Seamon v. Upham

54(d) and 28 U.S.C. Fed.R.Civ.P. through 3 of Claims 1 fringement Patents-in-Suit, set Paragraph as forth 1920. § is, be, stayed shall and Judgment Order, par- Pretrial 10. In Joint disposition timely of all final pending a issues that all stipulated ties have Judgment. appeal(s) from damages relating to the amount separate- and are to be severed tried

IT SO ORDERED. IS IT liability. IS ly from the issues OF JUDGMENT RE-ENTRY accounting that an ORDERED damages the amount of determine Court, having its earlier vacated shall are recoverable USM which having and Judgment of March following place immediately take Granting, Opinion filed and Order appeal(s) disposition any Part, final Part, Denying, in USM’s Motion and Judg- may be taken from this Opin- to Amend the Court’s Memorandum Findings of Fact ment. ion contained its which required by Rule Law as Conclusions (see damages the issue of Excepting 11. hereby orders follows: above), Judgment Paragraph 10 this over jurisdiction has

1. The Court 1292(a)(4). is final. 28 U.S.C. § matter, parties subject as well as the to this action. Plaintiff, Corporation [USM], USM

2. standing to sue for

has title

infringement of States Pat- United 3,776,989 3,801,686, Nos.

ents December

which were issued on April 2, respectively (the Patents-in-Suit). M.A. SEAMON through 3 of Patents- 3. Claims are in-Suit valid and enforceable. UPHAM, et al. Chet Defendant, Molding Detroit Plastic 4. No. P-81-49-CA. Civ. A. [DPM], infringed Company has 3 of the Patents- through Claims Court, United States practice of through the in-Suit Texas, D.E. processes injection foam mold- Paris Division. ing. Feb. 1982. DPM, officers, agents, its servants 5. employees, persons and all participation concert or with

active

them, enjoined are from further acts infringement through of Claims

3 of each the Patents-in-Suit

without license from USM. remaining

6. All Claims and Counter- made

claims have been prejudice.

parties dismissed party Neither entitled to an award

7. attorneys 285. fees. U.S.C. §

8. is not to treble dam- USM entitled

ages. 35 284. U.S.C. § USM, prevailing party as the

action, is its costs. entitled to recover

See also F.Supp. Cornett, Paris, Tex., plain-

Leighton tiff. Richards, Austin, Tex., for Jua- R.

David Craft, nita et al. Botello, Segura, Roy Jesse San

Luis M. Luna, Garcia, Antonio, Tex., A. for M. A. Palomo, Eureste, Padilla, Gonzales, R. B. R. Tamez, DeHoyos. and H. M. R. Cristan Camacho, Austin, Korbel, George J. Jose Hernandez, Gonzales, Tex., Alpha Richard Aid, Menchaca, Legal Texas Rural Rolando Inc., Rio, Tex., Noriega, Texas Raul Del Antonio, Tex., Aid, Inc., Legal Rural San Gonzales, Dolorosa and J. Adame. for A. B. Avila, Le- Mexican American Joaquin G. An-, Fund, Defense and Educational San

gal tonio, Tex., Rodriguez. and J. for A. Garcia Austin, Tex., Jr., for Quintanilla, Rafael Party of Texas. Democratic Tex., White, Gen., Austin, for Atty. Mark plaintiff. Jr., George, R. M. Harmon & James

John Graves, Moody, Aus- Hearon & Dougherty, tin, Up- Tex., and Chester for Eric Clifford ham. Tex., Jr., Sherman, pro Slagle,

Robert C. se. Sherman, Tex., III, for Bra- Slagle,

R. C. dy Fisher. III, Bickerstaff, Gray, Richard E.

Steve Tex., Austin, William Gen., for Atty. Asst. Strake, Clement, Texas. State of Geo. Gen., Austin, Allison, minority voting strength. Atty. group James Asst. One Tex., argued it Roger Margaret basically “packed” Peterson and minorities Coplin. congressional into a district in single order to minimize the influence had JOHNSON, D. Before SAM Circuit enjoyed group A previously. minorities Judge, JUSTICE, Judge, Chief District and argued from another area of the State PARKER, Judge. “fragmented” minority population voting strength. order to decrease its challenged constitutionality Plaintiffs OPINION S.B. under the fourteenth fifteenth JOHNSON, Judge: D. SAM Circuit amendments the United Constitu- States Supreme Since the addition, Court’s 1962 decision plaintiffs tion. claimed the Carr, Baker 82 S.Ct. U.S. legislation Voting violated section 2 (1962), 7 L.Ed.2d 663 federal courts have Rights Act of 1965. 42 U.S.C. § undesirably found (1976) themselves in the center . congressional

of the “political thicket” of empaneled This three-judge court was legislative apportionment. This Court pursuant (1976). to 28 On U.S.C. § just position. finds itself in such a November this Court held an evi- dentiary hearing. three-day first called At Legis- session the 67th hear- lature of Texas enacted Senate Bill 1 ing, parties presented No. evidence relevant (S.B. 1), apportioned Texas into issues involved the constitutional twenty-seven single-member congressional statutory challenge At to S.B. 1. districts, on August 1981. The enact- hearing, conclusion Court took signed by ment was advisement, recognizing Governor Texas the case under August reapportionment plans Tex.Rev.Civ.Stat.Ann. enact- (Vernon 1981). art. 197f Supp. Since Texas ed State Texas are not effective jurisdiction is a covered the submission as law unless and until receive clear- preclearance provisions pursuant of section 5 of Voting ance to section 5 of the Voting Act, Rights 1973c Rights Accordingly, § U.S.C. Act. this Court with- (1976); Bell, Briscoe v. deciding addressing 97 held the constitu- 2428, 439, 53 tionality S.Ct. L.Ed.2d appropriate S.B. 1 was sub- 1 until of S.B. action mitted to the Attorney the by General of Unit- was the of Attorney taken General the ed States for preclearance on or Sep- about Lipscomb, United States. See Wise v. 437 11, tember 2493, 1981.1 535, 2497-98, 98 S.Ct. 57 U.S. L.Ed.2d Finch, (1978) 411 citing Connor v. 431 U.S. any objection Prior to or affirmative indi- 407, 1828, 1832, 97 S.Ct. 52 L.Ed.2d 465 cation objection that an would not be inter- (1977) Waller, 656, and Connor v. 421 U.S. posed by to S.B. 1 the Attorney General of 2003, (1975). 95 S.Ct. 44 L.Ed.2d 486 States, the United suit was filed in the 1982, federal 25, district court for the January Eastern Dis- On this Court entered trict of against Texas the State of postponing filing Texas an order for deadline and several state officials. prospective Numerous for of rep- candidates the office plaintiffs were allowed to in the intervene resentative United for Congress States suit, presented which the question twenty-seven congressional sixteen of dis- tricts, whether 1S.B. an impermissible constituted as were by those districts defined gerrymander 22, February resulted dilution S.B. until 1982.2 The Texas constitutionality Rights Education, Voting 1. The was composed of the Act Board one affirmatively congressional determined in South Carolina member elected from each dis- Katzenbach, by v. 383 U.S. trict established Ann.art. 11.21 law. Texas Educ.Code 86 S.Ct. 15 (Vernon 1972). 769. L.Ed.2d by The sixteen districts affected the order filing postponed by 2. The directly order also deadlines were constitutional and affected those districts prospective statutory challenges for candidates for the Texas State S.B.

937 2,1982, Code, ruary hearing ordered that a be set art. 13.- Election Tex.Elec.Code Ann. provides that an 12(c) (Vernon Supp.1981), jur- the extent of this Court’s to determine placed one’s name application have addition, judice. In isdiction case sub by as a for the ballot candidate nomination jurisdiction assuming the Court’s party be filed later than shall no implementing for a court-ordered con- need Monday February p. m. on the first 6:00 gressional apportionment plan, parties preceding primary of the election. date to provide were ordered written submis- 11.22(e) Texas Ann. See also Educ.Code art. along plats, or rele- maps, sions other fil- (Vernon Supp.1981). Consequently, the vant data. ing Monday, deadline in 1982 year was hearing February held on was Such February 1. This Court’s action was taken time, granted At Court action opinion as a result its such plaintiffs’ motions to amend their com necessary delay by was because plaints challenges congres to include to the Attorney of the United General States apportionment plan that S.B. 1 was sional under meeting obligations his section 5 supplant. plan, upon This meant to based Rights This Voting delay placed Act. figures, was 1970 census instituted after people of Texas in the the State litigation. v. See Graves substantial facing deadlines position filing awkward Barnes, (W.D.Tex.1972); F.Supp. 343 704 congressional for United offices that States that, Barnes, (W.D. F.Supp. v. 378 640 to be elections because Graves were filled Barnes, Attorney Tex.1973); F.Supp. had the United States General Graves v. 408 preclear the relevant Barnes, failed (W.D.Tex.1976); 446 1050 Graves enactment, 42 be unenforceable. would (W.D.Tex.1977); White v. F.Supp. 1973c. U.S.C. § Weiser, (1973). congres existing L.Ed.2d 335 the United Attorney General provides only apportionment plan sional objection interpose did to S.B. States addition, utilizing twenty-four districts. provided for in 42 U.S.C. 1973c § data, 1980 census its districts have an aver 29, 1982 January

letter dated to the Secre percent age deviation of ± 17 from the tary of Janu State of the State Texas. ary Friday, days was three population ideal for a district prior February filing percent dead its and a deviation of ± 84.3 was, however, days line. It some 140 after the obvious constitu extremes. Because of was the initial information submitted to the inadequacies plan, of this this Court tional Attorney office of United States Gener litigation, parties asked byal Texas. State of Texas, including the to exercise State jurisdiction imple devise equitable objection The effect of the congressional apportionment plan ment a Attorney General United States twenty-seven congres that would include l’s implementation was to render of S.B. req satisfy sional districts and constitutional provisions legally unenforceable. U.S.C. Court, Accordingly, 1973c. on Feb- § uirements.4 seeking approval remaining congressional The as of its 1. 11 districts tious mechanism for congressional apportionment plan. by defined effort tion 1 were left in an S.B. unaffected Additional- upon objec- to avoid elec- ly, three-page intrusion the Texas it should be noted that the process any necessary. more than by the office United tion letter transmitted of Attorney four General over and one-half States Supreme the

3. It should noted that Court original after the submission fails to months demonstrate Congress it clear that intended to “think[s] analy- a careful and detailed [jurisdictions Voting provide Rights by covered the was sis of the State’s submission made. expeditious an alternative to Act] with declaratory judgment actions.” Morris v. Defendants, plaintiffs’ 2420, Gressette, 491, 2411, answer to 4. their 432 97 53 U.S. S.Ct. complaints, (1977). delay, that the mere ex- unseemly amended denied 506 The inat- L.Ed.2d tention, apportionment congression- 27 inactivity istence of an of the office of the Attor- impossible ney provided to Texas makes it to utilize General of United States the al seats the sup- anything existing congressional expedi- 24 districts. In State of Texas with but an the 938 9,

Subsequent February however, hear- Legislature, only 1982 State is the state ing, post- body entered second empowered congres- this Court order to enact a new poning filing prospective apportionment plan.6 deadline for sional There has been representative to by candidates for the United no action taken the Governor of Texas Congress. post- deadlines special Legislature, States The were call a session 19, poned m. on p. biennially until 6:00 March 1982. which meets and is not scheduled order, February 15, 1982, This dated affect- to convene until To again the con- districts, Governor, congressional trary, ed only through sixteen his attorneys, they requested as were defined either 1 or implement has this Court otherwise, plan that were affected the Janu- its 25, ary enjoined 1982 order.5 It also own. holding any State Texas from election congressional appor of a absence purpose choosing congres- for any has precleared pur tionment been representative sional from the of Tex- State 5, Rights the Voting suant section Act injunction as. be in force and “essentially freezes the laws of election implemented

effect until this Court a court- Georgia States, covered state.” v. United congressional apportionment plan ordered 526, 1702, 1709, 411 U.S. 93 36 S.Ct. L.Ed.2d or other took action it appropriate. deemed result, (1973). .As a State Texas recognizes This possibility Court clear directives faces the party the date for Supreme reap which, Court that the primary law, task under Texas elections — portioning congressional belongs 1,May 1982, districts Tex.Elec.Code Ann. art. state in the first instance may pass with no election. There 13.03— and the federal courts should every concerns, make are critical immediate in addition. effort not to preempt state legislature’s 1, In order to an on May conduct election jurisdiction 1982, primary responsibility. See there is prepa substantial mechanical 2497; Lipscomb, Wise v. 98 S.Ct. at Connor necessary. preparation ration includes Williams, v. 658 conducting proper S.Ct. voter registration, print n.4, 30 (1972); Weiser, ballots, L.Ed.2d 704 ballots, v. ing mailing White absentee advis 2354; Klahr, Ely S.Ct. v. 403 U.S. ing regarding voters the districts of their (1971); residence, and, course, 29 L.Ed.2d 352 providing as near Reynolds Sims, 377 U.S. ly possible 84 S.Ct. for time frame established (1964). 12 L.Ed.2d 506 Texas through process the legislative of this state port denial, their regarding defendants request- refer to U.S.C. the Court whether the State 2a(c)(2), provides § increase such “Yes, that “if there is an plan, ed the enter Court to an interim Representatives, the number of holding Your Honor. It is—-on elections Representative Representa- additional or districts, existing they under the not large tives shall be from elected State malapportioned hand, problems and cause on the one Representatives and the other the dis- running but also necessitate three prescribed by

tricts then the law such congressmen at-large an basis state-wide State.” preferable.” which is not ment was echoed Id. at 13. This senti- Defendants, however, also in their indicated counsel for defendants plaintiffs’ complaints answer amended Upham and Clifford. they agreed implement this Court should interim of its for own the 1982 elections. February post- 5. The order of also This is consistent statements made poned filing prospective deadlines for can- February counsel defendants at the didates for the Texas State Board Education. time, hearing before this Court. At that de- stated, fendants’ counsel “the State does 6. Article Section 28 of the Texas Constitu- object granting to the court the amended mo- explains tion establishes and the functions of petitions thereby tions or amended and assume body Legislative another state Texas Re- —the This jurisdiction point of this matter. At districting given Board. Board is authori- time the State maintains that the does court circumstances, ty, apportion in certain to jurisdiction plan have the to draw an interim Representatives. State Senate House of and/or jurisdic- and the court should undertake that however, authority, Its does not con- extend to Record, 9, 1982, February tion.” Coun- at 12. gressional apportionment. stated, response sel question later to a

