Graves v. Barnes
408 F. Supp. 1050
W.D. Tex.
1976
Check Treatment

*1 et al. Curtis GRAVES

v. et al.

Ben BARNES et al.

Diana REGESTER

v. et al.

Bob BULLOCK

Johnny MARRIOTT et al.

v. et al.

Preston SMITH Henry

Van ARCHER et

Preston SMITH al.

Frank A. et al. ESCALANTE

Mark et al. WHITE

James et al. GASKIN et al.

Mark WHITE

Wanda L. et al. CHAPMAN Jr., WHITE,

Mark W. et al.

Civ. A. Nos. A-71-CA-142-A-71-CA-

145, A-73-CA-115, A-73-CA-146

and A-73-CA-155.

United States Texas, W. D. Austin Division.

Feb.

1051 dis single-member requiring decision Supreme by was tricts affirmed Regester, 412 in White v. Court In (1973). 314 93 37 L.Ed.2d Graves, in supra, the second decision in eight other counties we considered with al and one multimember leged racially gerrymandered. to be in of the counties required there seven Worth, Tex., single-member Don be into Gladden, issue to divided Fort George Korbel, appeal an Legal again, Mexican districts. American Once During Court. Fund, Supreme Defense taken to and Educational An- San Tex., the Texas tonio, appeal, plaintiffs. pendency for of the pro H.B. legislature enacted L. Hill, John Elizabeth Atty. Gen. in all single-member vided for Tex., Levatino, Gen., Atty. Asst. Austin order in our of the counties affected for defendants. 30, 1975, the June Su II.1 On Graves us, to GOLDBERG, Court the case Judge, preme remanded Before Circuit light in WOOD, “for reconsideration JUSTICE and legislation reapportionment recent Texas Judges. or be and for if case dismissal 422 moot.” comes White OPINION MEMORANDUM 662 95 PER CURIAM: Subsequent passage of H.B. Our to Sisyphean second effort to break the United through legislature, Texas political thicket Vot Congress the 1965 extended with States redistricting ended Act, hope bringing the State ing Rights clearing, we had “come to a in order rays true demo enactm purview observe the of a Texas within society.” cratic Act, Graves v. Barnes to Section 5 of the Pursuant ent.2 (Graves II), 378 F.Supp. 640, (W.D. Attorney H.B. to the was submitted Tex.1974). largely hopes Our have been for clear General of the United States realized, only of the segment one General, however, The Attorney ance. boscage yet remains to be breached. to three of the dis interposed objections appor

