*1 (1962), U.S.App.D.C. 100, F.2d 260 enjoined the Commis
in which the court conducting public pro certain
sion ceedings, clearly distin
but that case
guishable. There, complaint, verified
which named the Commission individual Commission, ers addition to made showing process substantial that due Here, complaint had been violated. only Commission; names it is verified; showing is no and there of a process. of due Cf. Securities
violation Exchange A. Commission v. R. Hol Co., U.S.App.D.C. 279,
man & F.2d cert. 375 U.S. denied (1963). L.Ed.2d unnecessary
It is to treat the other
points parties. raised my Findings
This constitutes Fact
and Conclusions Law. Fed.R.Civ.P. 52(a). preliminary Plaintiffs’ motion for a in-
junction must be denied. Defendant’s motion dismiss the com- granted
plaint prejudice without party.
without costs on either
Settle orders on notice. al., Plaintiffs,
William W. KILGARLIN et MARTIN, Secretary
Crawford Texas, al.,
the State of et Defendants.
Civ. A. No. 63-H-390.
United States District Court Texas, S. D.
Houston Division.
Feb.
Tony Korioth, Houston, Tex., plain- for tiffs. Mitchell, County Atty.
Charles F. Asst. County, Texas, Houston, Tex., of Harris defendants, for William M. Elliott and tine, E. Robert Turren Jr. Erwin, Jr., Austin, Tex.,
Frank Chair- man of State Democratic Executive Com- mittee.
Waggoner Carr, Atty. Texas, Gen. of Austin, Tex., for all State officials. Dorsey Hardeman, Angelo, B. San Tex., Dorsey for intervenors B. Harde- man, George Moffett, Crump, Louis Ralph Hall, Work, Grady M. J. P. Hazle- wood, Galloway Calhoun, Jr., Creigh- Tom ton, Owen, III, Frank and H. J. Blanch- ard. Moorhead, Austin, Tex., R. Dean for Myra Barnes, Banfield,
intervenors Ben Blaine, Crain, Crews, John E. Jack David Harding, Representatives of State of Texas. Wayne Gibbens, A. Forrest Having George Hinson, first round this Court and won the T. James L. Slider round in the Texas the second but lost Bill Walker. Legislature, plaintiffs return here for County Atty., Owen, J. R. Williamson now-typical reappor- round of a the third County, Georgetown, Tex., for defend- struggle. tionment ants and Dick Cervenka. Sam V. Stone Atty. whether, County Dionne, is not Paul H. of Pecos The issue now County, Stockton, Tex., for defend- how, reapportion Fort Texas for the election Hodges. Guenger Billy L. ants Walter Representatives. Plain of its House urge vigorously members Lattimore, tiffs that all (Bob) Dist. R. L. Crim. must, should, Atty., Allyn Zollicoffer, indeed the House Civil Admin- single-member Asst., Atty., districts. elected istrative Crim. Dist. Edin- press upon burg, Tex., Plaintiffs the Court their own for defendants Milton D. single-member reapportionment district Richardson and Julio Guzman. plan.2 plan Plaintiffs first offered their Holland, County Atty., Jack H. Hender- Legislature to the Texas in 1965. It was County, Athens, Tex., son for defendants rejected. Instead, adopt H.R. Lee and Mrs. Anna Bennet. ed House Bill 195 embraces a com Harney, County Atty., Naomi Potter plan single-member, bination multi County, Amarillo, Tex., defendants, member, and flotorial districts. Mrs, Lyle. Adams Ann W. M. plan Plaintiffs attack the of House Bill Joseph Ternus, County Atty., C. San grounds. 195 on various constitutional County, Sinton, Tex., for Patricio de- judicial But their ultimate thrust is for fendants A. William Schmidt and Velma plain- sanctions which would substitute Sherman. single-member plan tiffs’ Davidson, Houston, Tex., C. for in- H. Legislature’s only, for the plan of House Bill 195. combination tervenors, Taylor, Guthrie James S. Miles, Booth, John Wells Job. 0. Jr. Gibbons, III, Dallas, Tex., Patrick B. The Court holds that House Bill O’Donnell,Jr.,
for defendant Peter Chair- 195 does not violate the federal Constitu Republican man of the State Executive tion, except voting as it causes dilution of Committee. strength in the eleven flotorial districts. federally The Court declares the Bill un BROWN, Judge, Before Circuit constitutional as to the flotorial districts Judg- NOEL, INGRAHAM and District solely voting rights because it dilutes the es. living of those citizens such *7 permitted only who are to vote for one NOEL, Judge: District legislator. expressly But the Court re Preface jects plaintiffs’ contentions the com plan bination of House Bill 195 Plаintiffs ask this Court to con 195, an unlawful minimize abolish House Bill Acts of the 59th stitutes scheme to voting strength Legislature, Regular 1965, Session, c. of or to disenfran political reapportions1 chise certain racial and which House of elements. ******the sense, “apportions” Representatives “Apportionment,” 1. Har technical allocating County, solely process ris and “districts” Harris Coun refers of legislators ty among politi keeping three In into districts. several areas or usage, however, “districting” process subdivisions, common the total cal en while “apportionment” drafting be referred to of lines. will as tails actual district Representa opinion. Comment, Congress “apportions” Thus, in this See 72 Yale (1963) among states, L.J. n. 24. tives while the states by drawing actually “district” the con plan length This discussed at under Texas, gressional district lines. plaintiffs’ Supplemental of the section “apportions” “dis both Brief entitled “The Best Plan Rule.” See example, as in H.B. 195. For note 31 infra. tricts” positions present parties to substitute The Court declines The of all as Leg judgment its for that of the Texas well as amicus curiae are set forth composition preferable Appendix as to the “A.” islature configuration legislative districts, Court, At the invitation of the counsel injunctive prayed for is The relief de pretrial attended the conference held on Legis nied. The Court recommits to the July 28, companion 1965 in the case by August 1, accomplishment lature for involving congressional reapportion- job equalizing the votes 1967 the ment.5 the benefit of the Court’s With living flotorial citizens failing expressed, views there counsel prepared Representatives all which pretrial case, order in this which the large will be elected at as such districts approved September 9, Court on multi-member districts. pretrial specifies order the issues Proceedings for decision as: The Prior and Present (1) present proceedings are in con- Whether or not the July disparity legislative tinuation of instituted the suit between state dis- by tricts, plaintiffs. by In the some of created House Bill round, plaintiffs invidiously discriminatory, first attacked the state and de- legislative apportionment prives voters, statutes then certain citizens be- Repre- place in effect for as Senators well cause residence with- By summary judgment State, equal protection sentatives. en- January 11, 1965, laws, de- tered the Court in violation of the Fourteenth clared Article 25 and 26a of the Amendment to the Con- United States §§ Ann.St., Constitution4, stitution, Texas Vernon’s Bill so as to render House and the statutes enacted 195 unconstitutional. Equal thereunder to be violative particular Whether or not the Protection Clause the Fourteenth use multi-member flotorial dis- Amendment to the United Con- States tricts created House Bill 195 con- stitution. representation stitutes a scheme of grant plaintiffs’ The Court declined to minimizing has effect requests injunctive for relief and an oral cancelling voting strength out the hearing. jurisdic- The Court retained political racial and elements with- provided
tion and Legislature in the event the districts; so, in said and if does it enacted had not a constitu- deny political to those racial and ele- tionally legislative apportionment valid ments, equal protection law, by August 1965, plaintiffs scheme violation the Fourteenth Amend- might petition the for further ment to United States Constitution relief. Plaintiffs have returned for that so as to render House Bill 195 uncon- purpose. stitutional.
