*1 prohibiting the use of the results of this
particular exam. Both the state law stan-
dard consequences and the failing
meet matters best left to the state
court.
The motion to granted. remand is et
Curtis GRAVES al.
v. et
Ben al. BARNES
Diana et al. REGESTER
v.
Bob BULLOCK et al.
Johnny al. MARRIOTT et
v. SMITH, et
Preston al. Henry
Van ARCHER
v.
Preston SMITH et al.
Frank A. ESCALANTE et al.
Mark WHITE et al.
James et al. GASKIN
Mark WHITE et al.
Wanda L. CHAPMAN et al. Jr., WHITE,
Mark W. et al.
Civ. A. Nos. A-71-CA-142 to A-71-CA-
145, A-73-CA-115, A-73-CA-146
and A-73-CA-155. Court,
United States District Texas,
W. D.
Austin Division.
Oct. *3 Gladden,
Don Worth, C. Fort Tex., for plaintiffs.
R. Bickerstaff, Jr., Steve Asst. Atty. Gen., Austin, Tex., for defendants. GOLDBERG, Before Judge, Circuit WOOD, JUSTICE and Judges. District MEMORANDUM OPINION PER CURIAM.
Because our selection of the current dis- tricting plan1 County, Texas, for Tarrant guided 1976 was in no small way con- time practicability,2 straints of we ex- pressly jurisdiction retained grant fur- if plan proved ther relief inadequate to relieve deprivations the constitutional suf- fered by minority communities Tar- County.3 response rant the plaintiffs’ motion, good promise we made our to re- convene and reconsider the propriety of the districting plan adopted for the county, convening a hearing of two days September duration in of 1977. We are graced with a now less coercive timetable upon and a somewhat fuller record which to consider the current status the minorities County. ruling in Tarrant Our earlier admittedly wrought practicality; we whether may now determine it stand aas principle. matter of (Graves III), (Graves See III), 1. Graves v. Barnes 2. Graves v. supra Barnes n. F.Supp. (W.D.Tex.1976) court). (3-judge F.Supp. at 1054. reflect, opinion Reference this earlier will findings pertinent regarding Those part, history protracted the existence extent of racial litigation. also, (Graves discrimination and See dilution Graves v. Barnes minority I), process access F.Supp. appear (W.D.Tex.1972); Graves (Graves II), supra II), (Graves F.Supp. (W.D.Tex. n. F.Supp. Barnes at 644- 1973). plan unconstitutionally dilutes the rant against ty strength of the tion of minorities cess to the electoral nied tricts, Two substantive remaining [*] County. *4 allegedly thereby fragmentation [*] current First, minorities county’s denies minorities accomplishes this dilution. [*] districting plan challenges process. one [*] minority district, among claimed that Over-satura- [*] dispersal other dis- communi- equal accompa- brought voting [*] Tar- ac- be examination of “the thorny questions con- cerning neither ence on the basis of its closer no Also, because our earlier observation that [citations omitted].” evaluate such current deserving longer legislatively the extent to which one enjoys may carry. of some legislative imprimatur precisely 1054 n. 8 drawn legislative approval Graves presumptive prefer- accurate, lines (W.D.Tex.1976). congruence Barnes, H.B.1097 as the might must may House Bill 1097are provisions
That the
beyond
law is
dis-
second,
ineffective as
essentially independent presently
a
On
Nevertheless,
urge
the defendants
front,4
plan is
to
present
pute.7
claimed
violate
plan,
that
protec
emphasizing
Amendment’s
to their
equal
the Fourteenth
preference
unchanged from
legislative
three districts
requirement
tion
that
districts be it retains
1097, and
in House Bill
makes
practi
is
drawn
nearly
equal population
“as
as
those
Sims,
others.8 This once-
533, 577, only
changes
v.
minor
Reynolds
cable.”
377 U.S.
1362,
intent
1390,
506,
legislative
approximation
84
12 L.Ed.2d
536 removed
S.Ct.
(1963);
Meier,
1,
present plan
v.
420
with
Chapman
U.S.
95 is claimed to cloak
751,
thereby to lend it
(1975);
policy,
with an population absolute deviation of kinship with that which as virtue proclaim 2%, effect, less than plan and the now recog- with vice—we of course was riddled with a factor of deviation 7.7%. apportion- state duty respect nize our to See, Weiser, g., e. White v. policy.