939 evaluate, requirements or must be ful organ- duties appraise, to for candidates imple for a court ize, necessary properly other action to sub- filled in order and take congressional apportionment plan. mit themselves election. ment a goal be function or of the Court must One ap- present Texas effort A equality. Providing voter voter provide portion twenty-seven congressional Texas’ majoritarian principle. It im equality is appears precluded. to be Accord- districts plicates requirement many times char is not to be process if Texas’ elective ingly, necessity satisfying acterized as utter completely frustrated and reduced to one person, constitutional command of one confusion, obligated, this is chaos and Court 130, Sanchez, v. 452 vote. McDaniel U.S. required, it is to initiate a remedial indeed 2224, 2230, 101 68 L.Ed.2d 124 S.Ct. that will allow the of Texas to decree State 1833; Finch, (1981); Connor v. 97 at S.Ct. under a con- conduct elections J., (Blackmun, concurring); id. at 1840 apportionment plan.7 Wise v. stitutional 635 Wyche Jury, v. Madison Parish Police 2497-98; v. Lipscomb, 98 at Connor S.Ct. (5th 1981); 1159 Cir. Marshall v. F.2d 1834; Howell, Finch, 97 S.Ct. at Mahan v. 1978), Edwards, (5th 582 F.2d 938 Cir. 410 93 35 L.Ed.2d U.S. S.Ct. denied, 442 61 cert. 99 S.Ct. (1973). (1979). L.Ed.2d Appropriate I. Standards requirement companion A constitutional apportionment is court-ordered meeting obligation” the “unwelcome racially fair.8 requirement This devising implementing congres- rights involves the who are mem people plan, turns sional this Court minority groups. racially A fair bers provided experiences to the guidance by the avoids racial discrimination not di placed politi- of other federal courts luting value of the be cast votes to apportionment. cal thicket This assist- minority groups. members of McDaniel v. generally ance is not form of affirm- 2230; Sanchez, 101 S.Ct. Connor prescriptions regarding ative directions 1828; Finch, (Black at 1840 S.Ct. id. proper methodology procedure to be mun, J., concurring); Wyche v. Madison fashioning apportionment plans. utilized in 1159; Jury, Police Mar Parish F.2d at Instead, warnings it is in the form of Edwards, shall v. 582 F.2d at 938. against taking admonitions certain actions setting goals. or certain outset, At the this Court acknowl admonitions, however, attempt its edges accomplish

These can be its conceptual objectives generally cast into a basic framework that evalu constitutional legisla- consists two coterminous constitutional under stricter standards than a ated outset, Court, expressly throughout opinion, 7. At the this Court This makes determines this apportionment plan that the included in this race or color reference to in the context opinion plan, opposed requirement is a court-ordered im- constitutional plement that the Court body appropriate plan. one enacted a fair is made for reference only. greater State of Texas. The has not State of Texas As will convenience detail, be noted purported apportionment plan recognizes obligated to enact an or this Court that it is any legislative judgment exercise since S.B. 5 of the to follow of section standards legally was made unenforceable the section Voting Rights Act of 1965. Section 5 contem- objection Attorney letter of the against office plates protection for not discrimination Indeed, rep- minorities, General of the United States. resentatives of the State of language but minor- racial also express- have 1973b(f)(2). Texas See 42 §§ ities. U.S.C. 1973c and ly asked that this an interim Court fashion Accordingly, recognizes this Court that one Although plan. incorporates much Court objectives implement plan is to devise its plan, completed plan of S.B. 1 into its own fair, only racially that is not but also fair represents the remedial directive of this federal language minorities. plan, court. As court-ordered no section 5 preclearance necessary. See McDaniel v. Sanchez, 452 U.S. (1981). L.Ed.2d 124 940 124, 1878, attempt properly apportioning at 91 S.Ct. 1858 at 29 L.Ed.2d 363.

ture’s Finch, Finch, 1833; v. 97 at state.9 Connor S.Ct. 1833. 97 at See also Connor v. S.Ct. simply operate 584, A does not Sims, 533, federal court Reynolds 377 84 v. U.S. S.Ct. legisla- latitude as a 1362, with the same state 1393, (1964); 12 L.Ed.2d 506 Graves v. Supreme This a function of the ture. is Barnes, F.Supp. In 446 563-64. other repre- perception Court’s least words, “[t]he the federal courts should avoid en government of the sentative branch must croaching upon legislature’s lawmaking repre- take care when it reforms the most prerogative by “the following policies and Edwards, sentative branch." Marshall v. state, preference of the as expressed in Wyche v. 582 F.2d at 934. See also Madison statutory provisions and constitutional or in Jury, Police 635 F.2d at 1159.10 Parish reapportionment plans proposed by Weiser, legislature.” state White v. 93 Consequently, many appor choices for S.Ct. at 2355. might if pass tionment that muster enacted by representative body the state’s will fail As long proposals the state’s do if aby ordered federal court. This is be not run afoul of requirements the strict cause “a is state the institution court, they encountered may district is far the best situated identify be utilized. The to pay Court allowed policies and then reconcile traditional state choices, policy deference to certain such as constitutionally within mandated providing districts, compact contiguous population framework of equali substantial utilizing boundaries, natural and historical ty. The possess federal courts contrast preserving integrity county lines. compromise no distinctive mandate to some 1833; Finch, See v. 97 Connor S.Ct. at Kil conflicting apportionment poli times state Hill, garlin 820, 822, v. 386 U.S. 87 S.Ct. cies in people’s name.” Connor v. (1967); Howell, 17 L.Ed.2d 771 Mahan v. 93 Finch, 97 quoting S.Ct. 1833-34 Roman 979; Wyche S.Ct. v. Madison Parish Police Sincock, v. 377 84 U.S. S.Ct. 1151; McKeithen, Jury, 635 F.2d v. Taylor result, 12 (1964). L.Ed.2d 620 As a Cir., Indeed, 5th 499 F.2d 893. if the Court purely political Court not consider the type, follows the state’s proposals of this might appropriate considerations that may reduce being the incidence its found legislative for Wyche, bodies. 635 F.2d at acting partisan in a manner. v. Connor 1160. Finch, (Blackmun, J., 97 S.Ct. 1828-29 Since reapportionment “inevitably concurring). sharp political court, has impact,” a district in fashioning a reapportionment plan, legisla This deference to the state “should not pre-empt lawmaking ture’s prerogative task without limitations, nor upon ‘intrude policy anymore state however. than If adherence to the ” necessary.’ Weiser, White v. proposals 93 S.Ct. at state’s would result in the district Chavis, 2355 v. quoting Whitcomb 403 being satisfy U.S. court’s unable to either of its facing Court, fashioning plan, difficulties this Court in its effort 10. This its remedial goals precisely part to achieve large its coterminous Supreme relies on the Court’s Appeals stated Kirksey involving the Fifth Circuit Court of decisions cases Supervisors v. so, Board of of Hinds Coun doing of state or houses senates. how- ty, (en Mississippi, banc): 554 ever, F.2d 152 acknowledges Supreme the Court that the applies Court one-man, stricter Achieving standards when evaluat- one-vote democ- legitimacy ing congressional apportion- racy of a excluding politi- without minorities from evaluating ment than it does complex when challenges cal life is a task that apportions requires state house or senate. best of many Ma- examining intellects and Howell, citing Kirkpa- han v. community, past, present S.Ct. at facets Preisler, v. problem trick susceptible U.S. future. The is not (1969); solutions, Gaffney Cummings, simplistic of they L.Ed.2d however seductive 2325-26, may appear. 93 S.Ct. No 37 L.Ed.2d mechanistic solution is Court, (1973). adjusts philosopher’s accordingly, an alchemist stone that will problems past applying present turn all the the stricter standards when these gold. teachings. to future

941 proposal sub Accordingly, if a state 1458. goals providing constitutional coterminous — racial minor voting potential merges court or racial fairness —the equality voter ities, required is not court the district necessari- This limitation should not defer. apportionment. choice of to the state’s defer require some variance ly may Indeed, barrier “any insurmountable the Court absent in order for plans proposed state’s the dis plan,” devising it faces. alternative] the stricter standards satisfy [an to refrain from (1977); duty court has a Finch, trict 97 at 1834 v. S.Ct. Connor Johnson, 402 Connor v. proposal. state’s Weiser, also 93 at See White v. S.Ct. 692, 1760, 1762,29 690, L.Ed.2d 560, 91 Barnes, 564 S.Ct. F.Supp. U.S. v. 446 Graves (1971). 268 forgotten that (1977). never be It should to be implemented is plan ultimately plan. court-imposed

evaluated as Providing Equality Voter A. are not im proposals If the state’s of the of Texas population The State incorporation into the mediately capable during the decade substantially expanded help would not because Seventies, Court’s a rate of 27.1 growing at courts, required of federal goals serve the growth, of this Texas percent. As a result go be is not allowed to represent- the district court three additional apportioned was other, proposal inquire into Congress. hind the In- atives to the Unitеd States numerous, made policy choices perhaps twenty-four representatives stead proposal. The arriving at its Texas is now apportioned previously, the state overriding objective of the district court’s twenty-seven Congressmen. entitled to equality provide substantial plan must be Texas must be Accordingly, the State of diluting politi population, while not These twenty-seven parts. divided into strength cal of members contain twenty-seven parts or districts must Police groups. Wyche v. Madison Parish equal number of voters. approximately an is bound to Jury, 635 F.2d 1151. The Court “the com- is a function of requirement voting equality apply equitable standards of 1 2 the United States mand of article § [of Howell, v. 93 and racial fairness. Mahan cho- Representatives be Constitution] 989; Finch, 97 at Connor v. S.Ct. S.Ct. states,’ People ‘by the Several sen 1833; Jury, Wyche Madison Parish Police v. practica- nearly that as means [which] v. 635 1160-61. also Beer Unit F.2d at See elec- vote in a ble one man’s 130, States, ed 425 96 1357 at U.S. S.Ct. as much as another’s.” tion is to be worth n.11, (1976) quoting 1363 47 L.Ed.2d 629 (1973) Howell, v. 93 at 983 Mahan S.Ct. States, 422 City of Richmond v. United U.S. 526, Preisler, 394 citing Kirkpatrick v. U.S. 2296, 2301, 358, 245 95 45 L.Ed.2d S.Ct. 1225, (1973), Wells 22 L.Ed.2d 519 89 S.Ct. (1975). for a court-ordered The watchword 1234, Rockefeller, 89 v. 394 U.S. S.Ct. “fairness.” apportionment plan is (1969), Wesberry v. 535 L.Ed.2d Sanders, 84 S.Ct. providing task of 376 U.S. The federal court’s v. Re- (1964). also White See implementing congressional appor L.Ed.2d 93 S.Ct. exposed gester, 412 U.S. “inevitably tionment (1973); Gaffney Cummings, v. accomplished L.Ed.2d 314 sensitive one that must be 37 L.Ed.2d 298 93 S.Ct. in a manner ‘free from 412 U.S. circumspectly, and Sims, 377 U.S. (1973); Reynolds v. or discrimina any taint of arbitrariness ” 506; Wyche v. Madi- Finch, L.Ed.2d at 1834 v. 97 S.Ct. S.Ct. tion.’ Connor 1151.11 Sincock, Jury, 635 F.2d Parish Police v. 84 S.Ct. son quoting from Roman judicial Supreme involve- 11. The has also noted that motivated Court mental tenet ment in the first evaluating legislative plans: place what has been context of legislative ap- “political thicket” of called the leg- equal requires protection clause Carr, portionment. 186] Baker v. [369 nearly equal popula- islative districts be (1962). L.Ed.2d 663] 691 [7 82 S.Ct. tion, given person’s may that each vote so weight representa- equal in the election of Finch, at 1834. Connor recognition It was of that funda- .... tives analysis serving retically as the practically. foundation theoretically It is one-person, population one-vote or problematic because there is no set maxim principle is equality easily understandable. of what population variances from the ideal It suggests person living that a in a con- are de minimis and what are constitutional gressional larger district with a population ly impermissible. Indeed, the Supreme than “underrepresented.” another district is rejected Court arguments has by states that People living congressional in a district “there is a fixed percentage numerical or relatively with a smaller population are population enough variance small con “overrepresented.”12 sidered de minimis and satisfy without question” the requirement that “as nearly In order for this Court to achieve its practicable congres one man’s vote in a goal constitutional of population equality in sional election is to be worth as much as Texas, State Kirkpatrick Preisler, another’s.” v. 394 must devise and implement “with 526, 1225, 89 U.S. S.Ct. 22 quot L.Ed.2d 519 little more than de minimis variation” of ing Sanders, Wesberry v. 84 S.Ct. at 530 population13 among twenty-seven con (1964). gressional Sanchez, districts. McDaniel v. 2230; 101 Chapman Meier, S.Ct. at v. Beyond the problems theoretical 1, 751, n.19, 95 S.Ct. 766 and 42 achieving variance, de minimis population (1975); L.Ed.2d 766 Finch, Connor v. 97 there practical are difficulties that have 1833; Coleman, S.Ct. at Connor v. 440 U.S. recognized by been Supreme Court as 612, n.4, 99 S.Ct. 59 L.Ed.2d 619 justifications for Initially, variations. (1979) (Marshall, J., dissenting) (court-or Supreme Court recognized has that the ba- plan given dered less deference legisla than sic statistical materials utilized courts— tive apportionments as to variances from census data taken ten-year intervals— population equality). upon Based the 1980 are only “as accurate as such immense un- data, census population the ideal for one of be, dertakings can but are inherently Texas’ twenty-seven congressional districts less than absolutely accurate.” Gaffney v. 526,977. words, In other this Court Cummings, 93 S.Ct. at 2327. “Some devia- goal achieves its population equality if it permitted tion is for purposes of adminis- implements a plan that apportions the State convenience, trative adherence to historical of Texas twenty-seven into congressional boundaries, or geographical recognition districts, each of which population has a of of separate political Wyche units.” v. Mad- 526,977or a de minimis variation from this ison Parish Jury, Police 635 F.2d at number. citing Howell, Mahan v. 410 U.S. While the principle of “no more than de S.Ct. (16.4% 35 L.Ed.2d 320 deviation minimis state, variation” is easy to applica- approved) Mundt, and Abate v. 403 U.S. tion of the rule is more difficult both theo- (1971) 29 L.Ed.2d 399 illustrate, people hypothetical Congressional population variance To of +45 if from the population people District A has a total norm. It would have a deviation of +81.82%. Congressional popu- District B has a total District B people would have a variation of -45 people, persons living Congres- lation of ten population from the norm and a deviation of underrepresented, sional A District are while -81.82%. living Congressional those District B are overrepresented. This is because both districts requirement 13. The de minimis variation is an single representative. are allowed a outgrowth Since the of the stricter standards a federa l solitary congressman repre- A prepares court faces when it its own remedial people, constituency sents 100 the voters in his Supreme decree. The Court “has tolerated casting ballots worth the value of those Vio greater flexibility fashioning somewhat people living cast in District B. remedies for violations of the one- If Districts A and B were the two con- person/one-vote Sanchez, rule.” McDaniel v. gressional state, popu- districts in the the ideal Howell, 101 S.Ct. at 2230. See also Mahan v. lation for a district would be 55 410 U.S. 93 S.Ct. 35 L.Ed.2d 320 people. result, As a District A would have a (1973). should follow fashioning plan, the court geographic (11.9% upheld). [a] deviation standards, includ- appropriate Section also make mathe- people location of judicial body ing if there is an of administrative impossible matical exactness 5 cases.” compact contiguous precedents developed in Section attempt provide Sanchez, McDaniel v. at 2236 101 S.Ct. districts. quoting Cong., 1st 94th S.Rep.No.94-295, event, Supreme Court any Sess., (1975). 18-19 matter, that, practical as a recognized has Right precision Voting or is hard Act exactness mathematical Section requirement. jurisdiction ly a applicable workable constitutional whenever a covered Gaffney, quoting Reynolds any at 2326 vot- 93 S.Ct. enact or seek to administer “shall Sims, at 1390. Such acknowl or prerequisite 84 S.Ct. or ing qualification to es edgment explains standard, the Court’s refusal with re- practice, procedure or for tablish theoretical norm what a consti a from that force spect voting to different tutionally de minimis variation would be. 1, 42 1972.” U.S.C. or effect November Court, however, effort achieve Georgia in its to v. Supreme 1973c. The Court § objective equali of the constitutional voter States, at 1708 expressly United 93 S.Ct. satisfy has the most severe ty, attempted to is a plan that an stan- apportionment held requirements prec for mathematical possible dard, requiring sec- practice, procedure or ision.14 declaratory 5 either a tion clearance of judgment the United States Raciaiiy Fair Plan A