4. “Sec. 25. The State shall be divided into 3. Tex.Rev.Civ.Stat.Ann. Art. 193 tor; Representatives electors, such county shall be tory according titled to more than one Senator.” district shall be entitled to elect one Sena- Senatorial Districts of 1964); any apportionment “Sec. 26a. Provided (Supp.1964). county and no as nearly shall exceed Tex.Rev.Giv.Stat.Ann. single county to the number of entitled to or have unless the more than seven as may however, contiguous terri- seven be, shall be and each qualified hundred that no (Supp. under Art. (7) en- of 5. Bush v. permit any county to in which event such Tex. Jan. the conditions set forth above. sand the latest ulation seven titled to one additional shall thousand each one hundred thousand the most recent United States any (700,000) population (7) Representatives in excess Martin, district be created which would (700,000) people 5, 1965, United States Civil No. of seven county Representative F.Supp. have more 63-H-266, (100,000) pop- hundred thou- as ascertained Census; as shown except shall be en- 484. [*] * * Census, under than S.D. nor by ” particular hearing. (3) at the or not the oral Whether The issue will be incorporated districts created deemed to use have of been multi-member in the negro pretrial by cit- to 195 denies order House as follows: Bill guaranteed right as to vote izens their (5) not, Whether or once it is shown Amendment to the Fifteenth under the that the could have devised Constitution, so as United States apportionment an scheme a sub- Bill 195 unconstitutional. House render stantially range of lessened ideal, deviation from the and within the same particular (4) or not the Whether system by policy, established multi-member, and flotorial of mixture presumptively scheme is invalid and the by single-member districts created proof propo- burden of shifts arbitrary and an Bill 195 is House nents thereof. “crazy-quilt” capricious manner rationale, lacking reference, simplicity For the Court uncon- Bill 195 so to render House as (1) popula- refer will to these issues as: under the Fourteenth stitutional (2) gerrymandering disparity, tion United Con- to the States Amendment (which political into ra- divided and stitution. Negro disenfranchisement, cial), (3) (4) “crazy-quilt” apportionment, and bur- hearing evidentiary on An was held proof. Also, simplicity den of for presented 14,1965. The evidence October degree brevity, important much stipulations, depositions, consisted material, including elaboration tables, maps, charts, certified statistical views, placed Court’s has been copies nu- election statutes of the notes. states, No and election returns. merous person. Counsel witnesses testified jurisdiction pur The has Court testimony orally the essential summarized suant 2281 аnd U.S.C.A. Sections depositions. in the various contained continuing jurisdic and retains received and extended Trial briefs were subject tion of under matter 28 U.S. arguments were heard. oral 1343(3). spec C.A. Section The classes hearing, Shortly properly after ified before the Court and parties plaintiff, through sub- as well invited counsel to as those its Clerk aligned standing plaintiffs, have argu- mit briefs written additional sue. regarding possible remedies in ments find event should the Court import and Because of its basic critical H.B. eleven districts created in flotorial postured, plaintiffs’ effect on case as now Equal Pro- to be violation involving they “a characterize as what Clause, and therefore invalid. tection virgin law,” area of and ill-defined invitation, response to counsel for principles basic in- we first turn to the Supplemental Brief filed their volved Issue on directed to “new November considerations, Burden Proof well as substantive as Attorney remedial.” General will taken contentions Plaintiffs’ replied to this new brief on Decem- Texas Supplemental Brief. from their verbatim ripe ber The case is for now steps they outset, in three At the outline decision. proper for conception basis “the legislative reap- judicial review expansion plaintiffs’ Supple- of federal con- portionments in terms Brief to cover the issue mental new was immediately standards,” undoubtedly by objection occasioned stitutional an guide plac- plaintiffs’ made furnish their evidence thereafter defend- ants, ing proof, erection questions asked the burden the Court *9 15(b). regards arising Fed.R.Civ.P. The Court under the as one issue discretion, plaintiffs’ the full new beacon.7 Plaintiffs’ conten- unrevlewable or in terminology, Legislature tion is summarized at of then the end the has a 30% argument, range their minimis, follows: of as deviation which is de “ * * * presumption and that the summary, “In submit that Plaintiffs [of does not arise if the invidiousness] once is it shown that the is deviation less than apportion- 15%.” could have an devised substantially arguments later, ment scheme These will with be treated range lessened of from but here we deviation shall deal basic with the ideal, system principles plaintiffs’ theory the and within the same and involved policy, Leg- established the “that once State that that show the presumptively apportion- scheme is and islature invalid could have an devised proof range the burden of ment shifts to the scheme with a lessened of proponents again, ideal, thereof. Once the deviation from the the and within wholly system policy, Defendants have same failed established in proof.” presumptively burden of that the scheme is invalid proof pro- and the burden of shifts to the short, plaintiffs argue In is the it ponents thereof.” legitimize burden of defendants to and justify apportionment departures proof The of from issue the burden of has population squarely strict standard de not been unless raised in of the they minimis, recently reapportionment cases, do not out the set decided undoubtedly response, limits de disparities of de- minimis. because the in- argue per fendants “The dif- volved were basic invidious se. hence- But parties forth, questions ference on between the this issue the will decision disagreement likely comes down to a as the be more here refined. We are point presumption assaying constitutionality at which a in- a stat- passed express vidiousness arises.” purpose Defendants contend ute for the ranging complying variations in H.B. from requirements with the of the average average Equal above below Protection Clause. We should de- 15% are 15% Legislature’s important within question the limits of the cide this in- der work a dilution of relative individual vot- “2. stantial norm of se an invidious discrimination? ing power? Brief, pages 8, “3. discriminatory per se, “1. Does the rational state Excerpt partures in order to district percent cent would be whether considered de invoke discriminations commentators have county (For instance, (In (The affirmative, If review effect If the policy? departure range necessary corollary equal popular representation constitutional boundaries, from Plaintiffs’ from the norm were ‘major’ first regard, departure constitutionally permissible excess of the apportionment 9: is the would be insufficient minimis, if a inquiry the norm are as to constitute certain courts is it the deviation deviation from deviation in accordance with suggested departure is not review.) unconstitutional.) deviation supported by a in which case to this Supplemental answered fifteen scheme invidiously necessary so sub- inquiry per twelve were per- jus- un- per de- se 'burden sible den of tack question Deviation is tionment “Burden L.Ed.2d 506]: siderations the first lation tified; is fectuation of a rational some missible So viation is a mate considerations found limitation reaportionment not, intended basis of long ones), [533] to show that key point deviations principle proof three, are based and deviation and the on the other proof words * * Proof: (i.e., standard are make the act must ‘So rests discriminatory design, (ii) Reynolds opinion, departure [84 S.Ct. divergences relative to constitutionally permis- *. long it clear that on from decisions rational state The constitutionally per- (emphasis supplied) incident (i) scheme under at- review as.’ These words hand, Legitimation quoted based legitimate divergences 1362, 1391, in fall.) the defenders placing such concern from a strict state equal-popu- analysis if on terms text are policy.” appor legiti- policy bur- con- de- ef- *10 414 evidence, statutory going evidence, procedure, and of the forward with
volves
accurately
presumption
more
relates
to
construction.
persuasion. Affirmatively
of
burden
Reynolds, supra,
nor
neither
stated,
persuasion of
it is the
of
burden
Sincock,
695, 84
Roman v.
377 U.S.
S.Ct.
unconstitutionality
party alleging
important
(1964),
1449, 12
620
L.Ed.2d
negate
of
of
to
the existence
statute
authority, did
Court have
recent
of
which
sustain
state
facts
would
Hearing
question.
it
before
this
constitutionality
legislation.
reapportionment
are
lawsuits
of
decision
Kentucky, 309
Madden v. Com. of
U.S.
by
governed
of
time-honored rules
83,
(1940).
406,
60
to vote for state
is un-
interprets the
The Court
fore
constitutionally impaired when its
Court,
going language
Supreme
of the
weight
is in a substantial
opinions
fashion
in
read
context with the
when
compared
diluted when
with votes
applicable
from which
taken
it is
living
parts
of citizens
in other
guide
principles,
providing
as
basic
Reynolds
Sims,
the State.”
v.
placing
proof in
lines for
the burden of
(Em-
at
U.S.
at
S.Ct.
1385.
any
reap
legislative
this or
other state
phasis added.)
case,
portionment
as follows:
long
divergences
“So
as the
from a
(1) One who attacks the federal
population
strict
standard are
constitutionality
based
apportion-
of a state
legitimate
prove
on
considerations incident
that
ment statute must
weight
vote
an individual’s
to the effectuation of a rational state
legislators,
compared
state
when
with
policy, some deviations from the
living
parts
in
votes
citizens
other
equal-population principle are con-
State,
in a
of the
has been diluted
stitutionally permissible
respect
substantial fashion.
apportionment
to the
of seats in ei-
or
ther
both of the two houses
aof
(2)
attacking party,
such
legislature.”
bicameral
Reyn-
state
plaintiffs,
clearly prove
as
would
Sims,
olds v.
377 U.S. at
if
substantial dilution
the deviations
at
S.Ct.
1391.
magnitude
were shown
be of such
“
**
*
policy
justify them,
that no
could
which
proper judicial ap-
[T]he
per
concept
is a
se.
invidiousness
proach
whether,
is to ascertain
under
particular
existing
circumstances
(3)
attacking party,
If the
leg-
the individual State whose
plaintiffs,
such as
cannot or does not
issue,
islative
at
per
prove
se, then he
invidiousness
has
there
been a faithful adherence
divergences
prove
must
that the
from
plan
population-based repre-
to a
population
a strict
are not
standard
sentation, with such minor devia-
legitimate
any
on
based
consideration
only may
recogniz-
tions
occur in
ra
incident
the effectuation
ing certain
that are free
factors
policy.
tional state
any
from
taint of arbitrariness or
attacking,
Sincock,
person
Roman
so
discrimination.”
plaintiffs,
prove
at
at 1548.
such as
U.S.
order
practical
impermissible
“We realize that
it
is a
minor deviations
would
legislative
arrange
impossibility
proving
do so
that such deviations
arbitrary
has an
districts so that each one
were
discrim
therefore
residents,
inatory
upon
or
identical number of
because based
factors
ques-
carry
law
such a
must
the burden
show-
is called
fication
such
law
ing
upon any
reasonably
tion,
can
does not rest
reason-
if
of facts
state
conceiyed
basis,
essentially
arbitrary.
it, the
able
sustain
ex-
be
would
”
*
**
78-79,
the time
31 S.Ct. at
of facts at
of that state
istence
must be assumed.
was enacted
law
assails
classification
One who
any weight,
more,
weight
justified
on
could
ground.12
district
in the state
vote
smallest
rational
constitutionally
defective,
would be
Plaintiffs’
contention
fact;
per
is,
se.
invidious
minimis
population
a de
above
deviation
However,
equality
opinion in
final
figure
exact
*12
by
reapportionment
group
the
presumption
the
decided
of unconstitution
raises a
authority.
day
Reynolds
Supreme
ality,
same Court on the same
Court
lacks
refining
helps
page
language quoted
579 of must be considered.
It
teaching
1391,
Reynolds.
upon
In
v.
page
the
of
Lucas
Reynolds,
84 S.Ct.
Forty-Fourth
Assembly
they
support
of
rely,
their asser
General
State
not
does
1459,
Colorado,
713, 84
of
377 U.S.
S.Ct.
tion of
dictate.
its
challenged
(1964),
then it would come within
tionally permissible
concept Lucas,
palpably arbitrary
exercises which
operating
presumptions
can be
under the
favor
declared void
usual
* *
Metropolis
sustaining
Amendment
the statute.
Chicago,
City
Theater Co. v.
reviewing court de
If the
61, 69-70,
441, 443,
in a
termines
of deviation
that the ratio
(1913).
L.Ed. 730
apportionment statute is not de
state
Indeed,
permissible
in this area of
devia-
minimis,
hand
but on
other
it deter
tion,
presumption
of invidiousness
mines
such
does not cause
deviation
for which
does not ex-
contend
per
presump
se, then the
invidiousness
ist.
constitutionality
tion
will
its
be the
adjudication.
People
postulate of
contrary,
pre
“On the
*13
is
O’Neill,
of
York
359 U.S.
enforcing
New
v.
State
sumed that the
its
state
1,
564,
(1959).
79
585
S.Ct.
3 L.Ed.2d
policies
local
conform its re
will
* * *
quirements
guaran
Federal
to the
“It
is
maxim of con-
a
point
tees. Doubts on this
are to be
legislature
stitutional
that a
is
law
of,
against,
resolved in
and not
favor
presumed to
within con-
have acted
n
Corporation
the state.”
Comm. of
limits, upon
stitutional
edge
full knowl-
431, 438,
Lowe,
Okla. v.
281
50
U.S.
facts,
pur-
of the
and with the
(1930).
397, 399,
S.Ct.
L.Ed. 945
74
pose
promoting
of
the interests of
people
whole,
the
a
and courts
as
A federal
does not
court
sit
a
duly
lightly
will not
passed by
hold that an act
reapportionment
superlegisla
as a
case
legislature
the
was one in
presumption
ture.
of
The
constitution
the enactment
it has tran-
of which
ality with which statute comes
a
a
before
power.” Atchison,
scended its
T. &
court for review bars the Court from
Matthews,
S. F. R. Co. v.
174 U.S.
lightly choosing
reading of the
that
stat
96, 104,
609,
19
43
909
S.Ct.
L.Ed.
it,
ute which will invalidate
over that
(1899).
Flemming Nestor,
which will save it.
v.
603,
1367,
363
4
U.S.
80
L.Ed.2d
S.Ct.
presump
to the
addition
(1960).