ment 2348, 783, L.Ed.2d 335 93 37 of these vexed 412 U.S. S.Ct. Our consideration 124, Chavis, (1973); 403 U.S. issue Whitcomb questions by preliminary is diverted 1858, (1971). 363 We 91 29 L.Ed.2d scope Specifi our review. S.Ct. regarding similarity of this matter with perceive the we are bound to determine whether cally, and, Weiser, supra, the facts of White v. of indul present plan deserving one re- court there was even as the district review, its gent purportedly virtue of policy give to to state quired deference genesis,5 or whether must in an unconstitutional appearing higher per to standards which held those to correspondingly ready stand proposal, plans prod to that are the districting tain do not policy such considerations This, turn, honor requires uct of court order.6 acknowledged (Graves III), 4. Our courts have the occasional in House Bill see embodied incompatibility types pur- of the two supra of claims n. at 1051-52. Thus, it sued here. is said that “. . . redis- Meier, Chapman generally tricting comply one-man, 6. done to See one-vote may requirements impinge upon 42 L.Ed.2d right legal members of minorities access processes democracy.” supra. Kirksey 7. See note v. Board of Supervisors County, Mississippi, of Hinds Stipulation 8. No. Pre-trial Order (5th 1977) (en banc). F.2d 139 Cir. Regarding unhappy life the short redistricting effort, Legislature’s last detract from Constitutional requirements. firmities are obvious. We recognize, of Id., at 2354-55, course, that “reapportionment is a compli expressly at 346. We notion, any process,” eschew cated and that “[districting has however, present that sharp political deserves impact inevitably politi that kind of deference cal properly that at- decisions must be made those taches to apportionment conventional legis- charged with the task.” Weiser, White v. lation. supra, last redistricting proposal 795-96, 412 U.S. at S.Ct. at might which have laid claim such prefer- L.Ed.2d at 346. It is for reason, that ential 1097; treatment was House Bill certainly, “reapportionment that primari along with rejection ly duty the U. S. Attor- and responsibility of the State ney General went any legitimate through basis for its legislature or other body, rather this court’s relaxed scrutiny of than of a so-called federal court.” Chapman v. Mei is, “state” proposal.9 therefore, er, supra, 95 S.Ct. at that demon- L.Ed.2d at 785. But suggest the extent it en- mere legitimate policy state endorsement of adopted strates might review court in privileged any way joys meets the task that accorded its presumptively properly befalls the legislature have been is to subvert totally the logic of our predecessor. traditional deference
to legislative effort. That deference con *5 templates a studied thoughtful ap adoption our of the present Since the proach process legislative to of appor plan in Legislature the has tionment, whereby the resulting legislation adjourned Regular convened and both a may be presumed embody to legitimate the Special a Although Session. neither session general concerns the public. It plainly produced any relating legislative bill to re does not envision such an abnegation of the Texas,10 apportionment suggested by it is legislative suggested here; function as is so product the that defendants a the Special attenuated a claim to the common will can some Session lends form of sanc accorded limited solicitude.13 to the present plan. tion Specifically, is argued passage Resolutions, that of two Regarding voting the claim of dilution in by one the Texas House Representat previous County, comparison our ives,11 Senate,12 and one the Texas dem plans the same two that now before us onstrates legislative approval of the current following led us to the conclusion: districting occurrence, scheme. This we are The supplied 1970 census data to the told, weigh should in favor of our continu court, testimony as well as the adduced at ing approval of districting suit, hearing does recent not plans demonstrate that either of the two discussion of pretermit We an extended plans provide is unconstitutional. Both Resolutions, since in- their 9. That 12. Senate Resolution No. legisla- First we do not Called here confront a true Ses- sion, Legislature. text of tive 65th this resolu- was admitted counsel for the State adopted by previous that hearing: of Texas our tion is identical to Representatives. the House opinion, Ms. Levatino: It is the State’s Judges pointed here, surely have out proposed plan] legislative plan. [the is not a Certainly we are not much comforted plan proposed by It is a the State which we appears extent of deliberation which to have duty believe we have a to do. accompanied these sug- measures. The record Transcript hearing of 1976 at 163. gests, example, for given that the attention Simple House Resolution No. 2 consumed no Order, Stipulations 10. Pre-trial Nos. 5 and 6. more than one or two hours. Simple Resolution, 11. House First Called Ses- sion, Legislature. 65th The full text of this appears Appendix. our resolution legal against with the background is minority primary in which district plaintiffs’ proof must be viewed. majority. clear In
voters constitute a Plan, is 49.3%black this district Escalante In order to a claim of sustain denial American, while the and 22.2% Mexican minority political process, access to the is 60.2% primary district defendants’ plaintiffs’ is produce burden to evi- [t]he American. black and 3.8% Mexican findings dence support politi- secondary addition, each contains processes cal leading nomination and minority 43% approximately district election were equally open partici- not plan, this In the population. pation group question its 3.6% Mexican black and district 38.9% —that members had less opportunity than did American, equiva- while the defendants’ other partici- residents in the district and 18.2% is 25.3% black lent district pate the political processes and to elect An American. examination Mexican legislators of their choice. minori- plan’s tertiary quartary each adds little flesh to bones ty districts Each of foregoing observations. Regester, White v. 765-66, represents a substan- proposed plans 2332, 2339, 93 S.Ct. former multi- improvement
tial over the (1973). The Appeals Court of for the Fifth consti- member scheme with attendant Circuit recently emphasized has par- those tutional infirmities. Court, ticular elements which the Supreme in White Regester, had identified pro- III), supra, 408 (Graves v. Barnes Graves bative denial of access F.Supp. at 1052-53. process. new on issue any evidence Barring Among history these are: a of official access, to our hold- we are bound minority racial discrimination which constitutional touches present plan ing however, right minority register and vote writing, that earlier one. Since to participate in the democratic proc- *6 members of the 1976 election for ess, 766, 2332, 412 at U.S. 37 S.Ct. accomplished was Representatives of House 325; pattern L.Ed.2d at a historical of a present plan. the provisions the under disproportionately low number of minori- plaintiffs, the result of According ty group being members elected the of the dilu- provides new evidence election id.; legislative body, responsive- a lack political proc- to the minority tion of access Further, on plain- part ness oí elected officials to the County. ess community, a sur- needs of the validity population minority tiffs assert 769, 2332, at at intro- U.S. S.Ct. 37 L.Ed.2d at prepared their instance vey 325-26; depressed a is claimed socioeconomicstatus survey at trial.14 The duced participation community in which makes pattern changing demographic show 768, difficult, 412 at (District processes 32- district primary minority 325-26; at S.Ct. H), which was created under requiring majority pre- rules vote change pattern scheme. This districting nomination, requisite to 412 U.S. at results in an enhancement purportedly 32-H, 93 S.Ct. L.Ed.2d at 324. While culmi- minority in District population there, developed for use in standards were and a nating in an oversaturation involving situations multimember dis- minority in- fragmentation concomitant tricts, have re- they equal application to tertiary mi- secondary fluence in the districting making single- schemes use of course, In due we shall nority districts. districts, plan pres- member such of the turn a consideration evidence; ently before this court. Robinson v. but our immediate concern new