B. or by of Columbia Court for the District Attorney General appropriate action of the In order achieve this Court’s second Clearance the objective implement plan a United constitutional States. — by a provides equality apportionment plan that is is achieved deter- racial Court —this guided mination the States District Supreme opin- the Court’s recent United or the the case of McDaniel Sanchez. ion in v. In for the District of Columbia Court Attorney that the opinion, Court States General Supreme the referred United plan purpose “does the will history of section 5 of the not have Act, denying abridging have the or Voting Rights which stated that “in effect 1158, by body seeking requirements Wyche, a 14. In than the faced 635 F.2d at Fifth Circuit “ implement apportionment scheme for a noted an deviations ... ‘[u]nder [have 10% prima representatives or state senate. to be of facie constitu- state house of been] considered 526, Preisler, Kirkpatrick validity legislatively 89 tional context of 394 U.S. S.Ct. ... in the v. 1225, (1969) apportionments,” quoting Wells v. v. 22 519 Rock enacted Connor L.Ed.2d 1234, Finch, efeller, 542, 22 L.Ed.2d 431 U.S. 97 S.Ct. 52 394 U.S. 89 S.Ct. (1969) leading (disapproving ap- L.Ed.2d 465 portionment a district court’s 535 regarding cases are considered congressional apportionment of a state with state 16.5% appor senate deviations in state districts and invalidated state districts. These cases repre- congressional providing deviations in the state house of tionment statutes 19.3% districts). Gaffney popu See having sentatives mings, v. Cum- districts deviations from total respectively. 412 U.S. 93 S.Ct. 37 L.Ed.2d lation norm of and 13.1% 5.97% (1973) (upholding apportionment 298 state The Court in those cases that Constitu held representatives state with permits only population senate and house tion variances those population norm); from congressional total deviation among that “are una districts 7.83% Regester, White 93 v. 412 U.S. S.Ct. despite good-faith effort to achieve voidable a (1973) (upholding appor- 37 L.Ed.2d 314 justification state equality, absolute or for which Representa- tionment of Texas State House of Kirkpatrick, at 1229. See shown.” 89 S.Ct. population tives norm). total deviation Weiser, at 2352. The also White v. Supreme 93 S.Ct. 9.9% that, indicated con Court has good plans, make a of state the state must text While the de minimis threshold that this precise mathematical satisfy implementing congres- faith effort to achieve Court must apportionment plan a plans, equality. In the context court-ordered sional certain, is undefined and un- precisely the inter recognizes articulate it is the Court “must ests which this Court more strin- any [equal gent legislature justify requirements deviations from faced than the a state Meier, Chapman seeking impose population] v. appor- that is an standards.” stringent at 766. tionment scheme. It is also more S.Ct. color, dilute on account of race or scheme to mi- right vote guarantees or set contravention nority strength. Accordingly, a voting fed- 1973b(f)(2) of forth in section this title.” 42 upon apply appro- eral court is called way, Put U.S.C. 1973c. another if § priate analysis implement appropriate parties are satisfied that any possible racially fair avoid malevo- apportionment plan racially does not have a purpose lent of the states.17 effect, discriminatory purpose or noted, the requirement As second sec- law.15 See will be enforceable as 28 C.F.R. apportionment plan tion is a 51.19; Beer; Panior v. Iberville Parish § denying that does not have the “effect” of School, Cir., 5th F.2d at 104-05. abridging right or to vote on account of Court, Consequently, in or Supreme or color. The Court case of race implement racially plan, der to fair must Beer v. United States is the definitive state- proposal racially devise a that has neither a ment on 5 term “effect” what section discriminatory purpose nor effect.16 Re States, Georgia also See United means. garding the purpose requirement, a district 411 U.S. L.Ed.2d plan, definition, court’s cannot have a Beer, (1973). analysis after and review racially discriminatory if of its purpose one the legislative history of section express goals two is to implement racially purpose Court stated “the of section 5 fair scheme. While boot arguably this is been to no always has ensure that strap is, proposition, ap nevertheless changes procedure would be made that propriate are analysis. federal courts implement retrogression position’ times summoned to would lead to a remedial plans a of purposeful as result a state’s use respect of racial minorities with to their course, guarantees disproportion 15. Of 5’s reference to the a § It is clear demonstration of 1973b(f)(2) necessary effect, alone, impact injurious standing set forth in makes it § ate normally or is appropriate parties that the apportionment plan satisfied insufficient to establish a constitu Bolden, does City not have a discrimina- tional violation. U.S. 55 at of Mobile v. 446 tory purpose regarding language 67, 1500, or effect mi- 100 S.Ct. 1490 at 64 norities. (1980); Village Arlington L.Ed.2d 47 of 252, Heights, 555, 50 429 U.S. 97 S.Ct. L.Ed.2d is, course, purpose It the district court’s (1977); Davis, 229, Washington 450 v. 426 U.S. analyzed purpose that must be the state and not 2040, (1976). 96 S.Ct. 48 L.Ed.2d 597 But see legislature proposing possible in rem- 356, Hopkins, 1064, Yick Wo v. 118 U.S. 6 S.Ct. edies, although may incorporate por- the ‍​​​‌​‌‌‌​​​​‌‌​​‌​​​​​‌‌​‌‌‌​​​‌​‌‌‌​​​​‌‌​​‌​‌‌‍court (1886); Lightfoot, 30 L.Ed.220 Gomillionv. 364 legislature’s proposals. ap- tions plies itAs 339, 125, (1960). U.S. 81 S.Ct. 5 L.Ed.2d 110 judice, propos- to the case sub the State’s However, important starting point an and nec al, 1, legally is unenforceable due to a 5§ essary complaining element for those of im objection Attorney of the United States Gener- properly motivated actions is Attorney objected, al. When the Court no General legislation impact to demonstrate the diluting minority has the longer position was in a to examine strength. legislature’s purpose enacting legisla- incorporating has no Court intention result, only purpose tion. As a ined is the to be exam- any part dispro- proposal of a state a that has purpose implement- of this Court portionate impact injurious or on minori- effect ing plan. own its It, therefore, incorpo- ties. rating has no intention might argued It be that this Court should any part proposal of a state that could purpose examine the ment of the behind the subject State’s enact- challenge be ato valid constitutional apportionment plan has minority voting strength. that it dilutes Ac- proposed remedy evolved into its in order to cordingly, possibility purpose- is no there possibility aiding avoid the the State in dis- fully discriminatory plan may implemented criminating against rectly by doing minorities indi- indirectly. directly. what the State could not do While this Court will way discuss the § 5 effect 17. This Court no intends to indicate that detail, greater pointed standard it should be it has determined State of Texas acted with plaintiff’s out that the first purpose passing element of a claim a malevolent question S.B. 1. That apportionment plan simply that an constitutes an im- not before this Court. This to demonstrate that if the in the permissible gerrymander racial in violation of Court seeks possesses proper objectives Constitution is to demonstrate the chal- district court lenged legislation satisfies, disproportionate appоrtionment plan, had a im- creation of an it pact injury or some in fact. one of the 5 standards. §

945 (1980). 2916, 100 64 L.Ed.2d 807 of the electoral fran- S.Ct. See effective exercise 124, Chavis, chise.” at 1364. 96 S.Ct. 403 also Whitcomb v. U.S. 91 1858, (1971); 29 363 Marshall S.Ct. L.Ed.2d imple- to facilitate order for this Court 934-36; Edwards, Dove v. 582 F.2d at v. necessary it is plan, mentation of its own Moore, 1152, (8th 1976). 539 1155 Cir. F.2d analyze Supreme Court’s definition of Initially, section 5 effect standard. Further, minority group is helpful Supreme posi- to review the Court’s member to be represented entitled regarding tion an “effective exercise recognizes there is group. This Court electoral franchise.” of some language indicating the basis con regard There are certain truisms particular that a stitutional claims to be ing apportionment plans. the effects of system prevents group election Initially, group no is entitled be included electing of its race” to “members district, in a single legislative see United However, the race of governing bodies. 144, Organizations Carey, Jewish v. 430 U.S. person elected is not factor ultimately (1977), 97 51 229 S.Ct. L.Ed.2d or determinative of whether have its clout maximized. Beer v. n.8; States, plan is fair.18 racially

United 96 at 1361 City S.Ct. States, v. 95 Richmond United U.S. Indeed, appor- of an implementation 245; 45 L.Ed.2d Whitcomb v. attempts provide pro- tionment Chavis, 1858, 1875-78, 91 S.Ct. U.S. portional or “safe” dis- representation McKeithen, (1971); Taylor L.Ed.2d 363 v. a racial minority tricts —districts in which quoting at 909 Turner F.2d v. McKeith group elect a member “probably” could en, (5th 1973). 490 F.2d Cir. It is group being its guarantee no effi- —has equally group true that no is entitled to must Initially, cacious.19 such a neces- proportional representation. City of Mobile sarily presume that racial and ethnic groups Bolden, v. 55 at 100 S.Ct. will vote a single unit. “racial (1980); Reges L.Ed.2d 47 White v. vote groups always and ethnic do not ter, 2339; Chavis, Whitcomb S.Ct. at phalanxes ... the realities solid and 91 S.Ct. at 1872. “The Constitution ... minority partisan politics may enable a in cognizable does that each not demand ele political some to exact more circumstances ment constituency representatives elect a its vote to one by swinging concessions in voting strength. proportion to its White majority-race two candidates whose follow- 765-66, v. at Regester U.S. 93 at [412 ing approximately equal by is than it could Wyche 37 at v. L.Ed.2d Madi 234].” selecting identity.” a of its own candidate son Jury, Police 635 F.2d Parish at 1159-60 Jury, Sides, Wyche v. Parish Police 635 quoting Madison Nevett v. 571 F.2d 216 denied, (5th Edwards, 1978), v. citing Cir. cert. 446 F.2d 1160-61 Marshall U.S. stated, City plurality any 18. in of Mobile The “The nor other characteristic account right might typical Fifteenth Amendment does not that of their race. entail be McKeithen, Negro City Taylor to In Whit have candidates elected.” v. 499 F.2d at 905. Mobile, Chavis, rejected Supreme at 100 v. S.Ct. at 1498-99. comb Court plurality equal holding, “right The also district which it character held court’s participation process “expressive general propo in the electoral not as more does ized defined, protect any however, ‘political group,’ any group sition that with distinctive interests represented legislative if from electoral defeat.” Id. at The be halls is 1505. must it enough v. one Court’s decision in Whitcomb has numerous to command at least seat Chavis standing represents majority living proposition been as for the in an described and a area sufficiently single compact that: constitute a 1875. member district.” 91 S.Ct. at ghetto people were entitled to political process participation in the and to Note, Group Representation 19. See Race- representation people, and as the record did Apportionment: The Roles of States Conscious they not show that had been that. denied Courts, Harv.L.Rev. Federal recognition But not entitled to were (1978). dwellers, ghetto representation poor as black resentation, Additionally, even 582 F.2d at 934-36.20 as a remedial measure.21 “[a] v. Wyche Jury, Madison Parish Police gerrymander court-ordered .racial Edwards, 1161; v. Marshall would blacks sizable F.2d assure that form a F.2d 927. majority single in a district electoral be effective nearly guarantee as a every factor The decisive case access as of two or more dis- the creation is is minority group whether allowed “ef popula- tricts with substantial black voter participation proc fective tions such candidates dis- that all in those Chavis, ess.” Whitcomb v. 91 S.Ct. at 1968 responsive