1435
validity,
presumption
tion of
of rea
statute, Salsburg
sonableness is with the
are not
in a
here
Defendants
Maryland,
545,
v. State of
346 U.S.
74 position
justify
having
of
the constitu
280,
(1954) ;
and this
S.Ct.
L.Ed.
tionality
plain
195,
of H.B.
but instead
contrary
presumption
until the
continues
tiffs must demonstrate that defendants
beyond
doubt,”
is “shown
a rational
explain
provisions
cannot
on
ra
its
Inc.,
84,
Darlington,
F. H.
91,
A.
U.S.
ground.
Supreme
tional
theAs
Court
141,
(1958),
122,771 1to 2.26 + 92.2% x 76,204 20F Brazoria * 40,527 Ft. Bend
116,731 to 1 2.13 + 82.8% x Grayson 73,043 32F * 41,247 Collin * 5,878 Rockwall
120,168 2.21 1to -i- 88.2% x 150,091 36F McClennan * Coryell 23,961
174,052 3.20 to + 172.5% x * 94,097 38F Bell 35,044 Williamson
129,141 + 2.37 to 102.2% x 212,136 40F Travis * 9,265 Burnet
221,401 4.07 to 1 + 246.7% x 221,573 46F Nueces * 30,052 Kleberg
251,625 4.63 to' + 294.0% x 151,098 48F Cameron * Willacy 20,084 * Kenedy * 8,609 Brooks
180,675 3.32 to 1 + 182.9% x Taylor 101,078 62F *16 * 19,299 Jones * 11,174 Haskell
131,551 2.42 to 1 + 106.0% x * 90,995 69F Ector 13,652 Winkler * Loving * 17,644 Reeves
122,517 2.25 to 1 + 91.8% x 156,271 Lubbock 77F * Crosby 10,347
166,618 3.06 to 1 + 160.9% Average Percentage of Deviation + 147.3% x comprise representative Denotes “dominant” counties which also themselves another state » district. * only “appurtenant” representative counties whose citizens one district. Denotes vote state equal Kleberg County should residents The two ex- sustains this contention. amples below from H.B. 195 discussed _(30,052). the total 0£ approximately % * population disparities pres- illustrate (63,864) flotorial ent these districts. Representative to necessary to elect one is self- Representatives. It of the House example Dis is first potential of the value evident greatest popula 46F which has trict County Kleberg of votes of the residents challenged tion of the variation eleven 46F, instead equals of District not composition % of District districts. County, with a 46F includes Nueces °f total only equals Kleberg population 221,573,22 % (251,625j County, population of 30,052./ necessary Representative to elect the sole County, which Nueces alone constitutes Thus, they the vote for can Kleberg places whom vote. 45 and District receives three County is diluted therein, of a resident to as the “domi will referred weight only has of the county.23 County, so that it Kleberg nant” which 25% ideally that it should have. representation any no district has 46F, other than will be referred 20F, example District The second is C_the 251,625 “appurtenant” county.24 The disparity population the least which has four inhabitants of the two counties elect challenged districts. The of the eleven Representatives, in Inasmuch as the all. composition includes 20F District average population an district ideal or County population of Brazoria with a argue 63,864,25 in Texas is defendants County 76,205 with a and Fort Bend 251,625 people Kleberg and that the 40,527. County, population of Fort Bend Rep Nueces Counties combined elect four resentatives, repre- county, “appurtenant” no has Rep and thus is one there Dis- other than sentation district every 62,906 persons. for resentative County, the “domi- 20F. Brazoria trict average overrep mean the This would county, District nant”. alone constitutes resentation is the four districts.26 1% place, so the is one allocated total, This this conclusion is correct. 116,731 two counties inhabitants these problem analysis approach does Representatives, in all. The elect two correctly, of this however. The ratio 20F, thе ratio of this district to District populous State, district, the most State, populous in 2.13 to 1. least populous, District least Although ratio of this is the lowest population 4.63 to 1. The of 46F deviates eleven flotorial such of the 63,864 by This from the mean 294%. Reyn- per under ratio is invidious se egregious Additionally, disparity. is an population 20F deviates olds. The (cid:127) Kleberg voters in the situation 63,864 by from the mean +82.8%. county County, appurtenant in this Although the votes of the residents district, emphasizes extreme dilution County approxi- equal Fort Bend should by H.B. 195 46F. necessary effected in District mately to elect total % votes, only population 30,052, Representative, they equal %, With one Population figures official which does not have sufficient United *17 Representa- Bureau entitled to at one States Census statistics. to be tive, least dis- in a flotorial which included purposes opinion, 23. For of this the Court trict, representation in and which no has county defines “dominant” as one which any other dis- district than flotorial its population “more than sufficient has trict. Representa- to one or more be entitled Dividing tives,” population is included in a flotorial dis- 25. 1960 Tex- which represented additionally trict, 9,579,677 of by creat- as the 150 districts yields average in a district other than the flotorial dis- ed H.B. 195 an or ideal 63,864. trict. district purposes opinion, 24. the Court 26. note 68 infra. For See “appurtenant” county an as one defines merely and thus have of their of Texas and Constitution of 50% proper Although percentages prior history notwithstanding. value. The vote vary, similar approximately dilution exists in the re- citizen must be maining districts,27 equal weight nine flotorial to that of other average being State, Reynolds Sims, deviation for the eleven citizen v. supra, “approximate and is not +147.3%. 50% Honsey Donovan, equality.” See The dilution of the value of these votes (D.Minn.1964), F.Supp. par- and “appurtenant” counties such as page ticular at As is demonstrated Kleberg 20. equal pro- Fort Bend denies by footnote, valid flotorial districts can tection of the law to the citizens who pursuant to said “appurtenant” reside be created Texas in these counties impermissible any ground, apparent and is on 26.28 And as should be Section supra. 27. Note 21
28. The following example Court will utilize the one method to illustrate creating requirements satisfy Equal a flotorial district which would Protection Clause and Article As com- Section 26 of the Texas Constitution. posed example, styled County, A, under the Bell would receive one as District representative; styled combined, Williamson, Milam, Robertson, and Palls Counties B, representative; as District A B would receive one and Districts combined, styled representative. P, District would receive an additional chart below indicates the result. OP NUMBER DISTRICT COUNTIES REPRESENTATIVES POPULATION 94,097 A Bell 35,044 B Williamson 22,263 Milam 16,157 Robertson 21,263 Palls
94,727 94,097 P BeH 35,044 Williamson 22,263 Milam 16,157 Robertson 21,263 Palls
188,824
Analysis average 63,864 191,592 Ideal x district 1. Population A, B, 188,824
2. P of Districts 2,768 3. Total deviation 2,768\ / -— Average deviation/District 922\ pp.nt / Pfir flevinf.irm/Disf.ripf: 1.4% 63,864 j V method, course, requires proper view of the that each citizen’s vote weight. County proper The voters in Milam rеceive its should be able to representative, they = could: one-third of a elect + 22/94 22/188 66/188 County 1/3; in they should be able elect one and Bell one-half or representatives, voters Thus, = -(- could: 94/188 94/94 282/188 1%. respects. emphasizes be valid in all .The *18 this flotorial district would Court only, any foregoing example feeling that opinion which the an does indicate or Legislature compose any particular Court as to how the should of this far, Pertaining F. Bill No. thus the Mutscher to House said has been from what 195,” to as the unconstitutional which we shall refer not hold to does 3, report” “Mutscher and treat as the Com- portion Section of Article that Texas, report, mittee since no formal Committee of the State Constitution report appears of flotorial as such to have been the creation authorizes which deposition printed. fact Mutscher and find as a does The Court districts. (a) report provide that the most reliable evidence a matter law conclude as and by composition such in the as to what was done flo- record numerical Legislature, why, preparation Fourteenth and in the violates torial districts composition Amendment; (b) such H.B. voting strength dis- in such dilutes so why report explains The Mutscher which to cause discrimination tricts as necessary Committee found it to use (c) per se; that Districts and is invidious districts, flotorial computation and it their reflects 48F, 38F, 40F, 46F, 36F, 15F, 20F, 32F, popula- deviations 62F, invalid. are therefore and 77F 69F popula- from tions in such districts leaving the flo- our review of Before example, For tion of an ideal district. further find that torial we they says Mutscher consist of Chairman composition upon one more than is based of more “two districts with deviation years precedent in Texas. * * * hundred than Both- are 13% 10%. also, that discrimination which And population.” The below the ideal record though be, occurs, results invidious is barren of indication that attempt by Legis- good-faith from a House, anyone else, Member requirements of the lature to meet the thought at that time that the Committee Constitution, federal Constitu- computations were incorrect. Since the tion, and Court. This is evidenced this using was deviation Committee 15% 195, by legislative history of H.B. standard, from ideal district as its deposi- most which is contained computed having and all districts so met taken tion of Honorable F. Mutscher G. standard, apparent it is by introduced in evi- defendants and differently flotorials would have been by dence, Ex- as their first had the Committee constituted and by defendants as their hibit 17 and then deviations realized that Chairman of the Exhibit He was computed should be these districts Congressional Legis- and Committee on found this Court. deviations extensive lative Districts which conducted computed these when as this districts hearings undertaking to before write they be, Court finds should were unin- the Bill. anticipated. tended and not dep- to Chairman Mutscher’s Attached composition osition is an extract the House To further test Journal, pages considering Representatives 3502- districts and in these May 31, remedy Court, 3505, adopted by under date of 1965. It is to be this wе hypothesized “Remarks the Honorable G. have them as multi-member entitled suggestion district the future. Neither is it a area of Texas be apportioned in this manner. type precedent It should be noted that this of flotorial district has historical days. See, example, from Texas’ earliest the 1850 statute Gillespie 43, and constituted District in which Comal Counties Bexar and 44, constituted and the four Medina Counties District counties combined con- examples (flotorial) District 45. Other stituted that statute of flotorial representa- separate, all constituent counties had additional statute, supra. note 3 and 9. See Under the 1853 addi- tion are Districts 11, 14, 25, 58, supra. examples tional are Districts and note 20 Under the supra. examples 30, 33, statute, There are Districts note (15, (9); 72); examples under the statutes of 1875 (38 60); 64, 70, 72); (38, 59, 127); (13, 17, 24, 48, supra. (15F), note 20 and 1951 *19 424 compared they their deviations for all districts remain as
districts
would
now
remaining
and ratios as multi-member districts with'
exist
districts. And
plain-
their deviations and ratios as flotorial
this leads to our examination of
charges
hypothesized,
population disparity
districts.29
the maxi
tiffs’
So
remaining
from the
district
mum deviation
ideal
districts.
would be
occur
Districts
13.3%
Remaining
B.