14. Plaintiffs’ Exhibit No. 2-77.
Court,
an
petuated
Commissioners
at 678
existent denial of access
F.2d
(CA5, 1976);
minority
political process.
racial
Kirksey, supra,
It is no one that we proposed by re-open a black representative The election of our inquiry regarding 32-H, minority and ra- from with a popula- District *7 history County predictable cial tion sixty-five percent, of Tarrant under its of was a previous districting We the multi-member therefore result of scheme. said, adhere to our that No can it true in finding longer earlier that as was “unconstitutionally sought, worked to ‘cancel and few had that blacks ever voting strength won, minimize’ minority accord- none ever a seat from had ing Regester, the standards White County Tarrant District 32. Graves v. McKeithen, supra, supra, Zimmer v. (Graves II), supra, F.Supp. Barnes at [485 Cir.)] Turner v. (5th F.2d 1297 today 645. could it Nor be said—if numeri- McKeithen, (5th supra Cir.)].” F.2d 191 cal our concern— proportionality were sole [490 II) (Graves Graves Barnes minority that County access Tarrant is is whether present inquiry 648. Our still at its arithmetical nadir. But we can- 1976, per- the plan, current effectuated not with this measure alone. be satisfied Order, Stipulation 8, 10, Order, 15. Stipulation Pre-trial Nos. Pre-trial No. 9. precinct black minority by that a candi- Tarrant County we to hold con- Were majorities.17 siderable conclusive polls success at the is These results evi- date’s dence minority Representative access to the continuing Willis’ proof group’s merely support be in- in the process, we would political minority community. Even attempts probative, believe, to circumvent Consti- more we viting the generally not to do. In- tution. This we choose favorable review of Representative Willis’ require an stead, we shall continue to performance by own witness- record. independent consideration es.18
Kirksey
Supervisors
v. Board of
Hinds
No less enthusiastic was the
testimony
County, Mississippi, supra,
support
Miller,
in the
Barnes
minority
supra,
F.Supp.
408
32-F
at
and 32-1.
1053. We are therefore constrained to find
that the present
one,
plan is a constitutional
we
accept
pro-
Were
as accurate
in the sense that
it does not
perpetuate
for
population figures
revision of
Dis-
posed
pre-existent
of minority
denial
access to the
32-H,
might
put
trict
we
still be hard
political process. Kirksey, supra.
conclude
a denial
minority
existing
access.
“[C]learly
accounts
it
is
[*]
#
#
[*]
[*]
[*]
enough
prove
disparity
not
mere
between When
present plan
implemented,
the number of
and the
minority residents
1976,
“[wjheth-
reserved the question
we
representatives.”
number
of minority
in the defendant’s
er
7.7% deviation
supra,
143,
at
Zimmer v.
Kirksey,
citing
objectional
Chapman
under the
[sic]
McKeithen,
(5th
”
at
Party County, of Sheldon Tennessee v. Dix exigencies We found in the of time suffi- on, 934, 97 429 U.S. justification higher cient for the deviation Among the several scientific in the state’s v. Barnes plan, Graves report defects from which the is said to (Graves III), supra, suffer,23 we in particular note the incongru postponed day we therefore to another ity combining population fig 1970 total question troublesome “[t]he composition. ures with 1977 data on ethnic Chapman significantly whether modifies view, In our resulting Howell, calculation of the Mahan 93 S.Ct. [v. skewed; changes necessarily ethnic ratio legisla- L.Ed.2d standard 320] [for certainly product is not the “careful tively-crafted plans] in relation to court-or- substantial demographic analysis” upon Id., n.7. plans.” day dered of reckon- question might legiti arrived, the current ing having contemplate we now macy figures. of the 1970 census Graves issue of population deviation. See, generally, Transcript hearing of 1977 Transcript 1204, deposition *9 hearing of 1977 at 586-92, Taeble; testimony of Dr. Del see also Dudley Poston, of Dr. L. Jr.