tricts must be to the needs and Sims, 1383; Reynolds citing v. S.Ct. at aspirations of the black electorate." United Buxton, Lodge v. 1358 at 639 F.2d 1374.22 Sup’rs v. Cty., States Board of of Forrest placed While not entitled to be Cir., also See 5th 571 F.2d at 956. district, voting potential, to maximize their Panior, 105; Taylor v. McKeith- 536 F.2d at proportional representation, or to have en, Edwards, 902; Marshall v. 499 F.2d at office, group members of their elected to Finally, 582 F.2d 936-37. can be there minority groups right members of have a little doubt representation that effective placed political process not to be outside the ethnicity not a function of alone. unable, they may in such a manner that be Accordingly, efficacy of apportion- able, an or less influence elected officials— attempts ment provide propor- black, Hispanic, whether the official or representation tional or safe is du- districts responsive white —to be sensitive bious at part best. It is least because “system government their needs. A of this factor courts have been . people serves the interest of the must serve against admonished fashioning appor- an people.” Lodge the interest all the Buxton, tionment with an eye scheme toward af- means, 639 F.2d at 1374. creating definition, firmatively racially rep- balanced minority members of groups partisan politics” 20. Since repre- “the realities im- A with notion that must be District pact upon whether a district be Negro, can even char- sented is with the notion district, Wyche acterized as a safe represented by that District B must implicitly that the Caucasian, Jew, dictates federal courts faced by a District D C fashioning with a remedial Catholic, decree should not and so on.... racial elector- question involve themselves bloc vot- register system weights along al votes one ing. result, As a the court is not allowed to heavily line than racial more it does other assumptions necessary make the to create a system, by That votes. called, whatever name it is “safe” district. community, is a in a devisive force emphasizing between differences candidates pointed It has been out that remedial meas- voters that are irrelevant in the constitu- proportional representation ures aimed at race, religion, tional sense. Of course like process equated the election cannot be plays important role in the choices which programs remedial racial in other contexts among individual voters make various virtue of the numerous extraneous factors in- government But has no candidates. designing business political Wyche volved in the arena. v. Madi- along electoral districts racial or 1161; Jury, son Parish Police 635 F.2d at Mar- religious lines. Edwards, shall v. 582 F.2d 927. Rockefeller, Wright v. 376 U.S. 84 S.Ct. question, deplores Without this Court the 611, 11 J., (1964) (Douglas, L.Ed.2d 512 dissent people fact of life that some choose between ing) (citations omitted). Regents See also of candidates because of the color of skin. On the Bakke, University of 438 U.S. California v. hand, great other any care must be taken to avoid 2733, 2783-84, (1978) 98 S.Ct. 57 L.Ed.2d 750 that, so-called remedial measure of instead J., (Brennan, City Mobile, concurring); of Ala aiding races, integration mаy perpetuate the of J., Bolden, (Brennan, v. at 1511 bama 100 S.Ct. separation by advocating a or severance that concurring); Carey, (Burger, 97 S.Ct. at 1020 represented by one race is entitled to be a J., McKeithen, dissenting); Taylor v. C. 499 member of race. It has been said F.2d 909-910. at registers, religious Racial electoral like ones, place society have no in a honors participation 22. “Effective does not mean the people, by the Lincoln tradition —“of the the race, sex, right to have members of one’s or people, people.” for the Here the individual group political Lodge elected to office.” v. important, race, creed, is not his his or his Buxton, 639 F.2d at 1374. principle equality color. The is at war less process, and that than political the practical without hin- right to vote have a however, always will indicate no this, percentage fixed it means Beyond drance. to political or reduced access and access leading to nomination “political process instances, be, process, many would in open participa- to equally election [must be] is the size by the Court. This because error mem- question.” The group tion in minority necessary for population of the oppor- have no less group must bers it- political district impact depends “partici- do residents tunity than other to attempt be amiss to self. This Court would to elect pate political process and in percent- or to establish a mechanical fixed White v. Re- legislators their choice.”23 universally with- applied could be age that citing v. gester, at 2339 Whitcomb 93 S.Ct. question.24 out Chavis, Allen v. 91 S.Ct. at 1872. See also Elections, Board State a similar and related This Court faces Reyn- 1 citing at 22 L.Ed.2d S.Ct. problem applying prin- defining Sims, 533, 84 olds v. 377 U.S. S.Ct. retrogression. Again, ciple of neither Con- 506; Georgia v. United 12 L.Ed.2d explic- gress nor the courts have articulated States, (1973); Wyche S.Ct. at Determining whether a new directives. Jury, Parish Police 635 S.Ct. Madison plan or increases decreases apportionment 1160; McKeithen, Taylor v. 499 F.2d power minority group mem- voting plan necessarily to prior bers relative is, imprecise. things, proble- It all above standard Section [under 5] “[T]he Beer, n.12 matic. See 96 S.Ct. by determining only be satisfied fully can J., (Marshall, dissenting). groups ability minority whether the .. . process in to participate political to This standard Court’s is fairness is augmented, standard, elect their choices to office together with equity. diminished, change or limitations, not affected pretermits its inherent uniform Beer, 96 at 136 affecting voting.” explanations every instance. This Court H.R.Rep.No.94-196, quoting p. (emphasis equitable jurisdic its is directed exercise original). Accordingly, a court-ordered avoid tion and discretion and the taint not must by providing reasonable and arbitrariness retrogression cause minori for its It is ability explanations rational actions. groups every to view diverse facet ty responsive required elect members Therefore, no Congress regardless single myopic eye. of the with a color — will percentage or formula be seen person skin of the elected. fixed every circumstance without applicable ability “access this Court define of a particularly This is true variance. while same process,” at the diversity state with size avoiding appearance time of arbitrari- of Texas. State ness, is a difficult Neither the Con- task. gress pre- begins approach by nor courts have articulated a its This Court that, no prescription. examining cise mechanical recognizing There the effect Indeed, stating formula. certain that effect analyzing that a its whether population retrogression minority percentage causes limit evalua- single always strength, district will indicate access to the Court cannot its Dorsey, is the be v. U.S. 433 at 85 S.Ct. clear lesson to learned from Fortson 498, 501, Supreme against Richard Court’s a 13 L.Ed.2d and Burns v. admonitions son, utilizing court when 384 U.S. 73 86 S.Ct. 1286 at multimember districts fashioning warnings apportionment plans. The L.Ed.2d 376. Supreme a result of view that are Court’s submerge conceivably multimember districts “tend elec fash- formula could be 24. Such a overrepresent facing toral minorities electoral applied by legislative body a ioned majorities.” Lipscomb, body responsibility apportionment. Wise v. 98 S.Ct. That of n.5 panoply political 2497-98 cited therein. See also may cases fac- of consider the full Chavis, quoting v. option. Whitcomb 91 S.Ct. has no tors involved. This Court such districts that such group’s ability tion to those contain a political build coalitions high “proba- of population minorities that increasingly become to the determi- critical bly will member of the represented” be a minority group nation whether the has As minority group. previously, noted mi- ability government to elect officials of nority capable significant are ac- groups its choice. process cess in political in districts Significantly, Court may not they proba- little chance which there is that political consider the factors innumerable bly will to elect a member of a be able may minority group’s affect that a access to This form of is a minority group. access process. left political It is to consider group’s ability “swing” function of only minority populations and from one the election’soutcome in favor of candi- percentages those determine whether its date or another.25 retrogressive. is also is It clear that Another related factor determin in figures population for total are not the de ing is the retrogression minority size of the analyzing retrogres terminative criteria for population the district under the that had Supreme sion. has recognized Court “[T]he previous plan. significant If a district has a weight person’s that ‘if it is the aof vote minority population, percentage such as a matters, population total if sta —even percent, over 65 changes minor occasioned accurately may actually ble and not taken— by an apportionment plan, up or either body reflect that whose voters vote must down, probably will have little influence on for weighed purposes be counted and the minority group’s access to the reapportionment, persons’ because ‘census process. course, depend, upon It will ” Wyche, are not voters.’ 635 F.2d at 1162 or, whether is truly the district safe quoting Gaffney Cummings, v. reason, only whatever marginally safe.26 (1973). 93 S.Ct. 37 L.Ed.2d 298 hand,

On the other minority group members result, factor, As important a perhaps “[a]n residing historically in districts that have single significant most one in determin had minority populations small not are like dilution,” ing voting age popula vote is the ly to a retrogression realize tion of the districts. Id. at strength result of a as a decline their 1162 and cases cited therein. They simply numbers. had little electoral impact Conversely, from the outset. their acknowledges This Court also electoral can clout be increased view point apportionment plan that an through apportionment plan an providing must be evaluated on a statewide basis and substantial percentages. increases their focus should not be isolated on individual may areas of the state that be less favor minority

Districts popula- with moderate a minority. able to Piecemeal review of the high nor percentages— tions—neither low Finch, plan may misleading. Connor analyze. most difficult to This is a (Blackmun, J., at 1840 through funсtion of difficulty determining Court, the “magical” concurring). nevertheless, percentage might place must a minority group position recognize face the realities of the being state capable of influencing minority group an election. When members are not borders; the district’s minority percentage spread evenly its throughout moder- ate, political most, instances, factors incumbency, such as if many minority popu economics, education, minority and the particularized lations are concentrated course, sight 25. Of containing minority population the Court cannot lose 26. A district sixty-five fact percent greater generally of life districts characterized “safe” or rec- minority group ognized by Department enhance the access of to minority members as a Justice district greater degree minority representative. capable electing than do districts in which result, group only degree members have See Beer. As a impact they may minority change popu- such that be able to affect the that reduces a district’s outcome of percentage an election. lation to some below re- 65% impact. group’s duce the be reasonably such as this could termed geographic Consequently, much areas. necessarily will focus analysis retrogressive. particularly the Court’s This is true if Specifical- on of thé State. strong individual areas district fails single the so-called even Texas, major minority concen- ly, three provide only a seat but enhances “safe” Dallas, Houston, appear trations swing minority ability an group’s Texas areas. South another, since election one or direction minority conceivably capable was group analysis focuses particularized This achieving reapportion- this result before possible Court’s on a result of the definition ment.27 having areas concentrated districts in minority The Court populations. must take final An additional and factor group “packing” care to a of minori avoid by faced this is the fact Texas Court and, single congressional ties into a district apportioned congressional new three doing so, political strength reduce This a one-on-one com precludes districts. previously part minority a enjoyed by existing parison between the group. briefly this This Court addressed plan. and this Accordingly, Court’s foregoing regarding issue in discussion its provide this Court some must reasonable guarantee problem attempting methodology analyzing for the increased that the of a “safe” creation district would number of districts in. order determine enhancing be an means of a mi effective handling whether the method of Court’s nority political group’s process. access to the retrogressive these three districts has a ef noted, guarantee As be no there can analysis fect. This its system initially such an will be Court bases election efficacious. To the is of the new and their contribution contrary, agreement no districts “[t]here two-step political plan by analysis. whether the interests of a mi to the Court’s a nority group First, best percent maximized determines what Court district, single overwhelming majority in a age minority population. of the state is majorities bare in more than one district or Second, is percent. found to be 33 a a proportion substantial voters in compares average minority popu Court Panior, number of districts.” F.2d at congressional lation of the three new dis McKeithen, 105 quoting Turner v. 490 F.2d minority percentage tricts statewide 1973). (5th 197 n.24 Cir. average percent. minority of 33 If the new population percentage of the three con

Attempts single strong to create a dis- greater than the gressional districts accomplished normally may be trict is,28 which it minority percentage, statewide diluting voting power in minority surround- reasonable, although superfi a somewhat ing point that districts to the elected offi- cial, be made that meth impunity may cials conclusion ignore spe- “could congres new incorporating od of the three group cial [minority needs of members] McKeithen, retrogression a those sional districts did not cause Taylor districts.” See minority strength. 499 F.2d A at 902. scheme in course, strength. fragmenting 27. Of of influence in If occurs at the loss surround- this time ing may compensated augments and in a manner that voting or diminishes districts for en- strength enjoyed, previously hanced elsewhere in the state. reason- access however, retrogression wary, may ably A as a or court must be be characterized minorities, “packs” thereby political process. its access to the scheme causing retrogression in electoral access in plan is 28. The overall effect of this Court’s one area of the state with no concomitant in- purpose greater For the discussed detail. crease in elsewhere. such a access Without however, analysis, 25 has a minori- this ty population increase, accompanying clear reason- District 26 has mi- ably may retrogressive. be labeled 38.7%. nority population 7.01%, and District 27 has course, Court, fashioning Of a remedi- average population of a population percentage 64.25%. order, cognizant districting al of how a the three new dis- “fragments” scheme mi- concentrated tricts, therefore, is 36.65%. nority group minority voting dilute and provides equality voter racial for the both analyzing method

An additional great- dis- in congressional the new As will be demonstrated three fairness. effect Court, detail, fashioning its reme- to determine the net difference er this tricts is minority popu- paid great propos- districts’ deference to the dy, between three has minority popula- they lations and the statewide of Texas as were als the State adjust- mathematical Legislature tion. This makes passing expressed minori- any fragmentation for of the Specifically, great ments ma- ill-fated S.B. 1. It ty population among incorporated three districts. jority provisions l's finding is achieved first the numerical created in full. All but six districts 15, 24, 26, minority percentages for variances 1—District by S.B. and the statewide precisely individual districts plan 27—are utilized in the Court’s minority population percentage of 33.0%. they are defined in the enact- minority population District 25 has a 38.7 ment. percent. percent for + This makes 5.7 Equality Voter A. difference from the statewide There total. The State of Texas is to twenty- entitled percent is a + 31.25 difference between representatives seven to the United States has a statewide total and District Congress. The 1980 census data reveals minority population percent. of 64.25 Dis- that the popula- State of Texas has a total minority population only trict 26 has a 14,228,338 tion people. Accordingly, each result, percent. 7.01 As a it differs from twenty-seven districts from which minority population by-25.99 the statewide will representatives Texas elect its should percent. 526,977, have a total population of or a de minority The net between difference minimis variation from this number. The population in new the three districts and plan Court’s satisfies constitutional ob- the total statewide population is jective of equality voter under the most + positive 10.96. This leads to difference stringent requirements of mathematical ex- reasonable, although again somewhat actitude. superficial conclusion the Court’s The average deviation in popula- district incorporating method three new con- tion from the ideal district under gressional congressional ap- districts into a Court’s is ± 0.05%. average The vari- portionment scheme, alone, standing does ance in population is ± people. The retrogression cause a in minority population and deviation from the ideal strength.29 population for each district is set out for convenience. II. The Court-Ordered Plan POPULATION EQUALITY ACROSS DIS- noted, acknowledges As this Court IN TRICTS COURT-ORDERED PLAN it has two coterminous constitutional duties = 526,977 Population Ideal District requirements

or must be fulfilled Population order Deviation properly for the Court to implement a congressional apportionment plan. The 527,016 +.01 Court implement must devise 526,772 -.04 recognizes adjustment thought 29. The Court is not to be the method tricts for congressional adjustment. Perhaps they for three districts new are not the best attempt “proportional Undoubtedly of an smacks to achieve means. have weaknesses. representation.” They are, however, no separate Court two mechanisms way attempts provide proportional represen- that, comparing systems because of election purpose tation statewide. sole for a for- size, apples differences are much like potential mula that considers mathematical oranges. They provide a reasonable ra- rational, provide reasonable, equi- some determining whether tional method for comparing plans table basis for two that inher- the nonretro- Court’s remedial decree satisfies ently comparison. elude mechanical gression principle of Beer. to ad- mechanisms utilized the Court just for an increase of three dis-

population norm -0.12%. The difference largest and population between the 1,472 people. top smallest districts is The to bottom deviation is ± 0.28%. + .02 526,853 526,991 Even the de minimis deviations from ab- -0- -.04 526,792 population equality explained. solute can be + .08 527.393 attempts nearly practicable, plan As + .02 527,083 comply goals with the of Texas’ State + .10 527,528 preserving certain traditional and historical -.10 526,443 -.01 Additionally, boundaries. there has been 526,943 -.02 526,871 provide contigu- attempt compact + .02 527,074 Finally, recognizes ous the Court districts. -.03 526,840 precise there is no numerical definition of -.01 526,920 popula- from the de minimis deviation ideal + .04 527,203 However, the remedial di- tion. Court’s + .08 527,401 rective comes as close to mathematical ex- -.03 526,831 + .08 possible. bemay practically actness as 18 527.393 ' + .16 19 527,805 -.12 20 526,333 B. Racial Fairness 21 + .01 527,044 22 -.07 526,602 fashioning remedial -.08 526,976 plan, appropriate this Court follows the -.06 526,677 Voting Rights standards of section 5 of the -.03 526,801 Act, requires proposal that has + .06 527,285 racially discriminatory purpose neither a -.01 526,941 purpose nor effect. The of the Court’s While one has district a 0%deviation objectives— express is articulated in its two district, population from that the ideal providing equality voter and racial fairness. only very the other districts have minor 5 is met. Consequently, prong one section congressional deviations. The district with Regarding prong the effect of section largest population total retrogression must not lead to a 527,805 population people It has a or position respect of racial with minorities people Therefore, more than ideal. it devi- to their effective exercise of the electoral population ates from the norm + 0.16%. Accordingly, analysis begins franchise. scale, On the Congressional other end of the position with an of racial District 20 evaluation population has the smallest total 526,333 (cid:127) people. people with This is apportionment plan less minorities under the result, than ideal. As deviates from the replace.30 1 was to percentage 30. The and the minority population percentage voting age of minorities pop- ulation for the districts as they were defined are as follows: previously Congressional This