Than
Other
40F; and,
pop
15F
ratio of
Flotorial —
Districts:
populous
ulation
most
flotorial dis
populous
trict
to the least
district of
original brief, plaintiffs predi-
In their
1
H.B.
would be 1.21 to
and occur m
unconstitutionality
cate
of the re-
62F.
District
maining
primarily
on the 26.4%
range
By
comparison
popula-
maximum
deviation
schedule con-
range
tion. This maximum
tained
footnote 29 with the one in
extends
Appendix “C”,
plus 11.6%,
minus
as re-
is seen that
if the
to a
14.8%
presently composed
lated to the
ideal dis-
flotorial districts as
range
were treated
trict. Plaintiffs
as multi-member districts
assert
to be
remaining
unreasonable, unnecessary,
districts were left
and invidi-
ously
presently composed,
range
discriminatory.
they
authority,
the maximum
As
Reynolds
Sims,
of deviation would remain at
cite
U.S. at
377
26.4%
population-variance
(1964);
and,
re-
ratio would
Treated as Multi-Member District
Population
No. of
Ratio to
*
54,385
Representative
Rep’s.
District
Per
Deviation
_
61,385
15F
2
1.13
3.9%
58,365
2
20F
1.07
8.6%
-
60,084
32F
1.10
5.9%
—
58,017
36F
1.07
9.2%
-
64,570
38F
+
1.19
1.1%
55,350
40F
1.02
13.3%
-
62,906
46F
1.16
1.5%
-
60,225
48F
1.11
5.7%
-
65,775
62F
1.21
+
3.0%
61,258
69F
1.13
4.1%
-
-
55,539
77F
1.02
13.0%
* Population
district under H.B. 195.
of smallest
*20
language
appear
average (which
Thus,
of our
it would
that
the real dif-
ideal)
be,
parties
ference between
as to what
deviations
the
the
case would
per
plaintiffs
se.
in
words of
“de minimis”
held to
invidious
the
were
be
or
in
what
the words of defendants is
general
say
if
that
Defendants
in
Legislature’s
“within the limits of the
population disparity is
manifest-
not
”
discretion,’
is the
‘unreviewable
de-
is,
ly
it does not
unreasonable —that
if
gree
district,
of deviation from the ideal
manifestly
invidious discrimi-
constitute
is,
that
whether
or 15%.
4%
language
(in
nation —it is
of defend-
briefing)
might
of
“within the limits
ants’
Until
later elucidation
come
Legislature’s
Supreme Court,
discre-
unreviewable
from the
the Court
in
say
Specifically,
Fortson, supra,
that,
tion.”30
defendants
that Toombs v.
said
for
disparities
Georgia,
population
of H.B. 195 are
it would “base
test as to
permissible
within
limits and that
the reasonableness of variances on the
departure
figure
apportionment
require-
plan meets the
In other
15%.”
Equal
Clause, words,
variance
Protection
above
would
ments
15%
they
additionally,
express
regarded
the view
per
by
be
as invidious
se
plus
and minus deviations
since
regard
Toombs Court. We do not
from the ideal
and
are less than
15%
authority
holding
Toombs as
for
either
range of such deviations are less than
range
of deviation in this case
30%,
manifestly
such deviations are
rea-
per se,
that, being
is invidious
or
less
sonable
therefore not
reviewable.
30%,
manifestly
than
it is
reasonable.
Defendants,
course,
dispari-
measure
Perhaps
it would be more convenient
by
ties
these deviations.
plaintiffs
for
and defendants
if
this
using
term
While
“unreview- Court were to
a
set maximum limit for
discretion,” plaintiffs generally
able
ac-
variance,
reasonableness in deviation or
knowledge that a deviation of
is de
4%
But,
was
in
done
Toombs.
in view
minimis and therefore will not be no-
(a)
good response
by
made
reviewing
ticed
court. Without
to the Court’s first order
adopting
either defendants’ label
un-
(b)
case,
entered
this
the lack
plaintiffs’
or
reviewable discretion
label
any necessity
doing so,
for
the Court
minimis,
de
it would seem that
will not set such maximum limit at this
plaintiffs
the view
both
and defend-
time.
degree
ants there is a
of deviation which
reviewing
court will consider mani-
By pleading that this Court de
31
festly
per
plan
se.
reasonable
reasonable
clare Senate Bill 318
to be the
Colegrove
Green,
549,
(1965);
Brown,
Sep.
30.
v.
328 U.S.
66
Silver v.
Cal.S.Ct.
1198,
(1946);
1, 1965,
Cal.Rptr. 308,
Bain
S.Ct.
Bill
accompanying
was
Professors
See note 18
Hagard
Luther G.
and Samuel B. Ham-
text.
inter
provision must be
This
free
ognizing
that are
factors
certain
order to deter
dis-
preted
Court
arbitrariness
taint of
Sincock,
аny,
Roman
necessity,
for accommo
crimination.”
if
mine the
1458.33
at
at
requirements of the
dating it
to the
This involves
Constitution.
federal
in which
Plaintiffs cite no case
law,
research
question
but our
of State
range
of deviation
total
comparable
point. The
no decision
has revealed
to the
12.7%
26.4%
satisfy
here,
command
in
its own
did
must therefore make
issue
Court
Diligent
Reynolds,
dis-
research has
terpretation.
no such case.
closed
explanation of H.B. 195 and
In
following
judicial approach of
policy
effectu
it is claimed to
the State
Roman, supra,
will
this Court
bear
ate,
offered
evidence
defendants
teaching of
the further
the Su
mind
Attorney
opinion
copy of
Gen
Reynolds
page
preme
found in
*22
May 1965, addressed
of Texas dated
eral
U.S.,
page
of 84 S.
at
1391
377
Repr
Speaker of the
the
House of
to
long
Ct.,
as
that “[s]o
to the effect
binding on
esentatives.35 While not
divergences
popula
from a strict
the
* * *
Court,
opinion
legiti
such an
is entitled
this
on
tion
based
standard
Coll,
Perry
weight.
Larson,
to
considerations
the ef
mate
incident
to
v.
of In
policy
state
[are
fectuation of
rational
Revenue,
(5th
claims of and argument Another in contained mandering is discussed later. proceeds recog- later brief from a candid Returning deviations, consideration of the nition that to our certain which in Supreme language they categorize population ra- variance Court deviations and - heavily rely “minor,” may plaintiffs justified by H.B. as tios of con- extensively stitutionally permissible, upon quote from Calkins rational State (E.D.Mich. policy, necessarily Hare, F.Supp. pol- if v. related to that Representa- Opinion 423, supra. Opinion, p. General’s was followed and the See pp. report at 431-434 Mutseher testified is to same effect. tive Mutseher Attorney preparing H.B. that any particular dis- argue to delineate icy. decision Plaintiffs two instances necessarily all other affects they ap- trict deem minor deviations which ultimately. plan, State, Plaintiffs’ (obviously) arbitrary parently there- explained preparation of justified by policy. which Plain- not such fore year Monograph, to com- say took a are tiffs such minor deviations out, points an because, “when plete as it “tainted.” string hypothesized districts initial rely Supreme upon Plaintiffs region inadequate through pushed an language Roman, Court contained fragment corner, back- into a supra, times referred numerous necessary] tracking find com- [was there, opinion. Court, used adjustments com- pensating on diverse it, plaintiffs word “taint” * * bearings pass Professor they postulate rule.” what call taint “the “ * * * explained Hamlett concept But we find no new in the so- indulge necessary consider- [was] opinion taint rule. called We are of the County” surgery on be- Brazoria able Supreme in Roman the sim- “ * * * situ- is [another] cause here restating ply noun used the “taint” in situ- the mechanics of the ation where elementary of constitutional rule deviating from our our ation necessitated having law, classification an ar- possible to as desire to adhere much county discriminatory bitrary and therefore * * *. blocked lines [W]e Equal basis violates Protection corner.” Hamlett into the Professor argument Clause. This will be evaluated colleagues “compensating ad- used his justments” elementary by this rule. developing plan, plaintiffs’ ground upon The main factual which such accords with a rational rely Reynolds Sims, policy. the so- at demonstrate taint of called H.B. concerns percentages deviation, ratios or in their did the same controlling ap- are the criteria integrity attempt county to maintain portionment decisions, but instead con- permissible deviation. within limits of They argue numbers. Dallas cerns *24 cross-examination, In his Chairman County, 951,527 with a explained Mutscher solution “patently” Representatives entitled to 15 general- these differences. testified He argue Further, they ly instead of cases had “that tolerances some metropolitan County adjusted in favor should have received 11 be Bexar way.” They Representatives and sometimes the other rather than 10. areas that, County, arithmetically, As Dallas testified show addition he working delegation Representative and would “After with the district each they trying accept perfection, almost achieve the advice that mathematical pass they us, it would had to on to that the and that almost eliminate felt figure.” Thus, in these districts. was a whatsoever fourteen reasonable deviation plan, query, possible preparing its ‘ra- en- Plaintiffs “What constitutionally permissible substantially prob- and countered same tional’ Leg- prevented prepared policy of the Texas lems encountered those who giving plans approved by plaintiffs, districts] [these islature * * * solving representatives popula- problems about went these [their] way. much same tion demanded?” evaluating purpose For further in their contained answer is argument concerning claimed evidence, Foundation Arnold own underrepresentations overrepresen- Monograph,37a that district shows tations, they ing process have mechanical been tabulated in Table is a supra. 37a. Note 31
430 below, comparison plaintiffs approve, 1 of which tabu- certain un- tions derrepresentations overrepresenta- in Table as follows: lated
Table 1 County Complained District Plaintiffs Over- Under— % %
representation representation 22 0 Harris 7.0 33 Dallas 0 7.0 57 Bexar 0 8.0 Percentages taken from Plaintiffs’ No. 4. Exhibit
Table 2 Approved by Plaintiffs Proposed * ** Proposed *** County Plan Plaintiffs’ PARC “A” “B” PARC Representation Representation Composition Representation District Over Under Over Under Over Under Gregg 33 0 8.7 96 Medina et al. 6.9 0 17 Van Zandt 10.8 et al. Bandera et al. 9.6 Van Zandt 10.8 al. et Potter 9.6 * 11, pp. 12, Monograph Plaintiffs’ Exhibit Arnold Foundation B. ** 14-1, McCleskey deposition. Exhibit of Plaintiffs’ Exhibit
***
14-1,
McCleskey deposition.
