Briefs districts multi-member and that tricts gave adequate explained and forward and result are not uniform in Texas admit- among for the deviations which reasons certain discrimination invidious tedly of exceed excess did not political elements. 5.7% racial than plus more on and was not the side my declaring plan invalid the entire In side, except, of on the minus 4.1% course, colleagues rely prior hold- on two learned County, was in Dallas which ings Supreme that when- of Court the devia- district which multi-member popula- deviation ever the fact of cured tion in has been Dallas raised, equality falls the burden tion single-member prescribed the Court’s “acceptable present upon the State to adopted plan and which Court which this among the reasons populations the variations plan replaced multi-member district legislative dis- of various Dallas, allegedly approx- of had which Adams, 1967, U.S. v. Swann tricts”. imately Cer- deviation of minus 21.6%. 501; 440, 569, 17 L.Ed.2d 87 S.Ct. tainly, I to the Re- not feel it is fair do Preisler, 1969, U.S. Kirkpatrick districting to declare Board of Texas (a 524, 1225, 22 L.Ed.2d 519 89 S.Ct. invalid, plan especially since the entire redistricting Congressional case which single- plan the new the Dallas now with Constitution) only “(the permits holds meets the member districts population variances which the limited requirements “one-person, one-vote”. of good-faith despite a ef- unavoidable are colleagues My criticize the entire also equality or for fort absolute to achieve allegedly it is not State’s because However, justification is shown.” which action, legislative product but of of greater pop- permits members, action five of a “board of apportionment of ulation deviation legis- of the one whom is member Legislatures, involved which is State fact This overlooks the lature”. Reynolds Sims, this case. 577-578, 377 U.S. pro- this a Board created under L.Ed.2d 84 S.Ct. III, 28, of the visions of Article Section Mundt, also See Abate v. Texas, purpose Constitution 399; 29 L.Ed.2d U.S. 91 S.Ct. redistricting the House Senate county legislative ap- upheld a which portionment Legislature State, where the with a total deviation act, Board to if effect authorizes this However, made itself the Court 11.9%. Legislature fails to do so. A most very generis, sui clear that Abate was important element that this Court over- involving only government appor- local have looks is that officials who been holding Kirkpatrick And the tionment. may substantially designated constitutionally fill “tolerance” erode the prestigi- role five the most vital are Reynolds. dictum in it is obvious While people officials elected all ous present stand- under constitutional Texas, the Lieu- of the tenant-Governor, to-wit: State longer ards that evidence no Speaker of action, in- that the to be establish State Representatives, the Land House of Com- arbitrary, valid, unreasonable must be Comptroller missioner and Accounts, of Public capricious; however, it more must be in this case which Board acted conjec- suspicion, than mere surmise or of the also under democratically advice counsel ture. Attorney elected General percentage Opinion concludes that deviations shown Texas. The legislative analyzed in the “we serious doubts that this board job Opinion they con- demonstrate that did the sort of deliberative se, not, by Reynolds per templated dis- unreasonable and are [v. Sims] against people worthy judicial crimination “all of abstinence.” How Texas”, majority Opinion opinion this con- Fur- reaches maintains. thermore, (although in this all clusion from the evidence mystery required I under to me. doubt was so case is a distinct do meager event, point of meet- test is not the on this which the the number evidence ings job” type of “deliberative “But we have or insisted that the chal- Redistricting lenger carry Ac- proving Board. of done burden and, tually, the test is one of multi-member districts unconsti- here, tutionally operate do not have even the mathematics to dilute or cancel Sims, Reynolds voting precise. strength v. politi- to be See racial supra, ex- cal which holds: “Mathematical elements.” hardly precision actness or is work- Chavis, supra, v. Whitcomb at (Em- requirement.” able constitutional phasis supplied.) S.Ct. at concludes further “ suggestion . . is . there no here majority finds that Texas The then County’s that Marion dis- multi-member justify failed the deviations has which trict, throughout or similar districts analyzed opinion. in All State, operated pur- were conceived or evidence the trial of this adduced on poseful devices to further racial eco- conclusively ra- case that a establishes nomic discrimination.” policy tional State does exist Texas County requires Chavis, supra, adherence to lines Whitcomb v. further except in areas Ar- finds inter-urban under that “affirmance of District III, spawn litigation”. ticle Section Texas Constitution. Court would endless Texas, In justifiable is violation lines nothing I can think illus- which legislative redistricting agonizing trates better the chaos which requirement where a of Federal law restructuring exists in the area of may be demonstrated. v. Smith Crad- sovereign districts of the States 1971) (Tex.Sup.Ct., dick Kirkpatrick 471 S.W.2d 375. decision, painful- than this wherein Preisler, supra, supports ly Judges obvious that com- three proposition that the must do State posing very no this have almost best and not its settle for must some finding unanimity path from the enough fixed variation “small to be con- impenetrable thicket in Fed- which the satisfy de sidered minimus and to with- eral Courts find themselves. now question practica- out the ‘as nearly ble’ standard”. plaintiffs challenge The who the multi- throughout member Court of Texas obvious- the State of ly Reyn- Texas, had in mind the tolerances of other than in Dallas and Bexar Sims, they are, Counties, readily olds v. undefined as concede because recognizing pressures pre- they while the difficulties and lack develop time sented, were said 471 unable to full S.W.2d 379: record unconstitutionality as to other “However, this court not abro- impact at-large counties and the gate any provision of the constitution systems throughout the State. Further- simplicity. for the sake of The feder- more, admittedly since the evidence requirement equal representation al clearly alleged inequities deficient toas has nullified Section Counties, the other and there have been entirety.” Article III complaints by any no citizens from those majority opinion then states large metropolitan “at-large dis- provide “also failed to ra- tricts”, I feel that this is additional justification haphazard tional upholding validity reason for single combination of and multi-member plan inequities State’s after have districts at in this issue case”. The plans been corrected new which this opinion then continues: prescribed Court has for Dallas irrationality, “This without reason Bexar Counties. justification, separate may be a disagree declaring ground wholeheartedly While plan distinct I my colleagues, who declared unconsitutional.” unconstitutional, respectfully I I con- State’s do submit that a hold- such affording ing contrary Chavis, generosity cur their to Whitcomb July following: supra, Texas until on or before which states the