(1) Pre-Existing analysis addresses a statewide view reasonably of districts in which minorities Apportionment Plan having could be characterized as substantial previous system, election twen- political process. access to the This access districts, provided ty-four congressional mi- product group’s is a sheer numbers in norities districts in which with three relation districts’ individual total elect a member of “probably” could a mi- population voting age population. nority group represent the district. This proceed Court’s must to an evalua- analysis high minority profile is a result of minority voting strength particu- tion of Those were districts. districts Districts necessary lar areas of the State. This is 18, a minority 20. District 15 had minority noteworthy popula- because of the population percent. of 77.8 District 18 was tion that generally is concentrated three percent 74.0 minority, and District 20 had a areas of State. As a result of this minority population percent.31 of 77.6 concentration, retrogression a access fairly simple result from minor move- plan District the previous 16 under also ments of district boundaries. should be It reasonably mentioned. could district, not have The County been classified as a “safe” Dallas area one of the containing significant three areas a since it minori- minority population had a total ty heavily population. population This However, only percent. 60.5 provide did very geograph- concentrated near the exact minority popula- substantial access to the county. ic center of the tion high its minority profile. because of The same is true District which had a previously existing Under congres- total minority population 57.8 percent. scheme, districting sional County Dallas previous plan, Under the District 14 was among had a divided four districts—Districts 6,5, minority profile percent. popula- and 25. District 3 drew its per- 45.4 tion from the northwest centage corner Dallas significant reveals minorities had a County, the southeast corner of Denton potential influencing for an election.32 County, part southern of Collin voting age population The of Districts County. Congressional District 3 had a 18, and 20 echoes the fact were proba- very small total minority population. Its bly safe minority districts. Of the voting total minority percentage only was per- 8.7 age population percent District 72.23 addition, cent. In minorities constituted was minority. The minority breakdown of only percent 7.88 of the voting age district’s the voting age population in Districts 18 population. Consequently, minorities had and 20 percent percent, 67.93 and 72.27 impact little electoral in District 3. respectively. along District which ran the south side Regarding previous District mi- of County Dallas then southeast norities comprised percent 55.20 of the dis- Texas, through had a total minority central voting trict’s age overall population. 52.15 population 21.5 percent. Minorities con- percent voting age population percent stituted 18.08 of the district’s vot- 23 was minority. In District alone, ing population. Standing fig- these minorities constituted percent 40.39 ures minority impact. demonstrate limited voting age population. addition, In it is critical to note that matter, purely evaluation, however, 31. As a factual these three safe must make rea- Court representatives. minority districts did elect regarding sonable determinations influence. represented Districts by and 20 were Accordingly, appor- it examines the statewide Congressmen Garza, Leland, lade and Gon- previously tionment points existed and zales, respectively. significant to those districts had minority populations starting numerical point as a By expressly setting minority per- out evaluating whether Court’s centages districts, specific in these minority Court is retrogression causes a access to the way attempting in no that a state fixed political process. percentage provides numerical access. In its election, general cast. In the 1980 im- were actually of District proportion small of District 24 carried representative limited total County. The pacted on Dallas by opponent only spread against 6 was a black of District white vote minority population received, however, boundaries, which votes. He district’s about throughout 10,000 As far northern votes cast. County percent at its of the black ran from Parker 34,518 southerly result, opponent at its most his point to Brazos he defeated 152,862 point. total votes cast.34 out minori- significant Districts 5 and 24 had congressional representative white serving as a The line ty populations. opponent his closest District 5 defeated was the districts boundary for these two votes. general election the 1978 River, through the cen- which runs Trinity 3,044 election, he won general the 1980 in Dallas. minority community ter of the lost the white Congressman votes. system, pre-existing electoral Under significant mar- elections vote in both pop- Congressional District 5 had percent over 90 he carried gin. consti- Minorities percent. ulation of 29.1 His vote in those elections. of the black district’s percent tuted 26.18 capture high percentage such a ability to 24, minorities age population. In District actually consti- group vote from a popula- total comprised percent 37.4 in his minority of voters resulted tuted the voting age percent of the tion and 32.68 in the two elections.35 success population. summary, particularized a evaluation In themselves percentages manifested These under the County Dallas as it existed of political influence in in rather substantial a concentrated minor- previous plan reveals group Minority both District 5 and 24.33 political to the significant with access ity process political had to the members access congressional districts. process in two ability “swing” as a result their containing a A second area of the State one election to outcome of is the minority population concentrated general In the 1978 candidate or another. Houston area. Under the County Harris or election, congressional represent- the white congressional apportionment pre-existing lost the overall actually ative of District 24 among five County was divided plan, Harris opponent by approximate- white vote to his 7, 8, 9, 18, congressional districts —Districts 5,000 precincts, black ly votes. He carried and 22. 11,000 however, votes or by approximately corner of segment A of the northeast cast black voters. percent of those popula- 5,887 provided part of the result, Harris As he won an election 72,500 District 9. The re- Congressional for votes tion approximately votes in which PRE-EXISTING DATA FOR analysis on con- ELECTION 33. For influence 35. gressional pre-existing Districts 5 DISTRICT elections in CONGRESSIONAL Hearings Apportionment of Tex- on see and 24 1978 General Election Congressional Before the Commit- Districts Senate, Legislature of tee of the Whole 67th 35,524 Jim Mattox Texas, 1981) (testi- (July 1st Called Session 34,672 Tom Pauken mony Larry Carlyle). of Professor James Michael White 34. PRE-EXISTING DATA FOR ELECTION Election 1980 General CONGRESSIONAL DISTRICT 70,892 Jim Mattox Election 1978 General 67,848 Tom Pauken J. B. Jackson 39,201 Frost Martin 33,314 Berman Leo Election

1980 General 93,690 Frost

Martin 59,172 (Black) Clay Smothers population specific mainder of the district’s The third and final area of was lo- con- Chambers, Galveston, population cated in centrated minority Jeffer- exists in area, son Counties. Minorities in District 9 South Texas. This which borders com- prised percent of the total Gulf of and the Country 29.6 Mexico population Mexico, voting percent age significant Hispanic 26.77 popula- popula- has a tion. percentages pre-existing congressional tion. These indicate the minor- Under the ity population degree plan, basically had a influence in there were six apportioned District 9. districts Texas South 15, 16, 20, area—Districts and 23. Congressional picked up part District 16, 20, Districts and 23 have al- population its from the tip southern ready been discussed. Districts 15 and Harris County. The remainder of dis- minority populations greater total population spread trict’s throughout all than percent, reasonably could be labeled Counties, of Brazoria and Bend Fort safe minority districts. While not safe dis- part County. of Waller District 22 had a tricts, 14, 16, Districts with total total minority population percent. 31.2 minority populations greater than 45.4 addition, In minorities constituted 27.99 percent, provided potential- minorities with percent age popula- district’s ly substantial influence. tion. Considering percentages, raw it is reasonable to possessed conclude minorities The remaining district —District 21—had influence in District minority population comprised 28.5 percent addition, population. its total District and 18 were totally con- up percent minorities made 24.04 tained within the boundaries of Harris population. district’s voting age per- These County. noted, as already pos- dominant, centages, while not indicate mi- high sessed such very percentage of mi- nority group potential members had the reasonably norities that it could be labeled being political able to exercise an effective a “safe” minority district. While not a safe voice. district, District due to its high minority profile, provided minority group members In summary, minority group members with potentially significant impact. Minor- had the potential for influence in the elec- ities up made percent 40.1 of the popu- total process toral the previous apportion- under lation and percent 36.07 of the voting age plan. ment minority Three districts had population. hand, District the other greater percentages percent. than 70 Two provided minorities with little impact. greater others percentages had per- than 50 Only percent 14.0 of the total population particularized cent. In areas of minority minorities, was comprised of and minorities concentrations, pre-existing plan pro- constituted a percent mere 12.86 of the which, vided several districts in upon based voting age population. percentages, enjoyed minorities oppor- tunity for influence. electoral

An of the examination Harris County that, area reveals under the pre-existing II. The Court’s Plan congressional apportionment plan, minori- ties had high level apportionment plan influence. The devised and im- district, One plemented could be character- provides this Court racial ized as minority a safe words, district. Three oth- fairness. it other does not lead to 9,22, ers—Districts provided retrogression position minori- of racial mi- 8— ty group members with moderate to signifi- norities with to their respect effective exer- cant political influence. cise of the electoral franchise.36 plan’s 36. The fairness in racial terms of retro- gression greater discussed detail. Minori- ty population comparisons pre-existing of the plan and the Court’s as follows: Minorities outset, minori- also maintain the three dis- the same three safe

At These districts ty districts are maintained. tricts had substantial access 2Q. are Districts Under the percentages as a result of their of the total plan, per- Court’s minorities constitute 72.21 population. minority composition population. They of District 15’s cent total actually percent- District 16 increased on a age percent constitute 66.61 age plan, basis. Under the Court’s minori- population. plan, minor- Under the Court’s up percent ties now make 63.9 total comprise percent ities in District 18 72.0 of population. They enjoyed also an increase population per- the district’s total and 66.17 percentages voting age in their popula- voting age population. Finally, cent of the They comprise percent tion. now 58.76 per- District minorities constitute 70.5 voting age population. the total In District cent of the population per- total and 64.8 23, the difference between the court-or- voting age population. cent of the pre-existing plan dered and the is min- recognizes The Court in each of iscule. In District there is a decline in these three districts there some decline in minority population in terms of both minority population. the total In no in- population voting age population. total stance, however, population does the fall decline, however, percentage is to a 15,18, 70.0 percent. below Districts and 20 impact that still allows proc- the electoral experience percent- each a decline in the ess. however, ages. again, Once the decline is maintaining In addition to three safe dis- percentage to a is so substantial tricts cannot said and the two districts with reasonably be to have resulted retrogression. population in a percentages greater per- than 50

cent, gain preserved, resulting lines are not an additional district dis- minorities minority percentage per- configurations above trict are in accordance with a Indeed, District is one of configurations cent. traditional and historical County districts Texas is entitled to in the Dallas three new districts receive, total minority population has a area.37 percent. 64.25 Minorities constitute 58.23 enjoyed very Minorities limited electoral percent voting age population. Due of the pre-exist- in District 3 under the influence minority profile, to its high District 27 ad- this, apportionment plan. Because of ing

justs minority popula- for rise in Texas’ plan be a cannot said the Court’s leads to tion relative to rise in the total State’s retrogression minority voting strength, population. Hispanic population in Texas although minority population is de- 18 percent popu- increased from of the total percentage points 1.29 creased under the lation percent to 21 between 1970 plan, percent per- 7.4 Court’s from 8.7 guarantee While required proportion- not minority District 6 a lower cent. also has minorities, representation adjust- al for an population previously. than it did Once minority ment for increase in popula- however, again, the small decline in minori- tion made in imple- should be order to avoid ty population previ- a district occurs in menting plan retrogres- occasions a provided ously most limited access. It can- minority’s sion in the effect of the vote. retrogression. labeled District 27 serves that While function. In the two dominant Dallas County dis- district short being fall safe dis- tricts—Districts 5 and 24—the Court’s plan trict, it provide potentially signifi- does voting retrogression avoids cant voice minority group for members. strength. plan utilizes the historical point, analysis At this the Court’s is di- and natural boundary Trinity River— —the whether, determining rected at because of to divide the two districts. The is result lines, some boundary shift in there is a comprise percent that minorities 31.87 retrogression in minority voting strengths. District 5’s total population per- and 28.12 appropriate Accordingly, it to address the population. of its age cent In Dis- particular areas State have con- up trict minorities percent make 45.7 minority populations. centrated population percent the total County is impacted by voting age instances, Dallas population.38 same In both four that previously districts divided slight it. there is a in minority popula- increase Additionally, the court-ordered adheres tion these two districts serve as the to county degree to the practicable lines being foundation for capable minorities an satisfy effort express goal effectively exercising the elective franchise State Legislature. To county the extent County.39 in Dallas groups 37. The Dallas popula- that is utilized of District 24’s total 0.31% Mauzy-McKnight the Court is S.B. 3 or the tion. proposal. See Defendant’s Exhibit C. 2. plan originated as a committee amendment noted, attempts give 39. As this Court defer- Mauzy during State Senator the First Called Legisla- to the ence choice of the Texas State Legislature. Session of the Texas S.B. 3 was ture, expressed degree in S.B. denied enactment a vote of 15--14. It was possible. applied by The standard this is Court replaced by proposal ultimately passed a paid except Legisla- deference is where the through the state senate a 15-14 vote. ture’s choice would interfere this Court’s achieving either of its two coterminous consti- percentages age voting popula- These of the objectives. Consequently, tutional determines that it this Court voting age population tion do not include incorporate is unable groups for block 2 and 3 of tract 1 in census provisions of affect the S.B. Dallas Coun- County. population Dallas The total for these ty area. groups pop- block is of District 5’s total 0.28% Additionally, they apportionment ulation. l’s do not consider the scheme for Dallas voting age population groups County severely minority for block affected two dis- 7, 8, swing- and 9 of census tract Tarrant tricts which minorities had crucial County. population total The these block influence. In vote District minorities would area, percent, as 31.2 County opposed percent pop- In the Harris Court’s plan retrogression does in mi- plan. not cause a ulation previous under the The drop voting As nority strength. previously not- age in voting population was from 27.99 ed, plan District 18 as preserves Court’s percent percent. to 20.93 addition, a safe minority district. Dis- decline, together with the decline in plan trict 7 under Court’s maintains its a retrogres- does not amount to basic contained a characteristics. It small County minority sion in voting Harris percentage originally, of minorities and con- strength, is however. This because of the minority percentage tinues to do so with a gain in a district in completely new percent. impact of 10.3 District 9 potentially minorities will have substantial was to any part County remove Harris new impact. electoral district is Dis- congressional district’s boundaries. minority popula- trict which contains a nevertheless, Minorities, maintained virtual- tion of percent. up 38.7 Minorities make ly impact previously the same enjoyed percent 34.19 voting age the district’s District 9. population. 8 and Districts 22 have different charac- considering Accordingly, the districts to- plan. teristics under the This is Court’s a gether, retrogression there is no in minori- County’s growth result Harris and the voting strength. Generally, ties’ minorities necessity of creating a new County in the Harris area have one safe district in the area. District 8 reflects a Additionally, district —District 18. there decline in minority population. The de- are three districts—District and 25—in crease, however, so is not dramatic that it potential which minorities have for influ- rules potential minority out influence. Mi- encing the outcome of elections. comprise norities 29.2 percent continue to population per- district’s total and 25.8 examining Another means of the Harris cent population. age These County area is to Districts 9 and exclude percentages indicate minorities will contin- from the evaluation. This is done for a ue to have ability impact elections practical reason. The reason is District 9 is significantly. entirely now outside the boundaries Har- arguably signifi- County population