Exhibit 1 of Plaintiffs’ Exhibit
percentages
underrepresenta-
plans
The three
referred
Table
complained
tion
plaintiffs,
Districts 33 and
which find such favor with
prepared by
experts
57 H.B. 195 as shown in
conspicuously
Table
are were
in the field
*25
percentage
government, working
less than the
in the
at-
calm
underrepresentation urged by plain- mosphere
pursuits.
of their academic
Gregg County
tiffs as
for
work
constitutional
was tedious and extended
T.heir
(their proposed
33)
long periods
over
District
under their
of time. Even with
2;
plan
and,
per-
preparation,
experts
as shown in
such
in
Table
the
care
these
centage
overrepresentation
necessary
found
taining
in District
it
to create districts con-
substantially
(6.9%
underrepresentations
22 is
pared
the same
com-
and over-
urged
7.0%)
by plaintiffs-
representations
magnitude
as
with
of the
set
forth in
"constitutional for Medina and other coun-
Table 2. The Court
finds
(their
96). Also,
testimony
proposed
experts
ties
the
District
and in
these
percentages complained
product,
their
as
as
well
in the testi-
mony
Mutscher,
of Chairman
three H.B. 195 districts are substantial-
a reason-
explanation
justification
ly
plaintiffs find
able
less than those which
for
plaintiffs
“A”
minor
in PARC Plans
deviations which
constitutional
here
complain,
22, 33,
in Districts
in Table
and 57.
“B” for the counties shown
“nearly
testimony
prac-
to
undisputed
tionment
be
as
as
Other
offered
plaintiffs
ideal,
by plaintiffs
to the
which
No.
ticable”
extrapolate
which concerns District
plan
22,
County, supports
con-
into their best
this
rule.
Harris
testified
Mutscher
clusion. Chairman
argument
This
not com
does
22 as
about District
follows:
magnitude
plain of the
of the maximum
explained to
No. 22 was
“District
average range
deviations, or of
or
by
Harris
us
the members
of variance in
ratio
contained
delegation
County
as a district that
195, as
in H.B.
was done
their first
today
probably
already has more
argument
to
brief.
seems
Their
here
twenty-four
people
in it than
regard
alternative,
but we
made
growth potential
[sic],
was
being
the attack
it as
embraced within
area,
by
and that
this
mentioned, as
last above
to which we
very
census,
adequately
it would
posi
adversely
plaintiffs’
have held
prove
would
most
that
this
be the
importantly,
But
tion.
more
review
logical place
put
mem-
the seventh
validity
ing
apportionment
of an
ber.”
statute,
reach
it
is not
within
inquiry
the Court’s
determine which
Next,
Supplemental Brief
in their
best,
wisest,
or
is
better
wiser or
urge
postulated
plaintiffs
“best
apportionment proposals.
of two or more
plan
not found
rule” which we have
either as a
constitutional
articulated
new
only
of this Court
function
is to
gloss on
or as a
an old doctrine.
doctrine
validity
gauge
apportionment
of an
plaintiffs
Supplemental
In their
Brief
adopted
Legislature,
as
policy main-
that
the State
concede
requirements of the federal Constitution
county integrity
reapportionment
tain
plan
for
the best
search
not
which
rationally
“is an
stitutionally permissible
of a
and con-
instance
Legis-
appropriate.
or not
Whether
policy
might have
or
made a better wiser
lature
departures
may justify population
which
justiciable
H.B.
choice than
195 is not a
necessarily re-
of a
nature as
minor
judicially
question because
is no
there
policy.”
final
lated
But in the
manageable
discoverable
standard
argument
analysis,
reviewing
legislative
choice
as
premise
proceeds
devia-
on the
one
more
between
really
of a
tions
H.B. 195
not
Carr,
plans.
Baker
minor nature.
(1962); Cole-
have their advoсates.
(i. e.,
Legislature’s
however,
Republican
prerogative,
litical
the
Par-
elements
contending
ty,
Negro race)
weigh
liberal
the
considera-
democrats
the
to
enlightened
They
within
an
said districts.”
claim that
tions and to make
among
plan
the
the
alterna-
combination
195 results
choice
several
H.B.
long
constitutionally
proscribed political
open
As
as the al-
tives
to it.
gerrymandering,
cannot be said
racial
ternative it selected
which are
arbitrarily
up
unfair
discrimi-
2
to
or
embraced
Issue
and we shall take
be
natory,
political gerrymander-
claim
it cannot be said
be im-
first
the
to
ing.
permissible
Fourteenth
under
the
Amendment.”
A. Political
(1)
plain-
conclusion,
find
that
we
Although
etymology
gerry-
the
discharged
tiffs’ have not
their burden
known,38
mander
the constitutional
remaining
proving
districts un-
entitling
source for a cause of action
a
constitutional;
plaintiffs’
party
upon proof
to relief
is not.
thereof
evidence demonstrates
that under
allegations
upon
political
Suits based
existing
Texas,
re-
circumstances
gerrymandering
to
seem
draw their vi-
maining
provided
in H.B.
districts
for
tality from some dicta in Fortson v.
represent
195
a faithful
to a
adherence
Dorsey,
379 U.S.
13
plan
population-based representation
(1965),39
L.Ed.2d 401
but such dicta is
they
only minor
and that
contain
devia-
inapposite and cannot be the basis for
tions which
to
Court finds
be rea-
Court,
grant
Court,
this
or
to
relief
arbitrary.
sonable and therefore not
Ac- merely because someone
that he
feels
cordingly,
the Court
concludes
political party
gerry-
or his
has been
remaining
do
violate
districts
Equal
mandered. The
Protection Clause
Equal Protection Clause
United
demands that one man’s vote be substan-
States Constitution.
tially
weight
equal
to the vote of
man,
other
and no more.
Gerrymandering
apportion-
right
Plaintiffs contend that
protected
is the
single-member,
right
into
vote,
personal
ment
Texas
right,40
which
ais
multi-member
and flotorial
guarantees
and the federal Constitution
single-member
political
right
party
rather than into
no
a
to have
only,
arbitrary,
capricious
apportioned
is the
result
state so
that a candidate
gerrymandering,
partisan
party’s
for
membership,
advan-
from such
or from
tage
particular
faction, splinter
segment
use
that “their
constitutes a
a
or
designed to
or
membership,
elected,41
minimize
cancel
scheme
such
will be
early
ing strength
political
38.
Ameri-
“The word has its roots in
or
racial
elements
history, having
voting population.
can
been
coined
When
shaped
enough
a
district
describe
salamander
demonstrated
will be time
system
passes
of Mas-
drawn
eastern shore
consider whether
still
during
sachusetts
administration
constitutional muster.”
379 U.S. at
Gerry.
Elbridge
‘How’s
at
Governor
501.
party
for a
who first
salamander?’
Reynolds
Sims,
v.
at
noted the
district
resemblance
1381;
Baggett,
S.Ct. at
v.
Sims
247 F.
reptile
reported
was
to have asked.
Supp.
(M.D.Ala.1965);
Silver
Jor
Gerrymander’
‘Better call it
was the
dan,
F.Supp. 576,
(S.D.Cal.
etymological
recorded
retort
made
1965).
history.
Tabor,
Gerrymandering.,
See
Legislative
of
triсts,
Dis-
Federal
political party,
41. It
is doubtful
(1956).”
278 n.
Md.L.Rev.
suing
political
on its own
behalf
(1963).
Comment,
L.J.
n. 1
72 Yale
party,
standing
challenge
would have
designedly
validity
might
that,
of an
“It
well
stat-
constituency
otherwise,
Carr,
ute.
See Baker v.
a multi-member
369 U.S.
*27
204-208,
703-705; Reynolds
apportionment scheme,
circum-
under the
S.Ct. at
Sims,
case,
op-
561,
particular
would
v.
of a
U.S. at
84 S.Ct. at
stances
or cancel
the vot-
to minimize
out
erate
guarantee
right
to
votes
at 1382.
It
is well
add that
nor does
even to
legislators
by political
better,
poorer,
for
not cast
or
are
have the best
or even
such,
by
opportunity
but
individuals—
to
No
interests as
be elected.
citizen
Supreme
party
any
group
people.
political
Court:
no
other
As said
or
organization
personal
a
or
can claim
history alone, nor eco
either
“[N]
right protected by the federal Constitu-
group in
nomic
sorts of
or other
tion
him that he or it
which assures
terests,
permissible
in
factors
legislative
any
represented
will be
in
disparities
attempting
justify
body by
Republican,
Democrat,
a
a
or
representa
population-based
from
by any
party
member
such
of either
who
Citizens,
history
tion.
not
or eco
liberal,
conservative,
a
claims to
a
a
be
interests,
nomic
cast
Consid
votes.
any
category
moderate, or
other
provide an
of area
erations
alone
spectrum
viewpoints
leanings
of
or
em-
justification
devia
insufficient
for
membership
within
of such
braced
equal-population
tions
party,
any
group
or
a
of
other
member
principle. Again, people, not
land
organization.
constitutionally
or
The
pastures,
or trees or
vote.” 377 U.
protected right here under consideration
(Footnote
579-580,
S.
observed: not demand an of districts polls to assure success at the registers, “Racial like re- electoral may pre- No line race. be drawn to
ligious ones,
place
have no
so-
by
Emphasis
race or color.”
ciety
fer
tradi-
that honors
Lincoln
added.)
Davis, supra,
Mann v.
people, by
people,
tion—‘of the
F.Supp. at 245.
people.’
Here
individual
important,
race,
creed,
Supreme
gave
language
not his
his
this
principle
equali-
weight,
by affirming.
his color. The
added
Sims v.
ty
Baggett,
F.Supp.
is at war with the
(M.D.Ala.1965),
notion
represented by
District
must
charge
A
be
gerry
which involved a
of racial
Negro,
mandering,
as it is with
notion that
support
was
cited
by
represented
charge by plaintiffs,
District B must
correctly
Caucasian,
by Jew, Dis-
District C a
so. We have examined that case on this
* *
by Catholic,
point
clearly distinguished
trict D a
and so on.
and find it
race,
religion, plays
Of course
like
its facts.50
important
an
role in
choices
light,
Viewed in the above
the inherent
which individual voters make
complaint
weakness
in this
racial
among
gov-
candidates. But
various
gerrymandering
apparent.
There is
designing
has no
ernment
business
way
many recog-
no
how
determine
along
or re-
electoral
racial
races,
exist,51
nizable
creeds or colors
*
**
ligious lines.
We held
represented
each
which if
citizen
*32
selecting juries
not—
courts
need
plaintiffs’ theory
members in Texas under
give
jury
indeed should
each
not —
given
op-
would have to be
a reasonable
complex-
proportional
list the
racial
portunity
membership,
its
to elect from
community
ion
the
If race
that
has.
one or more
the
Members of
Texas House
drawing
proper
is not a
criterion for
Representatives.