In our tricts contained within State original opinion, Graves Barnes, (W.D.Tex.1972), While certain recourse plan.3 tionment F.Supp. of the districting State, we found remains with Voting the terms the multimember it clear that the Rights scheme in make Dallas and Bexar Counties Act At- of our which the portion provisions be unconstitutional. H.B. 1097 many result Leg. 1. in as districts and would Texas tions 64th H.B. 1097. Title Vernon’s Ann.Civ.St, significant minority with Art. in two districts 195a—4. populations. We note that two of at least 1973c. 42 U.S.C. § districting presented alternatives to the objection the H.B. Attorney General’s January to its order Court County as follows: lines reads Tarrant Barries, fragment- avoided the in Tarrant Regarding 32A-32I Districts minority ing cognizable areas residential portions new County appears it County from House results Tarrant drawn single-member district lines regard found with Bill 1097. As we minority con- residential through cognizable County, districting in Jefferson submitted resulting apportionment centrations Bill 1097 for Tarrant the result in House districts, fragmenting necessary of those areas into County appear does not minority overriding only one of which has boundaries or of natural the basis fairly compactness or on population, alternative drawn considerations por- governmental districting plans placing compelling would avoid basis of minority justification. concentra- tions residential rejected also legislature has tomey objected are present- General has ly districting ineffective.4 concept multimember well as for the state Tarrant —as mandate of the In accordance aas whole. court scheduled February 1976. Since hearing on relief, fashioning its *3 action Attorney General’s the result of plans two sub- asked choose between nullify the effectively to had been plaintiffs The parties. mitted Nueces, Tarrant, districting in State’s very a similar to the proposal tendered and County, we determined Jefferson by this Plan” court adopted “Escalante districts for that the multimember plan, pre- II. The defendants’ Graves revived, hence and counties were pared by Representative Schieffer par moot. clearly case was current Tarrant and backed differ were to resolve their ties able delegation, presented Jeffer and respect ences with to Nueces Attorney court the State Counties, after and due considera son supplied The 1970 census data General.5 tion, agreed order accepted the court court, testimony as well as the plans compromise which embodied hearing adduced at in this recent these two counties. for Evidence suit, that does not demonstrate either of then situ present regarding received plans the two is unconstitutional. Both County, updating ation in Tarrant for district in plans provide primary a presented evidence minority constitute which voters a clear Plan, first issue before the In majority. court is the Escalante this constitutionality vel non of the mul is Mexican district 49.3%black and 22.2% districting plan timember American, primary while the defendants’ most constitutes of Tarrant Coun is black and 3.8% Mexican district 60.3% ty. addition, Inasmuch presented plan as evidence In each con- American. hearing at the last revealed no basis for tains secondary approxi- a district withdrawing our from conclusion in minority population. 43% In the mately Graves II single-member that plaintiffs’ plan, district is 38.9% American, are constitutionally mandated for this black Mexican and 3.6% district, Barnes, see Graves v. is equivalent the defendants’ F.Supp. 644-648, at we reaffirm Mexican Ameri- that and 25.3% black 18.2% holding. regard, In this it not plan’s should be ter- each can. An examination of ed that H.B. 1097 demonstrates that the minority districts tiary quartary and right Thus, vote on account of race that or color or in our evaluation indicates guarantees fragmenting cognizable minority contravention set forth in residen- 4(f) Section of the Act. tial Tarrant concentrations Jefferson and Counties will a on mi- have dilutive effect plan apparently 5. We note that the defendants’ nority voting accordingly, strength, and pit any seeking does not two incumbents re are unable to conclude as we must under against other; hence, election each it is not implementation Section 5 that the dis- surprising support that it has the of the Tar- tricts 7A—7C and 32A—321 House set out in County delegation. rant The record indicates Bill 1097 for Jefferson and Tarrant Counties that probably three incumbents will not seek will not have a discriminatory effect. Under reelection, explain may and this the felicitous must, these circumstances 1 behalf remaining representatives. situation for the General, Attorney interpose objection event, Court has said that implementation specified of the fact that may “district boundaries have set out in House Bill 1097 and for Jefferson way been drawn in a that minimizes the num Tarrant Counties. present ber of contests between incumbents Voting Rights provides 4. Section 5 of the Act does not in and of itself establish invidiousness.” declaratory judg- seek the State a Richardson, Bur ns 89 n. States ment from the United District Court apportionment District of Columbia Weiser, supra, cf. White v. purpose legislation has the nor will neither at L.Ed.2d 335. denying abridging the the effect of have hold unless today there are little the fore- adds flesh to bones of justifications, a persuasive court-or- going pro- Each of the observations. reapportionment plan dered of a state im- posed represents substantial legislature must avoid use of multi- provement over the former multimember districts, and, well, member as must scheme with its attendant constitutional ordinarily goal of popula- achieve the infirmities. equality tion with little more than de dilution their assertions of Aside from minimis important variation. Where voting fragmentation minority and state considerations ra- strength, plaintiffs argue that tionally departure mandate from these Escalante compelled to select the standards, it reapportioning is the Plan because the deviation factor court’s responsibility pre- articulate impermissible in a single-member cisely why scheme. apportionment court-ordered population districts with minimal vari- *4 plan Plaintiffs that while their point out adopted. (Footnote cannot ance on equality, deviates from absolute based omitted). 2.7%, 1970 figures, by only census a absolute plan defendants’ entails 7.7% 26, 766, 420 95 42 Id. U.S. at S.Ct. at deviation. L.Ed.2d at 784. dispute 7.7% deviation in beyond It would seem Whether the de- plan objectional under the point at this in an fendants’ is that 7.7% deviation adopted not an apportionment plan Chapman a state standard is issue legislature not the federal feel must at this time.7 does violate we be resolved one-man, jus- requirements requires To the extent tification, constitutional of this deviation supra one-vote. White v. find such in the exigencies time, fully (9.9%); 412 of below. Gaffney Cummings, v. U.S. discussed more 735, 2321, (1973) 93 37 298 L.Ed.2d 315, Howell, (7.83%); 410 Mahan v. analysis of comparative Further 979, (1973) 93 S.Ct. 35 L.Ed.2d 320 quantity small by the is frustrated (16.4%).6 plaintiffs’ how argument, The the informa- of speculative quality and ever, is on the Court’s based on brought to bear tion which has been holding is held plan that a court-ordered growth pat- significant question higher legislative standards than a within movements population and terns Meier, plan. 1, Chapman v. 420 95 which data census 5.Ct. par L.Ed.2d has court presented to the been ticular, plaintiffs’ rely on the follow substan- careful any updated by ing language Chapman: from is court This analysis. demographic tial discrimination, leeway devising legis 6. The and that afforded states in a de invidious 7.83% require justifica apportionment plans as to lative is not the rule as not to is so minor viation congressional Cummings, supra. districting, population Gaffney The court where tion. strictly equality required. Chapman Wes confronted devi much more 20% berry Sanders, have re Mahan would 376 U.S. 84 S.Ct. under ation —which Preisler, legislative (1964); Kirkpatrick justification, if it were a even quired L.Ed.2d 481 question plan. 394 U.S. 89 S.Ct. 22 L.Ed.2d 519 The troublesome for another Rockefeller, (1969); Chapman signifcantly day modifies Wells v. 394 U.S. is whether (1969); 22 L.Ed.2d 535 White v. in relation to court-or standard Mahan Weiser, supra. plans. dered our decision factor buttresses if a court-ordered Another Chapman teaches Chapman argument deviation, avoid resolution of plan a minor more than contains hearing significant consid state at the articulate evidence court must here —uncontradicted approxi justify departure population from de- erations to indicate did that a 32A, population equality. Supreme Court plaintiffs’ mate has occurred in crease legis that, plan by a state in a drawn suggests held has lature, factor the deviation mathematical deviations from minor plan than well be less their attractive among equality state figures. appears from the census prima case of facie out make insufficient basis unwilling, unable be implemented before the next election. relatively inex- conflicting and record’s reason, court, For this this as an interim final con- testimony, reach pert measure, implementation orders critical clusions at this time on these plan elec for use in the 1976 unable on questions. This court is thus testi tions. We hasten to add that either this record to conclude that mony hearing before this at the recent than other distinctly more desirable popula indications that contained as a claims.8 remedy plaintiffs’ tion demographic and other shifts However, final decision is burden changes may result under defendants’ our shoulders temporarily from lifted lessening minority political in a practicabili- compelling considerations input County.9 While in Tarrant ty- present sufficiently com record is not con plete point on this for the court to February hearing, At the taking step postpon sider the drastic court heard testimony Jerry from Ms. ing using the elections and the Escalante Reynolds, the Chief Deputy charge Plan, war the indications alluded to do registration voter in the Tarrant rant the retention jurisdiction. Cf. Tax Assessor-Collector’s office. Ms. Richardson, Burns v. in the Reynolds, Deputy the Chief Tar- 1286, 16 L.Ed.2d Kirkpatrick County Tax of rant fice, Assessor-Collector’s Preisler, supra, note 6. registra is in charge who voters’ Thus, jurisdiction court retains county. Reynolds Ms. testifed tion *5 begin respect with to Tarrant voting absentee will soon action Coun- aft- ty April elections, possible and conse further consideration the of Upon er the motion 1976 elections. precinct changes for Tarrant quently, intervenors, subsequent 15, plaintiffs the or completed must be March by elections, districting plan that, to the She further testified because ade- hereby adopted give fully does the same roughly follows defendants’ depri- quate for the constitutional 1097, relief voting precinct lines utilized in H.B. minority commu- by the vations suffered change necessary only be it would will County, the Court lines, nities in Tarrant precinct adopts if this court thirteen hearing, for setting consider another contrast, plan. imple such relief if purpose granting of further mentation of Escalante Plan would is warranted. for at eighty-seven changes. call least Reynolds Ms. estimated that latter weeks, require would