569 Confronted, are, re L.Ed.2d at protection clause as we equal The proposals measurably with two nearly be of different legislative districts quires that deviation, we proceed vote under the Court’s person’s so that each equal population, approach, new relativist compare weight in the election may given equal be efficacy Sims, accomplishing legitimate of each v. su representatives. Reynolds policy. state Even assuming that the popu- from mathematical pra. Minor deviations lation deviation here approaches, if it does equality among state districts not occupy, judicially pro- the borderline of facie prima are to make out a insufficient deviations, propelled scribed we are onto discrimination so as to case of invidious equitable the road of discretion. require justification. Gaffney v. Cum 735, 2321, 37 mings, 412 S.Ct. U.S. policies One of the state purportedly (1973). legisla
L.Ed.2d 298 In case configuration served of the districts accounts for tively plans, enacted that rule present in the ten approximately percent, a is maintenance of threshold population integrity devia below which maximum subdivision lines. That the prima preservation facie con of such boundaries is to be of tions deemed Id.; readily a Regester, legitimate goal v. state we acknowl validity. stitutional White Howell, 315, 329, edge. minimis threshold Mahan v. supra. precise The de certain, is 93 (1973); but plans for is less S.Ct. court-ordered Adams, Swann v. that afforded S.Ct. plainly lower than are, however, Meier, L.Ed.2d We Chapman supra. apportionments. considerably policy less certain that scrutiny In a process giving strict accomplished in present better than the plan, Supreme Court has court-ordered proposed plan. The record indicates that of even a validity refused to assume the Id.; city transcends accord, boundaries deviation. Conner 5.9% times, no less than n.17, thirty-four carving Hal- Finch, at supra, tom into City districts, Arlington three at 476. L.Ed.2d into four. plaintiffs’ plan interrupts city slightly boundaries If fewer times.24 topic writing on its most recent there exists a state Finch, policy respecting Conner v. legislative apportionment, political boundaries, certainly it is no better a Mis- held that supra, the served present plan than equitable sissippi District Court abused which is proposed in reapportionment its stead. fashioning discretion population in absolute plan which resulted districts and A policy of 16.5% in Senate second
deviations said be served sure, present plan under the maintaining districts. To be 19.3% House iden This, too, would tifiable communities disparities of interest. population aggravated legis- see, we believe to guidelines legitimate goal, for be state offended even have e. g., Meier, Chapman although, and there- apportionments, supra, latively-crafted case, instant is far from apparent the current status fore tell us little about alleged mathemati- communities of interest purely rule as a the de minimis higher account for the absolute guidance new deviation But the proposition. cal inherent the- state’s considerations So far is that gain from Conner any record offers guidance here —and it statistically result policy state does not offer much —we as con- observe no basis “cannot be viewed offensive concluding other, present plan that the is supe less sta- trolling when persuasive offensive, proposed Instead, rior plans already devised one. we find tistically Conner, utterly conflicting regarding evidence even are feasible omitted].” [citations may 97' those interests 431 U.S. at be said supra, Transcript hearing of 1977 at 464-65. *10 communal. For a example, resolution state objective. That plan the more passed by the City Arlington Council of closely approximates goal is evident.26 entreats this court to the approve present But it is equally apparent that the record plan common recognition of the in- no contains evidence the plan’s higher that terest of the City Arlington contigu- of deviation factor is the result of an effort at This, ous cities. in the of a districting face compaction. We understand the law of re- parcels scheme City Arlington that the of apportionment permit a trade-off be- separate into four districts. If there is competing tween the aims of policy state here, policy at work we to perceive fail it. and population equality. legitimate Where policy only state can accomplished at the troubled, too, We are loose by the rather expense of population equality, then an oth- and ill-defined characterization of commu- degree may erwise of intolerable deviation nity interest that supposedly underlay become acceptable. But it is not enough to 1097, and, reference, House Bill cur- the merely plan demonstrate that a of higher rent The colloquy footnoted between deviation may happen to accomplish certain plaintiffs’ counsel and Representative Tom policy rather, goals; upon the burden the Schieffer, author of the plan, current is proponent of such a plan “to articulate illustrative.25 clearly the relationship the between vari- ance slightest and the We do not find in record state policy furthered.” interests, than Chapman, supra, of other suggestion those at S.Ct. at join these geography, might “commu- L.Ed.2d at 783.27 Indeed, readily ob- might nities”. commonality of interest