753 reapportion gerrymandering adopt plan a a to certain amount of 1973 to legislative absolutely any districts for the House essential event Har- County Representatives requirements ris meet accordance with guidelines population Opinion and as set out in the other considerаtions of Judgment population and other of this Court. considerations such ethnicticity, contiguity, and commun- THE ity SUITS SENATOR- INVOLVING of interests. IAL IN HARRIS DISTRICTS (Bexar County) In the San Antonio AND BEXAR COUNTY case, posts are filled two Senatorial Anglo by an a Mexican-American. join Goldberg Judge uphold- I with The Mexican-Americans are not a min- ing validity Reapportionment ority County; they comprise in Bexar Plan Texas for Sen- of the State of its group nearly equal in to the size atorial Dis- Districts. Senatorial Anglo group. District Senatorial throughout single- are tricts the State 110,000 people approximately combines re- member districts and quirements County approximately of Bexar person, vote” have of “one one East, people from rural counties apparently been achieved. 250.000 County, Bexar West although South no Inasmuch as Senatorial community of there no real Redistricting County in Bexar or Harris groups, a divi- interest between the two County single- shaped into different necessary sion of some sort main- wishes, re- member districts meets the require- ‍​‌‌​​​​‌​​‌‌​​‌​‌‌​‌​‌‌‌‌​​‌‌​​‌‌​‌‌‌‌‌‌‌‌​​‌​​‌‍person tain the “one vote” —one quirements everyone and and needs of ment, appears if the and it that even opinion there is a vast difference of County persons were from Bexar 110.000 equally almost divided as what portion taken from dividing best means of the districts side, Bexar than from North be, appears would and inasmuch substantially greater there would be no plaintiffs have failed sus- community of interest established. proving by pre- tain their burden ponderance of the evidence that the Sen- THE THE CHALLENGE AGAINST operate atorial Districts to dilute or can- LEGISLATIVE MULTI-MEMBER voting poli- strength cel the of racial or AND IN BEXAR DISTRICTS elements, agree tical I the action DALLAS COUNTIES Redistricting Board is valid stated, deplore, I as heretofore While constitutional. Courts the intrusion of the Federal Kilgarlin Supreme Court, in v. legislative democrati- affairs of the Hill, 820, 17 L.Ed. 87 S.Ct. U.S. sovereign cally elected officials of the (1967), approved 2d 771 the lower court’s Chavis, Texas, Whitcomb inquiry statement that the court’s (cid:127)ttmust progeny, that Federal Courts dictate - judicial it is end when satisfied that preponderance of must so where the do ly-ascertainable standard of substantial ac- that the State the evidence discloses equality population in the districts “operate or cancel tion to dilute [s] Kilgarlin Mar

has been achieved”. voting strength racial tin, F.Supp. at 434. connection, person- I In this elements”. ally fact does in that the evidence feel case, Barbara Houston Senator that, preponderate in direction and Black, Jordan, that she testified would my test, I concur with based on this that she could not win not concede Reapportion- colleagues that the Board’s new District because Senatorial for multi-member ment Plans appeal could she believed she un- and Dallas Counties in Bexar Doctor the voters. Even broad base reasons various constitutional plain- Murray, expert for the witness majority opinion. case, stated concedes that tiffs in the Houston Harry E. BERGER LINE, INC.

GRACE No.

Civ. A. 68-2495. Court, States District

United Pennsylvania. E. D.

Dec. 1971. Enforce

On Petition to Settlement

Agreement Feb.

Case Details

Case Name: Graves v. Barnes

Court Name: District Court, W.D. Texas

Date Published: Jan 28, 1972

Citation: 343 F. Supp. 704

Docket Number: Civ. A. A-71-CA-142 to A-7 l-CA-145

Court Abbreviation: W.D. Tex.