task ten Jr., WOOD, Judge District JOHN H. could accomplished former be two to concurring in (dissenting part and three weeks. part): impressed We decision majority’s cannot fail to To that of part be Reynolds’ Ms. essentially wherein multi-member uncontradicted it is held that testimony legislative districting plan for Tarrant plaintiffs’ plan that the cannot approved Neither of may 1975). has been There distinctions —which legislature, and so entitled neither controlling the instant not be —between deference on the basis of its source. See cases. those in the above line situation and Reynolds Sims, 377 U.S. applicability now determine the need not present, 12 L.Ed.2d 506 judicial For we general principle to this case pretermit thorny questions concerning since cognizable policy, legislative deference plan might deserving extent only support one application here could its presumptive preference of some on the basis result adoption the defendants’ —a congruence measure, of its closer the basis legislatively reach, interim as an See, drawn lines g., of H.B. 1097. e. White v. factors. other Weiser, 412 U.S. 93 S.Ct. (1973); Chavis, Whitcomb v. 9. The record also contains some indications demographic L.Ed.2d changes might Wallace de affect the House, (5th F.2d sirability See, 1975); g., Perry e. Cir. Escalante Plan. City Opelousas, 7, supra. (5th note F.2d 639 Cir. unconstitutional, I respectfully County is my Dissenting