serve that is this fundamental failure of than goes no further among regions proof, Conner, under both Chapman and placement their within same which vitiates the defendants’ other state conclusory more than this district. Without policy claims as well. We accept propo intent, per- we are not claim sition that the maintenance existing state policy suaded that this element of member-constituent relationships justi is a any way palliates population a variance Weiser, fiable state policy, see White v. 7.7%. supra, at at 2352- compact repre 343-344, creation L.Ed.2d that it is a well-served under the legitimate present plan. sentative districts constitutes But we Now, then, interest, 25. communities Q. even more so because I think one tract you City would tell the Court what communities of Fort Worth exists in E. preserved your plan E, I, [sic], districts, interest were under In F H and I core that existed 1097? compromise think under were —were City Well, obviously, made in all A. I almost of Fort Worth think in Districts in — A, E, representing city. and D the inner C the communities of interest G, preserved were in toto. that’s east side Fort Worth and they you Arlington. the west side I Can tell me what are? think —I can’t Q. Well, district, provide A. in A remember it was to whether it was Richland Hills or Hurst, Euless, growth Hills, district Bedford and North Richland that area above Fort around in there. Worth. give Transcript City Arlington repre- hearing, B was to 836-37. sentative. give side, C was Defendants’ district south Exhibit Y. lower south side. proof It is on this element of that give exist- D was to west side Fort Worth a statistically ence aof less representative. offensive is so probative. Plainly, the existence of an alterna- E, E, In District what is District had tive policy efficacious in state primarily been a rural suburban district made terms, deviation, and less offensive in terms of up communities, of small and I think that destroys any claim that the furtherance of state primary consideration in draw- policy necessitates higher deviation. it, ing revised was made *11 legitimate policy. coherent and state any can be goal that not understand do adopt is, if accordingly plan We that which expense high of so only at the accomplished all, only marginally less effective im- at norm. This population from the a deviation interests, state plementing identifiable been, under has not policy element state significantly closer to achiev- which comes to necessitate “explicitly shown Chapman, equal apportionment. This goal ing embraced deviation the substantial to both as a obligatory, believe result we Meier, supra, Chapman plan.” principle, and as constitutional matter of at 783. at at equitable exercise of our of the product that cannot endorse We therefore that find We therefore discretion.' fully, however this limited ob- accomplishes, re- legislative plan for proposed v. Commissioners jective. See Robinson District County in Tarrant districting Court, 505 F.2d County, Anderson put should be into effect. 1974).28 (5th Cir. will be ORDERED. so both urged, we are
Finally, consider that equity, to policy matter WOOD, Jr., Judge, dis- H. District JOHN the present adherence continued sents. avoiding voter con effect will have the encouraging participation. voter fusion and districting of Tar- change in the
Another claimed, will work a dis it is County, rant APPENDIX process, and will upon the election ruption RESOLUTION inconvenience of operate the substantial imple responsible officials county those WHEREAS, Legislature, The 64th all changes. With menting any electoral Legislature, the 64th Acts of Chapter disagree. But we cannot these assertions legislative single-member established arguments we do not conclude that County; 32 in Tarrant for District districts over proposal the merits of one demonstrate other; instead, same they suggest, 1976, the WHEREAS, February On per rationale for decision that pragmatic for the West- District United States provisional relief once before. only mitted reap- an order entered District of ern n single-member those portioning It will ultimately serve no us one for encompassed County in Tarrant ignore districts constitutional norms in the name of Chapter through 32A Districts convenience and administrative inertia. 1975; and Legislature, the 64th not, Acts of District Court should in the name “[A] policy, providing state refrain from rem- WHEREAS, has in ef- That order been fully adequate edies redress constitution- and the fect since the date of issuance adjudicated al violations which have been in accordance were conducted elections Weiser, and must be rectified.” White v. Black and elections one plan, that supra, 412 U.S. at represent were elected to Republican one today L.Ed.2d at 347. Our conclusion districts; two of those that present districting scheme of WHEREAS, The repre- election of these County produces greater Tarrant popula- sentatives indicates that the embodied tion disparities than necessary effectuate ignore suggestion Indeed, policy justification. 28. We do not the defendants’ the fact tracts, that, single proposed easily virtue of shift in census defendant’s so variance can be might population any variance be reduced to reduced confirms the absence of ra- 671; Hearing Transcript of 1977 De- tional connection of state between the dictates 5.8%. fendants’ Exhibit 77-X. We simply policy configurations believe the and the higher figure deviation to be without sufficient part
32C. That in- cluded 42.02, 54.01, 54.02, census tracts partici- effective to broaden order is 55.01, 55.02, 55.03, 55.04, 56, 57.01, 57.02, 58, political processes; and pation in the 59, 60.01, 60.02,111.01, 111.02, part WHEREAS, in that The districts drawn of census tract Street, 47 South of Gambrell intent of with the order conform *12 part of that census tract 109 South of U.S. minorities, representation of ensuring the Highway 377 and South of Old Benbrook including population the Mexican-American Road, and that part of census tract 110.02 which is and County, separate of Tarrant Sycamore Road; of North School popula- minority from other ethnic diverse part 32D. That of County Tarrant in- County; and tions in Tarrant 22, 23.01, cluded in 23.02, census tracts 24.