Legislature,
or
jury
design-
list,
how can it
inbe
any reviewing court,
have
im-
would
an
ing
Wright
an electoral district?”
possible
attempting
protect
task in
to
Rockefeller,
66-67,
376 U.S.
“voting rights”
groups,”
of “racial
(1964)
CONSTITUTIONAL Senators, Legislature, 2 1871 Twelfth Representatives 9 Senators, Legislature, 2 Thirteenth 1873 Representatives 6 Senator, Legislature, 1 Fourteenth 1874 Representatives 6 delegates CONVENTION, 6 CONSTITUTIONAL 1875 Legislature, Fifteenth 1 Senator 1876 Representatives 3 Legislature, Sixteenth 1879 1 Senator Representatives 7 Legislature, 1881 1 Seventeenth Senator Representatives 4 Representatives Eighteenth Legislature, 1883 2 Legislature, Representatives Nineteenth 1885 2 Twenty-first Legislature, Representatives 1889 2 Representative Twenty-second Legislature, 1891 1 Legislature, Representative Twenty-third 1 Legislature, Representatives Twenty-fourth * Source-Brewer, Negro Legislators (1935). in Texas compiled record later Additionally, in a well-researched of both subject.
book on Brewer, Negro legislature See is houses a bicameral state Legislators (1935). of Texas This his relevant the Court’s consideration to tory Negroes reflects have been Maryland Fair this claim. Committee for Representatives elected tо .serve as State Representation supra. Tawes, Plain- forty-five times since Constitutional allege tiffs it would be difficult to 1868-69, spanning Convention of Negro elect a without to the Taxas House years from 1871 to 1895. Of who single-member plan. district The Sen- actually served, were elected from ate, repre- provides which also effective districts; multi-member and of these constituency, appor- sentation its multi-county 14 were from multi-member single-member on tioned district basis Thus, districts. neither witness testi increasing metropolitan S.B. Negro fied that a cannot be elected from representation by Senators, or district, correctly multi-member 175% prior statute, so.53 over the as follows: - County Harris from 1 Senators to - County from 1 -3 Dallas Senators — County
Bexar Senators - County Tarrant from 1 2to Senators plan, Supreme expressly The Senate which divides these Court has held that metropolitan internally single- per areas se into multi-member districts are not give Negroes discriminatory. member should persons similarly many situated governmental sense, In the broad opportunities of these districts excellent right privilege a franchise is a or con to elect a member of their race by grant sovereign ferred from a or a Legislature. government vested in an individual The Court finds as facts that H.B. group. Typically, right such a con 195 was intended constitute a generally statutory. stitutional or As is scheme to minimize or cancel out the vot- States, understood the United ing strength Negro race, of the it personal right franchise is the so, therefore, does not do does not qualified Plaintiffs individual vote. discriminating against have the effect of right, charge despoils that H.B. 195 Negro hand, race. On the other in violation of 1 of the Fifteenth Section *34 finds, by legislative Court as shown the Amendment, provides: which history, Legislature the had as its right “The citizens of the United of purpose passing in H.B. 195 to distribute or shall denied States to vote not be Representa- the 150 seats the House of by abridged by the United States or contiguous tives into districts of and color, race, any on account of State compact territory substantially equal with previous condition of servitude.” or population “to meet the criteria the Federal Court.” plaintiffs rely support charge, To this upon Lightfoot, supra, Gomillion v. which
Negro Disenfranchisement change municipal involved a in the plaintiffs’ Tuskegee, by Alabama, turn now to Fifteenth boundaries of We the Negro Legislature charge Whereas, Amendment disen- State of Alabama. previous shape square, its franchisement from the use of re- results was a the figure by In multi-member and flotorial districts. 28-sided sultant created the connection, significant legislative city this the action from it eliminated the supra. 53. Note 52 period. Negro not It has or the Reconstruction but four five of all the changed. excluding single
voters, white since been without a Legislature’s purpose, The sole voter. suddenly re- Bill 195 not House does Court, by found as obvious and a fact the boundary. any previous area define urban voters, Negro was disenfranchisement Indeed, multi-mem- the the boundaries Tuskegee. municipal from elections three of the ber districts which embrace pointed As out: the Dallas, major Tar- four urban centers — rant, complaint alleges amply Bexar identical a Counties —are “The those which have for sever- claim of racial discrimination. obtained fourth, Against respondents And Harris claim al decades. merely County, suggested, three dis- in their now embraces have never either argument, any previous dis- oral coun- tricts rather than one or brief by tervailing municipal trict, Repre- explained reasons function which for the * * * designed deposition change] Mutscher in of- sentative his [the plaintiffs. 364 U.S. at fered evidence serve.” County three internal divisions Harris at 127. congressional lines follow district facts in Gomitlion But involved up congressional set which were readily distinguish Ala- of the action redistricting congressional act. These invalid, Legislature be found to bama lines were not as such district attacked from action of the Texas thought Had Bush. there been evidenced, Alabama, by H.B. 195. maldistribution disenfranchisement right Negroes previously who had had the Negroes redistricting involved Harris municipal Tus- in the elections to vote County congressional purposes, we be- kegee suddenly right had that denied question it lieve safe to assume that the city. change in the boundaries ably pre- would have been in the raised change they Whereas, had had before the presented pared and of Bush. case vote, municipal franchise reapportionment change this fran- in boundaries removed the Texas Sen- partici- following Negroes longer prior action in no could ate Court’s chise. Tuskegee, attacked, municipal pate we this case has not been in a election therefore assume that deem Court stated: and the meet constitutional standard “ * * * Amend- Fifteenth [T]he man, four of the “one one vote.” All Constitution ment to the substantially metropolitan areas have * * * forbids United States larger representation, numerically, both passing law Senate, in the a result of House deprives citizen of his vote because reapportionment Conse- of each. at of his race.” 364 U.S. Negroes quently, residing four metropolitan all other like alter, every color, Bill 195 but on does House creed other citizens pattern continues, nationality, opportunity other hand to vote have the single-member dis- Representatives and multi-member for more Senators first for the authorized and used tricts than before. *35 by
apportionment Constitu- of Texas the Therefore, charge on this of Ne pattern 1845; the tion gro disenfranchisement, makes the Court single-member, or flotorial multi-member findings the same and conclusions fact specified apportion- in first the response of law heretofore in made Legislature which ment act of the Texas plaintiffs’ charge gerrymander significant racial passed in 1848.54 It was during ing. change pattern that did not 54. Note supra. 547, Legis- 55. Senate Bill Acts 58tli lature, Regular 1965, Session, 342. c.
Crazy Quilt
under that Constitution.57 And in fur-
analysis,
characterizing
ther
in
the Ten-
challenge
plaintiffs’
final
crazy quilt,
nessee
as a
Mr.
statute
Jus-
195, germane
4,
to H.B.
the
Issue
any particular
tice Clark did
condemn
not
allegation
it
a
that
“contains
needless
type
district,
but instead bolstered his
multi-member, flotorial,
mixture of
charge
through
of discrimination
use
the
single
reappor
member
examples
of extreme
dis-
‘crazy-
tion the 150 House
in
seats
parity.
253-258,
See
U.S.
S.Ct.
quilt’
completely lacking
manner
in ra
Although
729-732.
did
he
not subscribe
tionality, and it
thus unconstitutional
man,
concept
“one
the
one vote”
later
ground
on this
alone.” The
implemented Wesberry
Sanders,
in
opinion
look
not
of the Court but
1, 18,
526,
U.S.
reason
had been
an
“ * * *
divergences
long
[A]ny
from a
as the
64. “So
relief accorded can
light
based
standard are
on
be fashioned in
strict
of well-known
legitimate
principles
equity.”
Carr,
to the
incident
considerations
Baker v.
policy,
186, 250,
of a rational
state
effectuation
equal-population
(1962).
(Concurring opinion.)
(Foot-
from the
some deviations
constitutionally permissible
principle
omitted.)
note
respect
to the
of the two houses
in either or both
seats
legislature.”
state
of a bicameral
*38
remedy
opportunity
(N.D.Ga.1965).
There,
65
the admitted
the Court
legisla-
discrepancies
proposed plan
apportion-
in the
held
State’s
that the
scheme,
Georgia
rep-
tive
while
ment
state house of
initially stating
resentatives,
though constitutionally
of its
some
views
in-
legislative
provide guidelines
sufficient,
accepted
for
would be
an
in-
correctly recognized
plan
legislature
action.
terim
And it
and the
would
given
legislative reapportionment
opportunity
reapportion
that
an
Geor-
gia
primarily
legislative
properly by May 1,
a matter
for
1968.
determination,
consideration and
and
strenuously
oppose
Plaintiffs
judicial
appropri-
relief becomes
grounds:
on
such
decree
two
only
legislature
ate
when a
fails to
(1) They say relief must be effective
reapportion according to
con-
federal
immediately;
timely
requisites
in
stitutional
(2) They say H.B. 195 must
in
fall
having
adequate
fashion after
had an
severability
toto because it has no
opportunity to do so.” 377 U.S. at
clause.
586, 84
at 1394.
S.Ct.
agree,
The Court cannot
reasons
any
Supreme
Court did not set
which follow.
explicit
upon
limits
the trial court’s dis-
apportionment act, originally
The 1961
remedy
cretion
the matter of
by plaintiffs
by
attacked
and set aside
major
Rey-
decisions rendered with
Court,
this
contained flotorial
WMCA,
nolds v. Sims.66 In
Inc.
both
plaintiffs
challenge
did not
Lomenzo, supra, and in Roman v.
v.
validity
original complaint.
At
Sincock, supra,
Supreme
re-
Court
(a)
time
did not intimate
manded
court
the case to the trial
type
inherently
this
of district was
instructions
for that court to formulate
discriminatory,
(b) that
of flo-
the use
remedy.
invidiously
torial districts
resulted
an
Thus, this Court finds no authoritative
discriminatory population disparity,68 or
fashioning
expression which limits it in
(c) that the use of
these distriсts
com-
remedy
appropriate
which it deems
types
bination with other
re-
districts
customary
in the circumstances.
“crazy quilt”
ap-
sulted in a
scheme
concepts
equitable
discretion will be
portionment.
this,
It was not until
utilized,
both as to the manner
tim-
struggle,
third round of the
that chal-
ing of relief.67
lengers urged
invalidity
the inherent
(cid:127)
The Court solicited comment from the
of flotorial districts.
In the
case
parties concerning
Mann, supra,
entry
a decree similar
the Davis v.
decided after
F.Supp.
Fortson,
original judgment
case,
one of
Toombs v.
of the
in this
inappropriate
proximity
to discuss
consider
“We find
aof
forthcom-
pres
questions relating
ing
to remedies at tlie
election and the
and com-
mechanics
beyond
time,
plexities
laws,
in our
ent
what we said
of state election
and should
opinion
Reynolds.” WMCA,
rely
equitable
upon general
Inc. v.
act and
Lomenzo,
654-655,
633,
principles." Reynolds
Sims,
84 S.Ct.
377 U.S.
v.