District 22 realized an ris 22’s and District is cant decrease minority population. comprised very It now small percentage now minority population people has a total living County. of 23.2 of in Harris Focus on comprised minority pop- County. have a mere of the total district in Dallas After con- 12.1% voting age factors, popula- political ulation and of sideration of numerous 10.11% comprised battling, Legis- tion. Minorities would have substantial the Texas 63.8% population configurations of the total of District 24. How- lature decided on the in S.B. ever, they would have constituted and created the “non-safe” District 24. The 57.96% voting age population. liberty Significantly, engage was at in such Court, appear fashioning District 24 under S.B. 1 would not considerations. This nonretrogressive best, minority plan apportionment create a safe district. At does not provide greater ability privilege. would with a minorities have that It must evaluate the new swing plan questions regarding an election to one candidate or anoth- without access to course, already possessed minority ability separate groups er. Of minorities to form coa- swing-vote substantial influence in District 24. or litions other concerns. Its concern creating While not a safe seat whether the new reduces the voice of destroy District swing-vote S.B. 1 would the effective minorities. It is not before Court deter- previously legis- influence minorities en- mine whether considerations valid in the

joyed justify simply increasing swing- in District 5. it is Since the Court’s lative context being expense evaluated under strict standards vote influence in one district fairness, previously enjoyed neighbor- of racial scheme the ing in a influence resembling determines, however, S.B. 1 would result in a severe re- district. This Court trogression that, appor- in the Dallas area. Accord- in the context of a court-ordered ingly, plan, this Court determines that deference in tionment would result in such a trade-off inappropriate. retrogression position this instance would be of racial minori- recognizes minority respect This Court that certain ties with effective to their exercise group expressed members a desire a for “safe" the electoral franchise. matter, that, practical major districts a The factor in the four South Texas was the 8,7, County are districts—Districts Harris congressional creation a new district. minority district, and 25—reveal substantial in- compensate District to This population per- fluence. Minorities have large population growth for the in South percent centages ranging from 29.2 to 72.0 Hispanics. particularly among This Texas— percent three out the four in districts. provides It district serves two functions. plan Consequently, the Court’s cannot compensate help an additional district to for said minority strength to dilute in growth overall population in State. It County.40 Harris also, adjusts its minority profile, due to for the effect the rise in Finally, minority population. court-ordered As dis- plan cussed, South Texas area must be ex- district —with minority popu- a outset, At the amined. it should be recog- percent provides lation of 64.3 minorities — area, nized that Texas due South to its proc- substantial access to the population growth, apportioned has been an Consequently, the ess.41 Court’s District additional district. There are now seven together remaining with the districts in bordering districts the Gulf of Texas, retrogression South do not cause a in Mexico and the Country Mexico. minority voting strength. noted, As minority two safe districts preserved. previously existed III. Conclusion addition, Districts and 23 maintain Court, This in a fashioning remedial de- significant minority populations. The total cree, sought objec- has two constitutional minority populations range from a low of First, tives. attempted provide has to a percent 31.6 to high District 14 a of 63.9 plan guarantees voter equality. districts, percent in District 16. In all three Second, the Court has racial sought fair- greater minorities constitute than per- recognition ness. In appor- of the fact that cent population. of the voting age It a tionment is task the first

should be noted that District 21 had a slight instance, this Court has deferred to the drop in minority population. However, this wisdom of the Legislature every State cannot be said to have caused a retrogres- instance acceptable it found under the stan- minority sion in voting strength for two applicable dards plan. to a court-ordered First, reasons. the decline was small. Second, minorities had limited judicial access in Dis- exercise of this unwelcome trict previous plan. 21 under the is taken responsibility purpose for the sole required Court is configurations This This 40. maximize mi- Court determines that its nority potential, even if necessary it could be adjust done. In- Hispan- are ic for increases deed, engage it is directed not to and, race-con- population thereby, retrogres- a avoid line-drawing. scious The Court has been minority voting strength. sion in asked, however, apportion County Harris determination, however, should not be manner would increase District mi- 25’s perceived aas failure to defer to the State’s nority profile to district’s total 60.2% problem choice. The addressed Court— population. objective, In order to facilitate this adjusting Hispanic population for increases in minority population of District 18 would retrogression substantially to avoid —is substantially. minority have to be reduced problem prompted Attorney same Gen- population drop would under the 72.0% interpose objec- eral of the United States to plan drop Court’s Such would 64.9%. result, Texas, tion to S.B. 1. As a the State of jeopardize proven safe district in counsel, through its has indicated that its alter- arguably only Harris ability increase the position nate is “to ask draw an Court swing of minorities to an election one plan incorporating entirety interim 1 in its Consequently, direction or another. the Court exception choice, Legislature’s with the chooses defer to corrective factor particularly being retrogres- since it does not cause a Districts those the districts minority voting power. objected sion in that were to and that have been incor- porated prepared in the submission have we under the court-ordered has Hearing, February and offered to the Court.” higher minority population than did S.B. l’s 9, 1982,at 12. Conversely, District 27. District 15 under the minority population. Court’s has a smaller 79.05, 80, 81, 82, 95, 96.03, 96.04, 94, 96.05, insuring facilitating, degree and to the 96.06, 96.07, 96.08, 96.09, 97.01, 97.02, 99, practicable, orderly elective timely and 128, 129, 130.02, 130.03, 130.04, 131.01, 131.- process provided by for the laws of this 02, 132,133, 131.03, 134.01,134.02,135,136.- plan temporary is a State. Court’s 01, 136.04, 136.05, 136.06, 136.07, 136.08, however, effect, plan. interim It is to be 136.09, 136.10, 137.01, 137.04, 137.02, 137.05, elections, primary general for the 1982 and 137.07, 137.06, 137.08, 138.01, 138.02, 139, intervening any and for other or further 140.01, 181.07, 181.08, 181.09, 181.10, 181.11, congressional as hereafter oc- elections 181.12, 181.13, 181.14, 185.02, 190.03, 190.04, Legislature cur until such timе as the Texas 190.07, 190.06, 190.08, 190.09, 190.10, 190.11, plan apportion- enacts a of its own for the 190.12, 191, 192.01, 192.03, 192.02, 192.04, congressional ment of Texas’ districts and 192.06, 192.07, 192.05, 193.01, 193.02, 194, plan legally such is found enforceable 195.02, 196, 197, 198, 195.01, and and block by emphasized this Court. It is to be groups 1 and 4 of tract 1. census prejudice legis- order is without to the District 4 lative and executive branches of the State to proceed Texas with the consideration Congressional Same as District 4 as adoption constitutionally permissi- of a defined 1. S.B. ble of congressional districting at a District 5 regular called or session of the composed District 5 is part any congressional the State of Texas for County Dallas included in census tracts elections primary other than the 1982 or 2.02, 3, 4.01, 4.03, 4.02, 5, 6.01, 6.03, 6.04, general expressly elections. This re- Court 7.01, 7.02, 8, 9, 10, 11.01, 11.02, 12, 13.01, jurisdiction tains proceeding, over this in- 13.02,14,15.01,15.02,16,17.01,17.02,18,19, cluding, to, applications but not limited 21, 24, 22.01, 22.02, 23, 26, 27.01, 27.02, modification, enforcement, implementation, 28, 29, 30, 31.01, 31.02, 32.01, 32.02, 33, 34, relating or apportion- other relief 35, 36, 37, 38, 39.01, 39.02, 40, 71.02, 72, 83, ment of Texas’ districts. 90.01, 90.02, 91.01, 91.02, 92.01, 92.02, 93.01, 93.03, 93.04, 98.02, 98.01, 100, 114.02, The Court’s is attached hereto as an 115, 116.01, 116.02, 117, 118, 119, 120, 121, appendix.

122.02, 122.03, 122.04, 122.05, 123, 124, 125, APPENDIX 148.02, 150, 167.02, 148.01, 169.01, 169.02, 169.03, 169.04, 170, 171, 172, District 1 173.02, 174, 175, 176.01, 173.01, 176.02, 177, Congressional Same as District 178.01, 178.03, 178.04, 178.05, 179, 180, 181.- defined Senate Bill No. which was 04, 181.05,181.06,181.15,182.01,182.02, 183, enacted the First Called Session 184.02, 184.01, 184.03, 185.01, 186, 187, 188.- Legislature 67th August of Texas on 01, 188.02, 189, 190.13, 190.14, 190.15, signed by the Governor of Texas groups block 2 and 3 of census tract 1. August (hereinafter referred to District 1). as S.B. Congressional Same as District 6 as District 2 1. defined in S.B. Congressional Same as District 2 as District 7 defined S.B. 1. Congressional District 7 as Same as District 8 defined in 1. S.B. composed part 3 is of that District 8 Collin included in census tracts 313.- Congressional Same as District 8 as 02, 317, 318.01, 320.01; part and that 1. defined S.B. Dallas County included in census tracts District 9 2.01, 71.01, 73.01, 73.02, 74, 75.01, 75.02, 76.- 01, 76.02, 76.04, 77, 78.01, 78.05, 76.03, 78.04, Congressional District 9 as Same as 78.06, 78.07, 78.08, 78.09, 79.04, 79.02, 79.03, defined in

District 23 10 District Congressional as District 23 as Same District 10 as Congressional as Same by defined S.B. 1. 1. defined in S.B. District 24 District 11 composed part District 24 is of that 11 Congressional as District as Same 20, County included in census tracts Dallas defined in 1. S.B. 41, 42,43, 44, 45, 48, 49, 50,51, 52,53, 46,47, 12 District 55, 56, 57, 59.01, 59.02, 60.01, 60.02, 61, 63.02, 64, 67, 68, 69, 86.01, 12 as District Congressional as 63.1)1, Same 86.02, 87.03, 87.05, 88.01, 87.01, 87.04, 88.02, 1. defined S.B. 89, 101, 102, 103, 104, 105, 106, 107, 108.01, District 13 108.02, 108.03, 109, 110.01, 110.02, 111.01, as District Congressional as Same 111.02, 112, 113, 114.01, 140.02, 141.01, 141.- 1. defined in S.B. 02, 141.03, 14Í.04, 142, 143.01, 143.02, 143.03, District 14 143.04.144.01, 144.02,145,146,147,149,151, 14 as District Congressional as Same 152.01, 152.02, 153.02, 154, 155, 153.01, 1. in S.B. defined 157, 158, 159, 160, 161, 162, 163, 164, 165.01, District 15 199; 165.02, 165.06, 166.01, 167.01, and and part County that of Tarrant included in Atascosa, composed District 15 is 1217.02, 1218,1219.01, 1219.02, census tracts Brooks, Duval, Frio, Hidalgo, Hogg, Jim 1220, 1221, 1222, 1223, 1224, and and Wells, Karnes, LaSalle, Oak, Jim Live 4, 5, 6, 7, 8, groups block and 9 of census McMullen, Patricio, Starr, Wilson, San tract 1130. counties; Zapata part of Gonzales District 25 County included in enumeration districts 231B; 230, and part and that of Nueces Congressional Same as District 25 as County included in census tract 37. defined S.B. 1. District 16 District Congressional Same as District 16 as composed District 26 is of Denton Coun-

defined in S.B. 1. ty; part County of Collin included in 303, 304, 305, 306, 307, 314, census tracts District 17 315, 316.01, 316.02, 316.03, 316.04, 316.05, Congressional Same as District as 316.06, 316.07, 318.02, 318.03, 319, 320.02, defined in S.B. 1. 4, 5, groups and block and 6 of census tract District 18 308; part County of Cooke includ- Congressional Same as District 18 as 325, 328, 336, ed in enumeration districts defined in 1. S.B. 337, 338A, 339T, 339U, 340T, 338B, 340U; part and that of Tarrant