- WHEREAS, The drawn in that districts 01, 24.02, 25, 26, 27, 51, 52, 53,106.01,106.02, protect integrity order are effective to 107.01, and 107.02 part and that of census in of the various subdivisions Tar- tract 109 North of Highway 377 and of County, including city rant Fort Road; North of Old Benbrook cities, towns, surrounding Worth and the villages; and and part 32E. That of County Tarrant in- 5.01, 66, cluded in 6, 50.03, 67, census tracts WHEREAS, The districts in drawn that 101,102,104.01,104.02,105,132.01,138,139, closely order parallel districts drawn by 140.01, 140.02, part and that of census tract 727, Chapter legislature Acts 136.01 included in census enumeration dis- 1975; Legislature, 64th and 9A, 9B, 12, 14, 9C, 39, tricts and 39B and WHEREAS, part Changes that of census boundary in the enumeration district 129 121, North of Highway part lines of the districts drawn in State and that that order of census tract 141 would hinder enforcement of the included census enu- election 47; meration district laws of State of Texas charged those enforcement; now, therefore, be it 32F. That part of Tarrant County in- RESOLVED, by Represent- House cluded in 1.01, 1.02, census 2.01, 2.02, tracts Texas, of the atives That the house State 3, 4, 8, 9, 10, 11, 12.02, 16, 17, 18, 32, 33, 34, hereby approve of the districts 49, 50.01, 50.02, and part that of census 19, February drawn the court order of tract Road; 103 West of Haltom 1976, encourage and the United Dis- States trict Court for the Western District Tex- 32G. That part of Tarrant in- County order, as to existing make that which estab- cluded in 12.01, 14.01, census tracts 14.02, following districts, lishes the final: 14.03, 15, 35, 65.01, 65.02, 65.03, 65.04, 132.- 02, 133.01, 133.02, 216.01, 216.02, 216.03, and part County Tarrant in- 32A. That part that of census tract 13 North of the 130,131, 134.01,134.- cluded census tracts Texas Railway and Pacific part that 135.01, 135.02, 136.02, 137, 217.02, 02, census tract 65.05 West of Handley-Eder- 218, part of census tract that 65.05 East of ville Road and part of census tract 103 Road, Handley-Ederville part and that Road; East of Haltom tract of census 136.01 included in census enumeration district 129 South of State 32H. That part in- County 4,3, 121 and Highway groups census block 36.01, 36.02, 37.01, cluded in census tracts 5; 37.02, 38, 39, 45.01, 46.01, 46.02, 46.03, 46.04, 46.05, 61.01, 61.02, 62, 64, part
32B. That of Tarrant and that County part in- 115.01, 115.02, of census cluded census tracts tract 13 South of the 217.- Texas and 221, 222, 223, 225, 226, Railway part Pacific census 229; Street; tract 45.02 East of Bryan Leg- imprimatur
that time the of the islature and other branches part of Tarrant in- 321. That enjoys.1 After it now government 5.02, 7,19, 21, 28, in census tracts cluded in 1975 voluntarily H.B. 1097 was enacted 43, 44, 29, 30, 31, 40, 42.01, 45.03, 48.01, Legislature which the Texas eliminated 48.02, part and that of census tract 45.02 in the districts State after all multi-member part Bryan West of Street and that its Petition granted Court had Supreme census tract North of Gambrell Street. Supreme for Certiorari and after to this Court this case back had recertified WOOD,Jr., H. JOHN Judge, District dis- action had this State to decide if for us senting: “moot”, the rendered this case for clear- Bill 1097 House Texas submitted Forewarned other Court re- Act Voting Rights 5 of ance under Section majority case, versals of the very but *13 the United Attorney General undaunted, to the still this again Court sallies 23, 1976, the January By letter of States. forth into the thicket on another interposed Attorney General States United legislative reapportionment expedition. single-member district objections to the Again, majority this, Opin- latest contained three of the districts lines of ion, rhyme, reason, without logic, founda- District 32 of including Bill tion, House judicial precedent, fact or has maneu- here. which is involved County Tarrant absolutely degree vered an about-face completely totally and has reversed its Therefore, on Feb- this reconvened Court earlier decision in this approving case 9, 1976, time before the only a short ruary original State’s Plan under which the last elections, the three to consider April Texas elections were conducted. Two of the districts remaining districts. This erratic and inconsistent vascillation in the par- Order of by agreed resolved were case, this which has been before the Su- reached with re- compromise was No ties. preme Court for years, over six constitutes However, the County. to Tarrant gard another usurpation unconstitutional of the proposal with the forward did come State rights of sovereign State of Texas. The Court on Febru- by the adopted which was lame only argument made for this reversal rejected and thus this Court ary by my colleagues is they doubt that the the ma- which plaintiffs’ proposed plan plan, State up to this time has been prefers. now jority the Court’s approved plan, really fact plan State since it may impri- not have the which is now un- The State matur of the particularly State and originally was attack before this Court der Legislature. Texas Tom by Representative prepared by When this Court the 1976 adopted State’s and was endorsed Schieffer plaintiffs’ plan instead of the It delegation. on February Tarrant County 19, 1976, the State’s plan did not have at as State’s presented was to this Court See, g. White, D.C., jurisdiction e. Escalante whose final as a Court of Court adoption Litigants 1050. This Court’s are final and consistent. decisions not, plans making State Plan was in- affirmed the future inference for should Supreme heavy Court when volving this case was commit- returned to financial and business sorry ments, proposition this Court for a relegated determination mootness. to the be might has occurred to me I litigation Courts is de- comment the Federal on before case-by-case the fact that if the Courts a decision like continue take ticket and over cided manage reapportionment good trip this and this duties of ticket railroad adopt Plan, parties only. majority various States and trip should of this Court rely integrity Supreme should be able to on the decision of the Court submit to the directed, adopt fairness the U.S. Courts to proceed, main- to a determination as districting plans. tain well-considered Liti- issue. the mootness rely gants Supreme should able to on the MITTED BY