377 U.S.
(Footnote omitted).
(1964)
(Emphasis
To
(1) Kirby John Committee. Spurlock; R. F. and Although copies served with of the Lindsey. (3) Harry pleаdings through E. and briefs counsel of record, following participate did gist not State of Texas. of their state- Elliott; proceeding: Legis- majority in M. this William ment is that the of the Jr.; Turrentine, Dorsey quarrel E. B. Robert lature no the decisions has Moffett; Hardeman; George Supreme Louis of the Court of the United Hall; Word; Ralph Crump; require M. J. P. States which on Grady Hazlewood; Galloway Calhoun, which hold basis and Jr.; Creighton; Owen, III; political Tom Frank that factors such as historical Blanchard; Buenger; interest, boundaries, L. H. J. Walter communities of and Billy Hodges; Richardson; may policies D. Milton other rational state consti- Guzman; Locke; Eugene tutionally drawing Julio D.Will dis- considered Davis; Lee; Bennett; lines, long resulting plan R. H. Anna M.W. trict so as the Adams; Lyle; Schmidt; requirement Ann William A. does not violate basic representation upon popula- and Velma Sherman. that be based Further, Leg- tion. as members of the answer, plaintiffs’ refute defendants islature, they they have dedi- state that question contentions detail and cated result their efforts achieve this accuracy examples. of their Defend- they Finally, in the of Texas. as- State only assert that “are able ants they represent sert that a cross-section point view, represent their own thinking both minority point view, which is a Texas, suggest in the that it State only county their their but in own Court to con- would be erroneous for the legislative in the district and plaintiff-legislators, clude that the Sen- pray as a Texas whole.” Defendants Repre- ators Eckhardt and Kennard and that the Court H.B. 195 consti- declare Gates, reflect the sentatives Johnson and thinking respects tutional in all and award them “ * * * body costs, because opposed posi- members are [M]ost O’Donnell, A named Peter defendant is by plaintiffs.” tion taken Jr., Chairman of the Texas State Re- The second amicus statement publican Committee, filed Executive who Hainsworth, lawyer of Robert W. a ad- admitting allegations an of the answer all practice mitted to before this Court and plaintiffs’ of the First Amended Com- Negro race, request- member of who plaint praying this Court take upon ed this Court to defer decision rights jurisdiction to determine the through issue of racial discrimination duties, parties Although herein. districts, pending use of multi-member styled herein, his as a defendant Supreme appeal his to the Court of the aligns brief this defendant himself as Martin, United States Hainsworth by plaintiff adopts the brief filed (Tex.Civ.App.1965), S.W.2d plaintiffs. Therefore, term when the e., error ref. n. r. which raises the identi- opinion, it “defendants” is used in the cal issue under old statute. The will not include the Chairman the State moot, appeal as Court vacated Republican Committee unless Executive (U.S. 25, 1965), Oct. and de- so stated. petition rehearing, nied a filing permitted (U.S. 18, 1966). Jan. by group in- one and one statements “B” APPENDIX dividual, appearing as amicus herein Subsequent hearing to the of this curiae. The first amicus statement cause, group thirty-two legislators parties the Court invited that of Corpus question F. Hale of brief further headed DeWitt relief they remedy Christi, They Texas. assert be ordered should rеgard attorneys parties of record the Court with the situation in are not nor the flotorial in the event cause but are interested H.B. only duly-elected public 195 should be held offi- invalid as to such dis- outcome suggested tricts. it will The Court that a de- cials of the State of Texas because *45 policies government cree similar one of the to the in Toombs Fort- affect the of son, F.Supp. (N.D.Ga.1965) might recognize interim H.B. 195 as a valid appropriate, legislators procedure, from in such event. but order the large to run at the flotorial districts parties variety replied in a Legislature not cor if does the therein ways. filed an extensive brief Plaintiffs the these districts rect discrimination reargued which concluding the entire case before by August 1, 1967; (3) or the Court that proper view of the recognize H.B. a valid should 195 as They (1) remedy. the contend that procedure, invalid interim but hold it stay authority for Court lacks any length to redress August 1, 1967 if amended as not declining time, discussion date; (4) the should such or that Court postponement remedy beyond Au- require legislators flotorial the from the gust 1, remote; (2) being too 1967 as large elected at therein districts to be to that this Court has no alternative but subsequent for the 1966 elections and enjoin the H.B. elections under They Court elections. assert that the grant imme- and relief effective almost holding enjoin be in to the would error duty diately; (3) no that the Court has H.B. of elections under 195. Defendants Legislature to resubmit the to the matter plaintiffs’ answer ing (1) contentions assert sitting regular session, that because au that does not lack the Court body had to has its one allowable chance redress; thority stay (2) to that apportion man- in a Texas constitutional enjoining Court would err failed; (4) ner and has that 195; (3) elections Legislature H.B. under power lacks the to Court sever H.B. opportunity no to had has and to strike the flotorial districts down deficiency, particular if correct Court, only. ei- Plaintiffs that the assert deficiency; (4) a that the Court be obviously initially or after reference to ther itself power has the to sever. master, complete, promulgate a must a plan apportionment new for the group ex- The Hale curiae amicus they suggest Finally, elections. possi- preference pressed an for order general Court should “announce certain they (1) First, remedies. ble desire standards, guidelines, pro- to criteria approve H.B. as valid the Court a appor- vide a basis review future completion interim measure until of the tionment acts.” Census, subsequent 1970 Federal to having O’Donnell, although Defendant Legislature validly reappor- would aligned suggests plaintiffs, himself with law; required by tion the or State as differ- similar remedies but somewhat (2) that the Court outline standards suggests appoint- First, ent order. he under the Fourteenth Amendment which chancery special to of a ment master necessary Legislature it deems for the to plan subject to Court’s formulate satisfy; (3) that the Court retain Alternatively, approval. if master be no continuing jurisdiction cause. (1) appointed, he the Court asks that Second, they ask if the Court should (2) enjoin invalid, elec- hold H.B. 195 all proceed suggested, as first that the Court (3) thereunder, ul- tions return the uphold H.B. 195 as a valid interim meas- responsibility adoption of for the timate regular ure until the next session plan constitutional Legislature, commencingJanuary 1,1967, forcing again, convention defendants body opportunity and afford that Legislature. special session of the prior August correct the deficiencies prefer which, 1967, failing Defendants state their order of should ence, in reach the event the Court should order that the candidates from the domi- remedies, question appurtenant be as follows: nant and run counties all (1) recognize large comprising H.B. that the Court should the counties procedure, making respective a valid interim flotorial thus reapportion order the multi-member flo- districts out subsequent properly to the 1970 torial If districts. the Court should deem Court; census; they pre- proper, should immediate relief to be
454 fer running the solution of maintained candidates at H.B. 195 be cern be that large por- within the possible, flotorial districts. These even if certain insofar as legislators express overriding con- tions thereof are invalid.
APPENDIX “C” Having Districts Not Constituent Counties in a Flotorial District Number of Representa- Population Percentage of Rep- District District tives Per Per Deviation Ideal 63,864 Number Total District resentative District of 59,971 59,971 1 6.09 — — 60,906 60,906 1 4.62 — 62,464 62,464 1 2.19 — 63,549 1 63,549 0.49 67,367 67,367 1 5.48 + 68,813 68,813 1 7.75 + 67,767 67,767 1 6.11 + — 60,357 60,357 1 5.49 — 245,659 61,415 4 3.83 60,877 60,877 1 4.67 — 63,889 63,889 1 0.03 + 70,808 70,808 1 10.87 + 69,436 69,436 1 8.72 + 16 61,282 61,282 1 4.04 — — 57,551 17 57,551 1 9.88 57,604 18 57,604 1 9.80 — 21* 140,364 70,182 2 9.89 + 417,283 22* 59,612 7 6.65 * — 408,409 23* 68,068 6 6.58 + 417,396 24* 69,566 6 8.93 + 25 66,272 66,272 1 3.77 + 26 67,361 67,361 1 5.47 + 59,683 27 59,683 1 6.54 — — 55,772 28 55,772 1 12.67 29 65,119 65,119 1 1.96 + 63,896 30 63,896 1 0.05 + 33* 951,527 67,966 14 6.42 + 67,045 34 67,045 1 4.98 + 41 66,706 66,706 1 4.45 + 42 71,301 71,301 1 11.64 + — 63,067 43 63,067 1 1.24 44 66,961 66,961 1 4.85 + _ 180,904 49* 60,301 3 5.58 70,105 50 70,105 1 9.77 + 69,992 51 69,992 1 9.59 + 52* 538,495 67,312 8 5.39 + 61,571 61,571 3.59 — — 56,594 56,594 11.38 64,815 64,815 1.49 + 56,750 56,750 11.13 — 687,151 57* 68,715 7.59 4" * Denotes multi-member districts *47 “0”
APPENDIX Having Districts Constituent Not in a District Counties Flotorial Number of Percentage Representa- Population Rcp- Per from Ideal District tives Deviation District Per 63,864 District sentative District of Number Total 70,845 70,845 1 10.93 58 + 69,184 69,184 1 59 8.33 + 68,621 68,621 + 1 7.45 60 — 60,846 60,846 1 63 4.72 + 64,067 64,067 64 1 0.31 — 61,112 61,112 65 1 4.30 70,874 70,874 1 66 10.97 + — 62,814 1.64 314,070 67* 5 67,717 67,717 70 1 6.03 + 64,630 64,630 71 1 1.19 H" 70,357 70,357 1 72 10.16 + — 60,884 60,884 73 1 4.67 — 55,055 55,055 74 1 13.79 62,165 62,165 75 1 2.66 — — 55,517 55,517 78 1 13.07 — 59,774 59,774 79 1 6.40 — 115,580 57,790 80* 2 9.51 — 54,385 54,385 81 1 14.84 — 60,508 60,508 5.25 66,478 66,478 4.09 + — 56,528 56,528 11.48 — 123,528 85* 61,764 3.28 56,793 57,793 9.50 — * Denotes multi-member districts - Average Overrepresentation 6.70% 6.01% -
Average Underrepresentation Average Range 12.7%
APPENDIX “D”
Waggoner Carr Attorney General Texas Supreme Building
Austin Texas
May 19, 1965 Honorable Ben Barnes Constitution recent deci- of 1876 Supreme sions of the U. Court on the S. Speaker of the House subject reapportionment, of state Austin, Texas following legal office has reached the Speaker: Dear Mr. conclusions. analyzing county As a briefing single result of the has suf- Whenever Section Article III more of the Texas ficient to be entitled to repre- carry representative, necessary one all the extent out than Supreme he it is entitled shall mandate sentatives which Court. all apportioned county. instances, county to that other lines must remain multi-county intact or flo- may Multi-representative counties joining torial districts be formed representatives apportioned so that the contiguous complete counties. county at-large run can within the coun- individual districts within legal above been set conclusions have ty or, a of these *48 combination clearly concisely possible. out as and as methods. These conclusions have been reached thorough analysis of the Texas consti- single county If does not have provisions fed- tutional as well as recent population it to one to entitle sufficient representative, eral court decisions. Our research has county join- such shall thoroughly developed legislative contiguous also more counties ed with one or history legislative interpretation proper ratio is until and provision The above cited achieved. legislative immediately prior sessions requires that the Texas Constitution immediately subsequent to and kept intact their bound- counties be and provisions adoption the constitutional aries not be violated. involved. keeping in- of counties 4. Should the very truly, Yours Supreme in a violation of the tact result Waggoner Carr man, rule, then the Court “one one vote” only county be violated WC:ld lines must “E”