District 19 1013.01, 1023.02, included in census tracts Same Congressional as District 19 as 1042.01, 1042.02, 1054.01, 1054.03, 1054.04, defined 1. 1055.03, 1055.01, 1055.02, 1055.04, 1056, District 20 1057.01, 1057.02, 1065.02, 1065.03, 1065.04, Same as Congressional 1065.05, 1108.03, 1109.01, 1109.02, District 20 as 1110.01, defined by S.B. 1. 1110.03, 1110.04, 1112.01, 1113.01, 1113.02, 1115.05, 1115.07, 1115.03, 1115.04, 1115.06, District 21 1115.08, 1115.09, 1115.10, 1131, 1135.03, Same as Congressional District as 1135.04, 1135.05, 1135.06, 1136.03, 1136.04, defined S.B. 1. 1136.05, 1137.01, 1137.02, 1216.01, 1216.04, District 22 1216.05.1216.06.1216.07.1217.01, 1225,1226, 1, 2, Same Congressional 22 as groups District and block and 3 defined S.B. 1. of census tract 1130. 1702, 1709, 93 S.Ct. 36 L.Ed.2d (1973). congressional reap- In the case of District Texas, portionment this re- State Cameron, Ken- composed 27 is District As a impermissible. sult constitutional Counties; and Willacy Kleberg,

edy, matter, figures, under the 1980 census Tex- County not included of Nueces part Congressional as is to 27 seats. entitled existing apportionment provides According- JUSTICE, Judge, concurring only Congressional seats. Chief Congressional part. ly, existing apportion- the dissenting part plan ment for Texas must be modified be- forth, For I reasons which shall set the fore 1982 elections. implement decision of the court to a court- congressional ordered apportionment plan, reapportionment It is a is axiomatic in the wake of the failure of the Texas properly delegated legislative matter to adopt plan, requires a suitable However, experience bodies. recent teach- plan adopted ultimately be free of frequently per- es that these entities fail to any taint of or arbitrariness discrimination. form their in a manner that satisfies duties Alternatively, even if a court-ordered plan requirements of the Constitution and legisla- which mirrors the boundaries a instances, Voting Rights Act. In such tive is to be evaluated under the more obligation’ “it becomes ‘unwelcome relaxed applicable standards impose the federal court to devise and a plans, the court must conduct intensely an reapportionment plan pending legisla- later local appraisal design impact of the Lipscomb, tive action.” Wise v. 437 U.S. apportionment plan as 535, 540, 411 98 57 L.Ed.2d S.Ct. passed legislature. by the On the basis of Finch, (1978), quoting Connor v. 431 U.S. review, either mode of analytical I believe 407, 415, 1828, 1834, 97 52 L.Ed.2d S.Ct. 465 the conclusion is inescapable portion that a (1977). equitable jurisdic- This doctrine of of the plan implemented by the court of- developed litiga- tion was in the context of fends the Fourteenth and Fifteenth legislative plan tion in which the had been Amendments of the United Constitu- States struck down a federal court on constitu- tion. Accordingly, por- I dissent from those grounds. tional the court in Wise tions, and separately concur in the remain- impact went on to the “distinctive note plan. der of the court’s Voting Rights upon § [of Act]

power reapportion of States to themselves.” I. 541-42, 98 S.Ct. at 2497-98. U.S. detailing procedural requirements After Obligation Unwelcome Court’s Act, Voting Rights of the and the inherent 29,1982, January Attorney On Gener- potential delay, noted: Court al of interposed objec- the United States clearance, Pending if such submission and tion, pursuant Voting to Section 5 of the processes a State’s electoral are not to be amended, Rights Act of 42 U.S.C. frustrated, completely federal courts will 1973c, (1981), Bill No. 1 § Senate necessarily times further be drawn congressional reapportionment plan passed reapportionment process into the and re- Legislature. the Texas As State quired implement devise and their own Attorney objection General stated in his plans. letter, “the objection effect of this is to at 2498. 437 U.S. at 98 S.Ct. implementation render the provisions of the Thus, legally Senate Bill No. 1 today unenforceable.” the court assumes the “un- congres- In the reapportionment plan obligation” adopting absence welcome pre-cleared pursuant which has been to fill the void to Sec- sional Voting legisla- tion Rights “essentially Act left the dereliction of the state assuming duty, par- freezes the the court election laws of the covered ture. state;” States, Georgia ticipates v. United of the fundamental acts in one self-governance. precisely It is Roman v. democratic Sincock commanded that courts reapportionment the crucial nature of the “any act in a manner free from taint of process typically legisla- which renders it arbitrariness or discrimination.” Id. This legislature’s presumed tive task. The sensi- language appear solely would to be focused tivity to social cross-cur- on the apportionment plan effects of an rents of the state cloaks with “political adopted by the court. The effects test authoritativeness” that other institutions product indisputable premise be the Finch, may lack. Connor v. atU.S. always presumed that federal courts are Lacking at 1834. S.Ct. the innate credi- assump- act without invidious intent. bility legislature, federal courts must tion then serves to shift the focus of the “circumspectly, act ain manner ‘free away from inquiry the secret corridors of any taint of arbitrariness or discrimi- intent to the more аccessible realm of ef- ” Id., Sincock, nation.’ quoting Roman v. Hence, special fect. courts must take care 695, 710, 377 U.S. not, plans they choose do unwit- (1964). words, L.Ed.2d 620 In other “[a] tingly, have the impermissible effect of di- stringent more applied judi- standard is luting minority voting strength. apportionments” cial than applied by fed- relationship The between intent and ef- eral courts reviewing when the extremely problematic, fect is as this dis- validity legislatively of apportion- drafted Indeed, sent will seek to demonstrate. ment schemes. Lipscomb, Wise v. 437 U.S. analysis holdings careful of the various 541, at 98 S.Ct. at 2497. Supreme the Court indicates that an ex- signification The stringent of this criteri inquiry provides haustive into effect crucial clear, on is not for several reasons. Initial revealing circumstantial evidence of in- ly, the analytical framework applied to be infra, pp. 976-979. tent. See legislative to apportionments is imprecise, action, In this the court has chosen to since the litiga tidewaters of constitutional implement plan a substantially tracks tion of voting rights challenges have left a the adopted one the by legislature. Texas confusing and uncertain legacy. The Su portions Two plan the have been altered. preme Court’s decision in City Bolden v. objected Districts 15 and 27 were by to Mobile, 55, 446 U.S. 100 64 S.Ct. Attorney Hispanic General as dilutive of (1980), L.Ed.2d 47 held that the intent re voting strength in South Texas. Those two quirement applies to constitutional chal redrawn, districts have been in a manner lenges in voting. However, the area of that remedies the defects S.B. 1 with lack of majority Bolden, a opinion in respect to Additionally, those two districts. also conflicting discussions of the evi County, districts 5 and both in Dallas dentiary requirements concerning the in have been altered. These districts survived standard, tent diminish clarity of that the scrutiny Attorney General. Moreover, holding. heightened nature However, on the analysis basis of under the of the scrutiny judicial directed to plans has applicable standards to appor- court-ordered clarified, never been in terms of its effect plans, majority tionment of this court has on proper framework for analysis. found that districts 5 and as drawn Even if the standard of review mandated 1, impermissibly ability S.B. dilute the clear, Bolden were effect par- residents of Dallas wholly uncertain, standard is as it relates to ticipate in process. wholly the electoral I the increased sensitivity demanded of judgment. concur in that courts in Wise Lipscomb. v. analysis Close language quoted Attorney objec- General’s letter from Roman v. Sin cock, supra, notwithstanding, U.S. at tion has the S.Ct. court seemingly indicates duty that one effect of to conduct its own review of S.B. closer examination is elimination of transgress the in insure that its terms do not tent requirement applied legislative ac standards of the Fourteenth constitutional tions by noted, Bolden. As majority Court -and Amendments. The Fifteenth voting rights of review of standard has decided to defer to the state challenges analysis the dis- a close devising plan, incorporating its includes given apportionment. trict boundaries as drawn S.B. all effects The Su- 15, 27, preme evidentiary delineation of dispute except areas in Districts Court’s inquiry sources for the indirect into intent and 24. impact of the official action” includes “[t]he puzzling. The source of this deference is important starting point.” Arling- as “an Lipscomb, plainly It is held in Wise v. su Heights Metropolitan Housing Corpo- ton pra, stringent standard is more “[a] ration, 555, 563, 429 U.S. S.Ct. applied judicial apportionments.” 437 Therefore, (1977). whether L.Ed.2d 450 541,. plan at 2497. The plans are to be reviewed un- court-ordered is, imposed by ques today the court without standard”, stringent as seems der a “more tion, judicial apportionment. The decision plainly Lipscomb, Wise v. su- required incorporate components large or, pra, alternatively, surveyed pre- under does does not contravene that fact. Nor vailing legisla- constitutional standards for Attorney limited nature of the Gener (to tive the court-order plans the extent objection al’s letter of vitiate the nature of boundaries), legislative plan incorporates equitable remedy. the court’s Bill Senate impact close appraisal objection nullity No. is a as a result of the obviously demanded. letter, and, fact, light of this the court presented sculpt Regardless analytical has been task of of which with the structure ing plan, pending its own at least later is to be used in the evaluation of the court- legal legislative re plan, judg- action. There is no ordered deference to that, quirement fashioning validity. a court-or ments limited To the has plan, adopted by legisla- dered must mirror the extent that the court legislature. choices of the constitutionally permissible, While the court ture is then the may draw in a man legislature may respected. boundaries districts work of the be similar, However, ner might be or even con factors evidentiary the recom- gruent, legislature, to by Arlington Heights those drawn the it mended mandate that may also depart substantially aspects choose to procedural the and substantive from the legislature. process scrupulously handiwork of the point is not that one or other method of attention to detail evaluated. acute court; apportioning upon judicial legisla- is incumbent inform the review of must rather, principle adopts large the clear the court court plans; tive for when the any own, must act in a wholly manner free from portions legislative plan its taint of arbitrariness or discrimination. on attitude of the basis of a deferential questionable validity, undeniably it must be Further, even if S.B. 1 is to be accorded acutely any to infirmities in the sensitive presumption some of validity respect legislative process, as well as in the final to the districts which survived the review of product. Department Justice, court has an responsibility ineluctable plain Supreme evaluate the thrust of Court deci- apportionment plan prevailing plans under consti- sions is should be that court-ordered tutional Certainly legislative standards. the action of stringently evaluated more than the Attorney entering General in plans. limited of this close examina- The contours objection legislative plan exacting does not tion im- analysis entail an abrogate pact stringent the force of the Constitution as plan, incorporating constraint on the legislature, proscriptions against fragmentation, actions of the dilu- tion, ability of federal packing, courts to enforce and other historic methods of its principles. pat- depriving A of their constitutional contrary result would minorities ently principles right participate process violate all established of demo- judicial self-government equal under Article III of the Con- cratic terms with review stitution. drawing persons. all other In the bounda- legal Rather,

ries of the districts in Harris sessmcnt of claims. the doc- Texas, County and West the court has de- past trines which have evolved in the two legislature. my judgment, ferred to the In decades have quality about them the legislative terrain, premise validity inap- this landmarks on a barren which propriate. since I may find that courts chart their course toward reso- legislative plan itself is im- constitutionally lution of the complicated questions that permissible, even under the lower standard arise in this area. applied legislative apportionments, to be noted, Supreme As the “[p]oli Court has I will not venture into the uncharted terri- political tics insepa considerations and tory determining appropriate stan- rable from districting apportionment.” Rather, dard of review. this dissent will 735, 753, Gaffney Cummings, U.S. apply to the court-ordered the frame- 2321, 2331, (1973). 37 L.Ed.2d 298 Ad analysis prescribed work for by the Su- ditionally, myriad legal because of the stan preme legislative plans.1 Court Even dards developed, legis which have been standard, exacting under this less lative processes reapportionment have implemented by the court is constitutionally increasingly sophisticated become and self- respect

deficient with Harris measure, conscious. In some this develop West Texas. ment is salutary; but to the extent purposes illicit ambig infect the often

II. legislative uous procedures, sophistica In Search of a Standard judicial tion works to inquiry render into process Yet, exceedingly difficult. The American ideal of participatory de- present while these actions ines mocracy, undergirds our capable enigmas, federal courts are still order, depends social on the irrefutable charged with the crucial responsibility of premise, embodied the United States scrutinizing operations, such to insure that Constitution, that right a citizen enjoys the they do not result in an unconstitutional to participate in elections equal on an basis abridgement vote, denial or right with other Blumstein, citizens. Dunn v. beyond since it is question that the Consti 330, 336, 995, 999, 92 S.Ct. 31 L.Ed.2d tution sophisticated “nullifies as well as (1972). the Supreme Court simple-minded modes of discrimination.” jurisdictional established the upon basis Wilson, Lane v. 307 U.S. 59 S.Ct. which federal courts may review claims 872, 876, (1939). 83 L.Ed. 1281 See also that this right fundamental has been uncon- Lightfoot, 339, 342, Gomillion v. 364 U.S. 81 stitutionally denied or abridged by proc- the 125, 127, (1960). S.Ct. 5 L.Ed.2d 110 ess of legislative reapportionment. Baker Carr, 186, v. 691, 369 U.S. 82 S.Ct. 7 contexts, L.Ed.2d variety of Supreme (1962). time, 663 Since that many federal Court has guidance furnished to lower courts have worked rough-hewing courts proceed on how to compli- with the contours vote, of right and at deter- inquiry cated into the motivation in- which mining legislative action, when appor- legislative forms reapportionment.. Essen- tioning representation or in otherwise tially, guidance af- this takes the form delin- fecting participation in the proc- electoral eation of a series of factors which courts ess, unconstitutionally right. offends that are to look at in process evaluating ‍​​​‌​‌‌‌​​​​‌‌​​‌​​​​​‌‌​‌‌‌​​​‌​‌‌‌​​​​‌‌​​‌​‌‌‍area, however, Constitutional theory in this disputable question purpose. No- lacks clear principles for the analytical as- where are these elements set forth in a plan implemented Accordingly, throughout the court with re- will dissent refer spect 1,” to Harris and West Texas is iden- Bill “Senate No. rather than the “court- 1, tical to Senate Bill plan.” Similarly, No. ordered reference will be reapportionment plan passed by legis- plaintiff-in- the state made to the claims of the various lature. challenge This dissent finds that unconstitu- tervenors tutionality raised their to the consti- respect regions, tional to those two under of S.B. 1. applicable plans. legislative standard

965 presence, voting rights caused purports manner which to be exhaustive. See, Village Arlington e.g., Heights v. cases, which, of a number of concerns Metropolitan Housing Development Corp., force, may their combined call for tradition- 252, 268, 555, 565, 429 97 50 U.S. S.Ct. scrutiny al close of the substantive and occasion, (1977). Supreme 450 On L.Ed.2d procedural respecting process details inquiries by Court reviews of district courts question. legislative purpose explicitly into are not First, exacting inquiry an is mandated by Instead, they tied to enumerated factors. cases, presence, in these of a fundamen appear implicit ratifications common protected tal interest Constitution. by the See, approaches by sense district courts. nearly century, Supreme For Court 755, e.g., Regester, White v. 412 765- U.S. recognized has political franchise “[t]he 770, 2332, 2339-2341, 93 S.Ct. 37 L.Ed.2d is ... a fundamental (1973). guid- 314 In the absence of clear right, preservative rights.” because of all review, required body ance for the 356, 370, Hopkins, Yick Wo v. 118 U.S. 6 Supreme challenges Court decisions on 1064, 1071, (1996). 30 L.Ed.2d 220 S.Ct. See apportionment must be searched for some Sanders, 1, 17, Wesberry also v. 376 84 U.S. organizing principle central 526, 534, (1964) (“no 11 S.Ct. L.Ed.2d 481 judicial scrutiny used in of claims raised right previous is more in a free country”); given in a action. Sims, 533, 561-62, v. Reynolds 84 simple rejection From the Court’s 1362, 1381, (1964) S.Ct. 12 L.Ed.2d 506 twenty-eight figure” “uncouth sided drawn (“right suffrage is a fundamental matter Tuskegee for the City the Alabama in a free and democratic society”). Under Legislature, Lightfoot, State Gomillion v. doctrine, constitutional well-established 339, 125, 364 U.S. S.Ct. L.Ed.2d 110 “impinges upon action which recent, (1960), subtle, to the and more com- right explicitly fundamental or implicitly plex analyses changes, City of electoral protected by the .. requires] Constitution . States, 156, Rome v. United 446 U.S. judicial scrutiny.” strict San Antonio 1548, (1980); S.Ct. City L.Ed.2d 17, 1, v. Rodriguez, School District 411 U.S. Bolden, Mobile v. 446 U.S. 100 S.Ct. (1973). 93 S.Ct. 36 L.Ed.2d 16 1490, 64 (1980), L.Ed.2d 47 the hallmark of Thus, the applied Court has orthodox strict voting rights analysis has been its close scrutiny right to claims that vote is attention to local detail. cases do not taxes, abridged by poll Harper the use of always upon focus partic- identical list of Elections, Virginia Board of 383 U.S. ulars, nor do always apply to the cho- (1966), proper 86 S.Ct. 16 L.Ed.2d 169 sen systematized factors a analy- scheme of ty ownership requirements, Kramer v. Un sis. whatever variations may ex- ion Free School District No. 395 U.S. ist approach Court (1969), 89 S.Ct. 23 L.Ed.2d 583 review, claims inquiry under re- always and residency requirements, Dunn v. Blum volves around a close look at history, slein, 405 U.S. 31 L.Ed.2d demographics, procedure, and substance (1972). These cases demonstrate that which form backdrop particular abridges when absolutely state action legislative action. right by depriving to vote citizens victimiz Close examination of detail is not to be by challenged ed classification of the mistaken for what has come to be termed ballot, opportunity to cast a the Court will scrutiny” “strict within the parlance of action, scrupulously examine the to deter Equal analysis, though Protection certainly promote mine it is to necessary whether similarities, there are which will be dis- compelling E.g., state interest. Kramer v. is, cussed later. It more truly, a form of Disk, 627, Union Free 395 89 School U.S. i.e., intimate particulars; attention to S.Ct. searching evidence, appraisal of all both circumstantial, direct and exacting to The nature of the and critical relating case at brought hand. This intense bear analysis observation that has been to