Plan PLAINTIFFS AND Attorney Governor and DE- FENDANT General. RESPECTIVELY IS UN- Both plans CONSTITUTIONAL. pro- stated, this February as On vide for a primary district which mi- proposed plan adopted the State’s Court nority voters constitute a clear majority.” County legislative by the Tarrant amended (Emphasis added.)2 dis- single-member as its own delegations County in Tarrant for District 32 trict Not does the Plan which was this appealed the plaintiffs and thereafter adopted as the Court Plan in our earlier Supreme sought ruling to Court decision now have the State’s legislative District Judgment of the Court. stay the and executive imprimatur, but enjoys also Lewis F. Powell referred Mr. Justice the stamp approval of all the democrati- appeal full Court cally elected City Council and other local 1, 1976 action of this on March and the governmental bodies within the things all affirmed. well imprimatur as the Court and the Supreme Court. This is the Thereafter, plan, the 1976 such under present existing plan upon which the State conducted under Texas were elections in of Texas and its local subdivisions have adopted by this Plan Reapportionment lists, preparing voting relied in precinct Supreme Court. approved by the Court and lines making expensive and in preparations *14 out a carry plan this Court has obvious, therefore, It is that when this heretofore held possess any “did not consti- plan adopted February Court the State’s on tutional infirmities”.3 19, (that 1976 is now in existence as the plan), plan Court the State’s did approved majority The gives service lip endeavor- the formal of the approval not have State ing to ascertain State policy and and other of Legislature govern- branches intent the of State as follows: ment, well as the local as other subdivisions “We course recognize our duty government in Tarrant County with respect state apportionment See, policy. existing which the now plan is endowed g., e. Weiser, White v. 783, 412 U.S. 93 will be demonstrated later. While the 2348, 37 (1973); L.Ed.2d 335 Whit some Court had reservation in 1976 as to Chavis, comb v. 124, 403 U.S. 91 S.Ct. plan whether not this had imprima- or the 1858,29 (1971).” L.Ed.2d 363 Texas, tur of State of particularly the of the Legislature, plan this was adopted but the cursory takes most reading this as one Court intended State majority’s Opinion findings de- any possible eliminate constitutional infirm- termine that its duty regard with to re- ities that had heretofore been raised specting apportionment policy State has plaintiffs or the Attorney General of the totally absolutely ignored. been United States and this Court agreed, own, adopting plan this the follow- Even if follow majority’s errone- 19, ing language on February 1976: ous that the finding plan defendants’ is not “The 1970 supplied Census data legislatively adopted approved or State Court as well as testimony adduced plan and microscopically examine the two hearing suit, recent in this DOES plans for policy indications of State NOT DEMONSTRATE THAT intent, EITHER legislative we must conclude that (I. E., OF THE TWO PLANS SUB- have defendants established the existence (Graves III), 2. Graves v. Barnes F.Supp. 408 F.Supp. (W.D.Tex.1972); 704 v. 343 Graves (W.D.Tex.1976) (3-judge court). 1050 (Graves II), Refer- Barnes (W.D.Tex. 378 640 opinion reflect, ence earlier perti- to this will 1973). part, history protracted litiga- nent of this also, (Graves I), (Graves III) Graves v. supra. Graves v. Barnes Barnes tion. See
575
Howell,
329,
315,
v.
979,
93 S.Ct.
U.S.
goals
legitimate
State
of identifiable
Adams,
(1973);
L.Ed.2d 320
Swann v.
present
of the
congruence
the closer
569,
in no
that considerable
Defendants established
an inconvenience
it was
practicability”
implementation
voter confusion followed
subdivisions
in Tarrant
single-member district
lines
conducting the elections
charged
1976 Order
as a result
ig-
majority
Legislature.
3,000
voter
Precincts with over
Court.
trial facts
undisputed
nores
*15
were com-
law
limit established
State
are even worse
persist and
same conditions
places re-
Long
polling
lines at
monplace.
the evi-
time. The Court overlooks
at this
simultaneously
were
sulted. Some voters
plaintiffs’
of the
adoption
dence that
the
Some
precinct.
more than one
registered in
integrity of over sev-
plan would affect the
actually filed
offices
for election
candidates
re-
County,
in Tarrant
while
enty precincts
The resolutions of
wrong precincts.
in the
not
taining
present
plan
the
would
Court
Arlington
of
City
of the
City
the
Council
charges. The
any
precinct
cause
additional
Council
Mayors'
County
the Tarrant
and
are,
course, the smallest
voting precincts
of more voter con-
probability
both cite the
subdivisions with which voters
political
on
disenchantment
fusion
and
voter
identify.
reason
plaintiffs’ plan
adoption
Supreme
The United States
Court recent
present
retain its
this Court to
ly has acknowledged the
possibility
using
precincts to draw legislative
Now,
districts. Con
single-member
place
districts are in
Finch,
nor
under our
and
previous
adopted
(1977).
Adoption
during
has taken care
plaintiffs’ plan also would
the integ
past year
over-large pre-
affect
to eliminate the
of the
rity
single-member district lines now cincts
to reduce the voter
confusion
existing
City
year
implementation
of Fort
that occurred last
on
Worth.
preservation
Avoiding
subdivision lines of those districts.
voter confusion
long
participation
and historical boundaries has
ac
voter
encouraging
been
is a
knowledged
legitimate
goal
retaining existing
Court as
State
disruption
rational and
districts
legitimate
goal.
Mahan
to avoid extreme
of the
fact
Legislature
instructed the
Chap-
leg-
acceptable.
enact
is
See
process
election
islation, or
if
suggested
even we had
(D.N.D.