APPENDIX THE DISTRICT COURT IN UNITED STATES FOR THE TEXAS SOUTHERN DISTRICT OF
HOUSTON DIVISION AL., KILGARLIN, ET WILLIAM W. Plaintiffs,
VS. CIVIL ACTION MARTIN, Secretary of CRAWFORD NO. 63-H-390 of the State State
Texas, AL., ET
Defendants. day also the which constitutes filed this DECREE findings fact and conclusions Court’s having for trial at This cause come on of Civil Pro- under Federal Rules law including parties, which all intervenors 52(a); cedure curiae, present by coun- and amicus were ; having heard the evi- sel and the Court ORDERED, AD- It therefore having plead- and dence considered JUDGED, and DECREED the Court: evidence, arguments ings, coun- hereby declares The Court FIRST: sel; being of the view Repre- present apportionment that the grant- that a be entered Decree should of Texas for the sentative Districts State ing only to the ex- relief Bill 59th forth in House as set specified, tent for rea- hereinafter Opinion Legislature, Law Texas Sess. Vernon’s sons set forth Court’s Coryell McLennan, ch. 351 at 753 [Tex.Rev. Service (Supp. 1965)], Art. 195a Civ.Stat.Ann. Place 1 EX- and therefore valid constitutional Place 2 identified therein CEPT Districts Place 3 20F, 36F, 38F, 40F, 46F, 48F, 15F, 32F, Bell, Williamson 77F, 62F, 69F, Districts as Place 1 presently constituted are unconstitutional Place 2 invalid. and therefore Travis, Burnet conducting any election SECOND: for the nomination election Place 1 Representatives Member the House Place 2 Texas, the named defend- Place 3 ants, individually respective their Place 4 Representative capacities, official Nueces, Kleberg respective agents, officers and em- *49 Place 1 ployees, hereby enjoined from enforc- 2 Place ing, applying following House said Place 3 15F, 195, (a) Bill as to invalid Districts 4 Place 20F, 40F, 46F, 48F, 62F, 32F, 36F, 38F, 69F, 77F; (b) as to Districts Cameron, Brooks, Kenedy, Willacy 47 19, 39, 45, 61, 68, 14, 31, 35, 37, 47, 1 Place 76, which, though valid, are herein- Place 2 recomposed after with the invalid Dis- Place 3 new, valid, multi-member tricts create Districts. Taylor, Haskell, '61 Jones Place 1 Pending by the THIRD: enactment Place 2 State of Texas a new act in substitution for or amendment of Ector, Loving, 68 Reeves and Winkler complies said House Bill 195 which 1 Place requirements of the Constitution of Place 2 applicable the United States and other Lubbock, Crosby law, Represent- counties embraced 14, 15F, 19, ative numbered Districts Place 20F, 31, 32F, 35, 36F, 37, 38F, 39, 40F, Place 46F, 45, 47, 48F, 61, 62F, 68, 69F, 76, Place 3 hereby Bill 77F in House 195 are Representative 1, Districts FOURTH: recomposed in multi-member districts and 2, 4, 5, 6, 7, 9, 10, 11, 12, 13, 16, 17, 3, 8, each such number District shall bear the 30, 18, 21, 22, 23, 24, 25, 26, 27, 28, 29, and shall be entitled to the number elect 42, 50, 51, 52, 53, 33, 34, 41, 43, 44, 49, Representatives it, indicated for 59, 60, 64, 65, 66, 54, 55, 56, 57, 58, follows: 80, 81, 71, 72, 73, 74, 75, 78, 79, Smith, Rusk 82, 83, 84, 85, House Bill 195 and 86 of Place changed and such are not extent Place 2 14, 19, together with Districts Districts 47, 61, 31, 35, 37, 39, 68 and 76 as Brazoria, Fort Bend Rep- composed herein shall constitute the Place Districts resentative Place 2 provisions All other of House Texas. Grayson, para- Rockwall except enjoined Collin and Bill 195 those graph above shall remain
Place SECOND Place 2 full force and effect. Paragraphs SECOND,
FIFTH:
THIRD, order and FOURTH this shall until 12 noon the
not become effective day August, in order to first Legislature during the Texas its enable intervening regular next session or
special session, to reconsider said House legisla-
Bill 195 and to enact substitute
tion. parties shall bear their
SIXTH: costs.
own juris- The Court retains
SEVENTH: complaint
diction of this for such other may required.
and further orders as *50 LARSEN, Plaintiff,
Alf
INSURANCE COMPANY OF NORTH AMERICA, Defendant.
No. 6381.
United States District Court Washington, D.W. N. D.
July 30, 1965. notes present today tionalities in Texas whose distinguish- (3) Sims, of this facts case are In the Court found as a fact follow- able from the facts of Sims in the that there discrimination was what ing particulars: intended, Legislature id; this Court Sims, (1) Legislature Legislature In “sud- finds as a fact that denly” multi-county, multi- against created a not did intend to discriminate (cid:127) district, long- contrary Negroes. member to a history standing single-county vot- ing 109; units, F.Supp. Lasker, at 51. See The Evolution of Man long history (1961), 194; Alexander, Texas has of the use of at General multi-county, Biology (1962), 877-879; Yfflee, multi-member and multi- at supra. Biology (4th 564; 1964), member districts. Note 46 ed. at Ameri- Sims, Academy the Court a fact found as can of Political and Social plan Science, Religion Society that capable the House there had ines- in American discriminating against (Nov. 125-134; 1960), Many Stores, effect Negroes, ibid; Creeds, (1945); Landis, as a this Court finds One Cross World Religions (1965), fact that H.B. 195 does not have at 7-9. effect. difficult, Negroes theory more voting rights plaintiffs’ the election under asserting that reason for is their minimized H.B. than there are which Negroes strength sub- voting Representa- seats the Texas House unlikely point It con- out merged, appropriate tives. it is enough should create tend this Court prior apportionment statute every “race, possible assure discriminated held invalid this Court origin” creed, or national or color areas, metropolitan against harshly of its each would own be able to elect one generally. office, but the ultimate extension representation increases H.B. 195 produce logic plaintiffs’ this result. would Repre- metropolitan areas of the testimony Returning of Mr. to the statute, prior sentatives, over Bunkley 46% Professor Hamlett to the as follows: make that multi-member districts effect - Representatives County to 19 from 12 Harris - Representatives County 9 to 14 from Dallas - Representatives County to 10 from 7 Bexar - Representatives County to7 from Tarrant Negroes history Negroes Although election have been multi-mem metropolitan areas in Texas elected from these judicially may will years, ber The Court districts. recent which fact due history composition of large pres part dilutions notice this to the extreme past membership House areas, undoubtedly of the Texas ent in these both public Representatives,52 a matter were aware of these informed witnesses IN TEXAS NEGRO LEGISLATORS
Notes
notes items that, (5) 63, supra, F.Supp. think Court did in Bush v. as this in text at note Martin, S.D.Tex.1966, F.Supp. 443). The efforts into east this 63-H-266, 5, 1966], (1) mutually No. we Jan. [C.A. three exclusive areas — not, not, per extreme, (3) need take de therefore should minimis at one No. any position other, being hard and fast or indi- se even at the with the second burden, big really cate оur on views who has the “the area middle” — nothing. judicial or when or under circumstances what solves In none is in- quiry judicial met. burden or when the burden is In shifts avoided. each there is a may slight per- difference, F.Supp. 79. There be a that which was done.” 252 at 431. mostly perhaps haps emphasis, Judiciary noth- Granted that not for it is semantics, respect ing “good,” “better,” with than select “best,” or more citing opinion, that, to one other matter. The I think as this Court held Roman, D.Del., 1964, Martin, 1966, S.D.Tex., F. Sincock v. Bush reviewing 615, 619, F.Supp. Supp. 63-H-266, “in 484 at No. [C.A. states statute, validity 5, 1966], determining of an Jan. whether the plan reach of the Court’s it is not inquiry enacted substantial numeri- within achieves equality equality nearly is the better cal or as is to determine which as wisest, practicable, process necessarily best, of two or more or apportionment proposals. or is a wiser * * * comparative plans, one so that other ei- * * * Court, available, great not of this ther offered or are concern might done, significance. been that which have awesome, judicial inquiry not determination that this much is too in this new way much, much, rapidly developing or much is too this area. pass much or not muster. does does imperative plain. The constitutional determining this, the substantive Why The substantive standard is clear. (a) nu- standard is clear: substantial lay against not take the record and it equality equality merical —numerical those standards and then see whether it nearly (b) practicable as is devia- —-and up? does or does not measure The one equality per- tions from numerical thing always any reapportion- obvious in they mitted if have a basis in rational ment bill is the numerical result. The legitimate (a) and state interests. Both problem necessarily then relates (b) part are a of the constitutional obli- qualitative evaluation of factors which gation judicial of the state. deter- And justify do or do not the deviation. If mination whether this constitutional significant poli- there are rational state imperative ought go has been met cies, then it is the state which knows on, by, off or be thwarted frustrated party. say this better than other To slippery change reviewing stand- seeing individual wide- particular goes up disparity ards as the spread disparity numerical have to un- or down the scale. prove negative dertake to Moreover, just ordinary possible these are not conceivable rational basis if, indeed, any cases constitu- state serious of 254 counties and a may nearly tional issue so characterized. 10 million is to insulate state This, congressional parallel activity meaningful as was judicial in- case, very quiry. Worse, is one in proce- which this in the name of a predecessor struck down In- expedite statute. dural standard to the trial of using acknowledged cases, Judiciary stead the Court its it is to commit the to an equity power incongruous impose process which, formulate to scruti- plan, followed, a court-directed nize the needle which must exist to over- wisdom, process again evident once deviation, come the numerical the at- applied leaving Legis- it first to the tackers must first stack and then unstack