dissent reaffirm America, UNITED STATES I and Graves Opinions in Graves Plaintiff, II, supra, As in Graves was concluded 671-672, respect to Dis- pages at PICCIURRO, Defendant. Peter F. only finding substantiable

trict “the 75-CR-91. that, Crim. No. full having that can be made political process, access the minor- United States at ity relatively unsuccessful E. D. Wisconsin. polls. of success is not Such lack 9, 1976. finding March sufficient to of invidi- support ous discrimination. Whitcomb v. See Chavis, supra, pages 159— remains,

1858.” This conclusion in my

opinion, valid one.

During pendency appeal II, Legislature specifi the Texas all

cally to abolish multi-mem undertook legislative

ber

Texas, place in their substituting single- (Texas

member districts. legislative 1097). Therefore, Leg.,

64th H.B. No. expressing opinion

without with re

spect constitutionality to the vel non of

the multi-member plaintiffs,

under attack the Su

preme Court remanded the case to this

Court “for in light reconsideration

recent reapportionment legislation Texas

and for if the case dismissal is or be

comes moot”. White L.Ed.2d 662

(1975). I, therefore, reaffirm my Dis

senting I Opinions Graves and Graves PLAN OF

ADOPTION OF DEFEND-

ANT STATE OF TEXAS

While necessarily I do not agree with

the reasoning expressed herein majority Findings and their of Fact and Law,

Conclusions of as demonstrated my

above three Dissenting

Opinions, I do concur with the results

achieved my decision of learned

colleagues ordering adoption by the Attorney submitted Gen

eral of the of Texas holding

the forthcoming legislative elections for reasons announced Weiser,

Court in White v.