Meier,
man
(and
sodo
1, 95
Federal Courts are required
1975)
remand from
on
give
the respective
every opportu-
States
4. Graves v. Barnes ture fails to do so. Board attacked that all of the conclude ing this Court majority in this case consisted of the Lt. Representatives, Sena- elected Governor, Speaker of the House Rep- tors, County Commissioners Mayors and resentatives, the Land Commissioner and well as members of the County as Accounts, the Comptroller of Public in their City guided Council are Arlington Board acted in this case under the advice petitioning this Court for official acts Attorney and counsel of the General of adopted plan Court approval again, concluded, Texas. Here the majority or are in the motives of discrimination “We have serious doubt that this Board did or acts adopting habit of official resolutions job contemplated a sort of deliberate conception or study, appropriate without Reynolds v. as worthy judicial Sims ab- I to make such an consideration. refuse stinence.”6 The obviously Court I assumption respectfully outrageous rejected finding of the majority in by all further that the endorsement submit holding that the Board’s actions in this re- who are concerned vitally these bodies apportionment case did constitute valid problem refutes reapportionment with this State action and the redistricting plans un- majority that there the contention majority der attack were affirmed in “a was a failure conduct studied keeping my Dissenting Opinion that approach process legis- thoughtful case. Second, plaintiffs apportionment”. lative majority
suggest, apparently past, At a time in the distant the test of agrees, required this Court is not State action seemed to constitutionality of heed to such clear intent pay any or depend on whether not it could be shown and mandate. arbitrary, was unreasonable that the action Mr. or As Justice Brandéis stat- capricious. result, plaintiffs and the urging this Young, of O’Gorman and ed in the case majority rely on somewhat simi- seem must presumption constitutionality pre- House, lar in Wallace v. 538 F.2d passage vail in the absence some factual founda- Cir., 1976). case has no (5th This overthrowing tion of record for the action.7 “single-member” reap- to this applicability Presumption also “The Constitution- See case involved here since the portionment 1136, (1931).8 31 Col.L.Rev. ality”, in that “the passage case complete legislative pref- heed to may pay no Court DISTRICTS”, AT-LARGE
erence FOR
After
the majority adopted the State
here), id. at
longer
no
involved
(which are
February
Plan on
rejected
1976 and
added.) See also East
(Emphasis
page
plaintiffs’ plan, all of which action the Su-
School Board v. Marshall.5
Parish
Carroll
preme
affirmed,
the majority in this
decision have now changed their minds and
1, supra, my
v. Barnes No.
In Graves
have
decided that
plan is
in this
also criticized
colleagues
very case
preferable. Why? Certainly not because
plan in 1971 because it
State’s
the entire
State’s Plan
unconstitutional since
product
not a
allegedly
the majority readily concedes that both
action,
was the action of a
but rather
plans
absolutely constitutional,
but
members,
one of
“Board of five
whom rather base their decision on the new and
*17
Legislature”.
is a member of the
Under
solely
“EQUITABLE
unheard-of concept
on
autho-
Constitution,
Texas
the Board is
(Emphasis
CONSIDERATIONS”.
added.)
Legisla-
if the
reapportion
rized to act to
is totally
This
contrary to the
holding
636,
5. 424 U.S.
96 S.Ct.
7.
L.Ed.2d 296
Young
O’Gorman and
v. Hartford Fire Ins.
(1976).
Co.,
51 S.Ct.
voters
effective
one of
is that
the only
marks
it is
goals
having
attained
process
occasion known to this Court when the one-
Courts
surrogate
for the
Federal
now time
man, one-vote
has been
principle
applied to
Democracy run
again
aside
let
step
a few districts involved in
only
the selection
course.
body. The nine
representative
State
from the
representatives elected
districts
Supreme
the beginning
From
only
will be
nine of
150 mem-
question
is sole-
reapportionment
recognized that
has
Representatives.
House of
bers of
determination, usually
matter for
State
ly
Tar-
adopt,
people
Whatever
we
and determination
Legislature,
the State
will
County
rant
find themselves in districts
appropriate
relief becomes
judicial
larger
that are both
and smaller than other
legislative
reapportion
intent to
when
State,
districts in the
which is
legislative
stan-
according to Federal constitutional
permissible
affording
guaran-
reasonable
is not
requirements
Reyn-
met.
dards
equal protection
tees of
voters of the
Sims,
533, 586, 84
olds
Regester,
entire
under White v.
(1964). In
1362,
ation
districts
ilar deviations.
E.
County
g., Perry
City
was 8.1%
v.
for
of Opel
Court
Jefferson
ousas,
(5th
515 F.2d
Cir., 1975)
639
(6.2%);
was 10%.
County
Nueces
Chapman Meier,
v.
(D.N.D.
THE for Tarrant reapportionment plan (Whit ELEMENTS.” trict POLITICAL OR legislatively aas Chavis, If, County is sufficient emphasis added.) comb to all the also conforms adopted plan, find unconsti- fact, does the Court reappor- for Court-ordered requirements judicial precedent. plan under all
tionment challeng- plaintiffs,
3. Since
ers, not their burden to es- have sustained Plan,
tablish the State’s also Plan, to unconstitu- adopted
Court’s be an *21 Plan,
tional it must be reaffirmed and rea-
dopted by this Court. response specific inquiry
4. Court, I find that the would now Reapportionment Plan in exist- would, therefore,
ence is constitutional THIS IS NOW MOOT.
HOLD CASE LEWIS, Plaintiff,
Harry AITS,
Meshulam RIKLIS and
Inc., Defendants. (CHT).
No. 75 Civ. 6220 Court,
United District States New
S. D. York.
Feb.
As Amended Feb.