966 right expressed “right partici to voting rights claims is less as types of

in other Sims, Starting Reynolds v. 377 pate equal in elections on an basis with clear. 1362, 533, 506 jurisdiction.” 84 12 L.Ed.2d In White U.S. S.Ct. other citizens in the 2332, has reviewed (1964), Supreme 755, Court Regester, v. 412 U.S. 93 S.Ct. 37 legislative reappor- that, (1973), numerous claims L.Ed.2d 314 the Court held by legislatures state passed dilution, tionments prevail order to on a claim vote vote, by wholly abridge right plaintiffs “the must demonstrate right, by diminishing abrogating that but processes leading to nomination and elec Clearly, the effectiveness the franchise. equally open participation tion were not of vote have been these claims dilution 766, group question". 412 by atU.S. interest, have viewed with enormous Hence, context, 93 at 2339. in this S.Ct. provoked prag- form of conscientious and abundantly Court has made clear that the which, inquiry technically matic if not con- adjudicated claims which are in these cases rigors scrutiny”, of “strict cer- fined to the Constitution, arise under the and merit the tainly thorough inspection of the involves a heightened to detail which is rou attention underpinnings, to in- claim and its factual tinely triggered rights when fundamental right to has not sure that the vote been placed jeopardy the state are action. eliminated, while effectively even it is su- Second, for this the rationale close atten- principle is im- perficially preserved. This augmented by presence, tion to detail is plicit Saylor, in United States v. 322 U.S. voting rights all virtually contemporary 1101, (1944) 64 S.Ct. 88 L.Ed. 1341 cases, of a claim that the action of the state (proscribing stuffing), United ballot-box legislature involves some racial classifica- Classic, v. States 313 U.S. 61 S.Ct. fact, simple tion. As a historical the inten- (1941) 85 (outlawing L.Ed. 1368 alteration sity preserva- the Court’s concern with ballots), and United v. 238 Mosley, States right brought tion of the to vote has been (1915) U.S. S.Ct. L.Ed. 1355 about, measure, large by the relentless votes, cast, (requiring that when be count attempts of some states to fence minorities ed),.,. More importantly, explicit it is the Thus, political process. vulgar out entry foundation for the of federal courts gerrymanders racial such as the in- one “political legislative into the thicket” of re Lightfoot, volved in Gomillion v. 364 U.S. apportionment, Reynolds v. effected (1960), 81 S.Ct. 5 L.Ed.2d 110 are cases, progeny. Sims and its For in these both particularly suspect, because the draw- there is no claim aggrieved that the citizens ing jurisdictional boundaries fundamen- wholly are opportunity partic denied the vote, tally right affects the and also ipate in elections which affect them. The because the lines drawn in that instance are, claims in these correctly speaking, cases manifestly type involved the of racial classi- generated by practical reality: by virtue proscribed by fication the Constitution. of malapportionment, the effectiveness of is, now, that, It axiomatic under the franchise be diminished in a man Equal Protection Clause of the Fourteenth ner that offends the Constitution. As the Amendment, explicitly classifications based Reynolds Sims, Court noted in right v. “the on race “immediately suspect.” Kore- suffrage can be denied a debasement States, 214, 216, or matsu v. United weight dilution of the U.S. of a citizen’s vote 193, 194, just (1944). S.Ct. 89 L.Ed. 194 effectively as See by wholly prohibiting 497, 499, Bolling also Sharpe, free exercise franchise.” Indeed, (1954). U.S. at 98 L.Ed. 884 S.Ct. at 1378. (Emphasis supplied.) The Supreme operate racial classifications which on the Court has thus explicitly recognized deprive face of right that the to suf enactments frage itself encompasses right persons of some benefit on the solely effec basis participation tive processes. in the electoral archetypal examples of race are of instanc- Blumstein, 336, In 330, Dunn v. 405 92 es apply U.S. in which the Court will strict scru- 995, 999, S.Ct. (1972), 31 stringent L.Ed.2d 274 of review is tiny. This standard

967 classifications, applied correspond logically racial if to what is necessary even independently protected do an not affect Bakke, expressed further design. Cf. right. constitutional 287-291, 2746-2748, 438 U.S. at 98 at S.Ct. Powell, J.) 355-362, (Opinion of 98 S.Ct. complicated doctrine clear has been Brennan, J., (Opinion al.). 2781-2784 et classifications”, “benign the evolution of which, race, though rooted in are rendered noted, Organizations As United Jewish v. pernicious by purported less virtue of their 144, 97 996, Carey, 430 U.S. S.Ct. 51 L.Ed.2d ly purpose. beneficent How such classifica (1977), that, plain 229 makes at least in the tions are to be treated analytically not voting rights, context of classifications yet Compare Regents clear. of University which involve explicit race consciousness Bakke, 265, of California v. 438 U.S. 98 inherently suspect. are not clearly doc 2733, (1978), S.Ct. 57 L.Ed.2d 750 with Fulli umented need for remedial action in this Klutznick, 448, love v. 448 U.S. 100 S.Ct. area, requirements and the of the Voting 2758, (1980). Though 65 L.Ed.2d 902 no Act, Rights cognizance demand of race. may formal standard of review be deduced 159-161, 430 at 97 at U.S. S.Ct. 1006-1007. pronouncements from the Supreme States, also Beer v. United See U.S. subject benign Court on the racial classi (1976) (requir S.Ct. L.Ed.2d 629 fications, certain trends be discerned. ing legislatures retrogression to avoid The Equal Protection does for Clause not However, position minorities). of racial legislatures taking cogni bid from ever legislature’s benign attention to race does race, zance of especially in matters in which legal immunize the state action from issues of race and remedial relief for estab challenge, either on the grojand prior lished discrimination inextricably deprivation action worked to the of other entwined with the substantive issue in dis groups, Organizations United Jewish v. Car Indeed, pute. legislatures may be com Bakke, ey, supra, supra, or on the manded, law, by statute or decisional ground supposed beneficiaries of apprise themselves of the breadth of availa actually the action were harmed options, that, ble it. choosing and to insure them, among vestiges prior discrimi Carey, group In Jews of Hasidic chal- eliminated, nation are or at least minimized. lenged reapportionment a race-conscious E.g., Organizations United Jewish Carey, passed by legislature, the New York state 430 U.S. S.Ct. L.Ed.2d 229 that, on the ground attempting to en- (1977) (Voting Rights requires Act race con strength hance the electoral of non-white sciousness); Regester, White v. 412 U.S. voters, legislature had diluted value (1973) 93 S.Ct. 37 L.Ed.2d 314 of the votes of Hasidic Jews. Court (history voting justifies of discrimination in claim, rejected the and found that race-con- requirement that state affirma benefiting acknowledgedly scious action tively remedy existing denials of access to disadvantaged permissible, if class was political process); see also Green v. action in truth advanced the interests of Board, School 391 U.S. 88 S.Ct. attempt that class and taken in an (1968) (continuing L.Ed.2d 716 affirmative comply statutory require- established duty to vestiges segregation eliminate ments. education). analyzing the constitutional claims of hand, that, appears On the other vote dilution under the Fourteenth and Fif- contexts, action, most race-conscious even if Court, Amendments, Carey, teenth generated by an avowedly “benign” pur- acknowledged explicit racial considera- pose, will receive the exacting perusal. most engendered had the action of the state tion circumstances, In these pur- asserted 151-52, legislature. pose of body closely will be examined, undisputed fact 1002-03. to insure that it is in some sense “compelling”; reapportionment that the action of the stat- classification will be inspected to attempt insure that its actually passed confines ute had been in an to satis- war- which, independently, would standing 5 of of Section requirements

fy the searching in review of the state’s action Rights Act cast the rant a close and Voting considerably light, and of the state wholly legal components different a factual and which exacting scrutiny typically First, right here, dulled the a fundamental action. — activates, even ordinarily race consciousness on an participate in elections right Indeed, “benign classifications.” in cases of directly equal with other citizens—is basis by the state proffered neither the rationale The the state. by affected an action of action, claims nor the justification for its as that, by virtue of the claim is substantive more Carey given were plaintiffs of the action, been right to vote has state’s Hence, analyti- cursory attention. thаn 966), (see supra p. at because the denied by Carey which was decided cal scheme diluted. impact has been plaintiffs’ electoral to what is called in great similarity bears Second, action of the state challenged Equal language Protection “ra- orthodox classi- explicit an racial legislature involves analysis. relation” tional deprives the sus- allegedly fication which However, for Carey guidance offers no protection. pres- equal class of pect by pur- analysis brought of claims ence, action, separate, of these two in one legis- of race conscious ported beneficiaries related, claims, stands each of which though action; voters e.g., had the non-white lative the core of social order established at legisla- the New York State in whose behalf Constitution, is a matter protected by the passed reapportionment its statute ture had importance, regardless paramount ground that it challenged the action on .the applied to the analytical formal framework vote, the unconstitutionally diluted their claim. such a would receive scrutiny level claim claims in this action plaintiffs’ While Essentially legal such a action unclear. not, receive orthodox strict perforce, should that, claim would involve the factual presence of these scrutiny, by reason of the legisla- actuality, the decision of the state nevertheless, considerations, triggering two error, in that the action taken ture was ap two factors conjunction of these particular actually to benefit a class will and, explicit precedent be without pears to work to a case that class’ detriment. Such so, defy orthodoxy. may be said to might that the overt allegation involve an voting rights law in the shifting tides of of race allegedly benign consideration wake a have left in their past two decades was, legislature conducted the state than a analysis rather broad framework sham, up some reality, designed to cover for review. The Court’s precise formula purpose. hidden and forbidden More chari- area, City of decision in this most recent tably, might such a suit claim Bolden, 446 U.S. S.Ct. Mobile v. legislature profound had committed a error (1980), the most 64 L.Ed.2d 47 offers judgment, assessing impact its of the claims group guidance action would have on the toward for assessment issue, sup- majority opinion the state was though the solicitude of the lack of case, posedly substantially directed. In either its clari undermines in Bolden protected from invidious classifications extri attempting to before ty. judicial scruti- analytical shield of strict proper structure cate from Bolden the ny explicit would assert that an racial clas- action, it is in this review of the claims sification a state had uncon- the state action chal to note that crucial protec- stitutionally equal denied the class explicit lenged Bolden did not involve question tion of left unan- the law. The Instead, the claim was racial classification. body Supreme swered Court deci- statutory provi facially neutral dealing benign sions classifica- racial at-large system of mu mandating an sions tions, then, scrutiny will be level what elections, City of employed by the nicipal as applied type. to claims Mobile, constitutional and stat violated the city. rights of black residents utory judice Cases such the one sub involve 58, 100 factors, at 1495. Since of 446 separate confluence of either two

969 laws of and Mobile teenth and Fifteenth Amendments. In this state and local Alabama dissent, at-large it is assumed that this additional which established the Commission presence any way not vitiate the government for the did not does in city form of classifications, requirement. keeping intent In with the the explicit contain racial pattern Supreme of Court decisions in this challenge to these laws was treated ac- area, legisla- the race consciousness of the cordance with established doctrines of intensify apprais- ture will serve to the Equal pertaining Protection law to chal- design reappor- al of the and effect of the lenges ostensibly unbiased laws. Within plan. tionment framework, “[p]roof racially this of discrim-

inatory purpose required intent or is Bolden, things In the certain are wake Equal show a Protection violation the assuming manifest. Even race-con 1500, 67, Clause.” 446 at 100 at U.S. S.Ct. part legisla on the sciousness the state quoting Arlington Heights Metropolitan v. proper approach ture would not alter the 252, Housing 97 Corp., Dev. 429 U.S. S.Ct. type, opinions claims of this which form 555, (1977). 50 L.Ed.2d 450 incorporate large majority Bolden Bolden, portions of Supreme the antecedent Court

There no nor did evidence relating claim, decisions to claims of vote dilution. plaintiffs establishment plurality opinion highly contains a self- at-large explicit elections Mobile involved Bolden, analysis precedents, conscious plain- racial classifications. places ruling firmly

tiffs Bolden within the relied on claim of vote dilution under evolution that doctrinal structure. 446 Fifteenth Amendment and a claim of 61-66, U.S. at 100 at 1496-1499. equal protection, by denial of S.Ct. See facially 83-87, enactment, also 466 at 100 U.S. at 1508- neutral under the Fourteenth S.Ct. (Stevens, J., concurring 1510 in judgment). plurality opinion clearly Amendment. The Therefore, the central thrust of Bolden indicates that the latter claim was treated application requirement —the of the intent specifically analysis within the mode es- claims of dilution under the Four challenges tablished for to seemingly impar- teenth and simply Fifteenth tial enactments. 446 100 U.S. at S.Ct. Amendments - explicit proof makes under burden Davis, Washington at 1499. See 426 U.S. previous voting rights which claims had (1976). 96 48 S.Ct. L.Ed.2d 597 the highly been resolved.2 Given contextu Additionally, interpreted the opinion claims, voting rights al nature as well as body of Fifteenth case Amendment law as process by detailed which are to be standing proposition for the that claims of resolved, categorization the broad doctrinal vote dilution under that Amendment must which is City central to of Mobile v. Bolden meet these standards as well. 446 U.S. at ultimately of less value lower courts Thus, guidance S.Ct. at 1497. faced with claims of vote dilution than are Bolden, furnished by City of Mobile v. guidelines, explicit implicit, either or as to valuable, though ultimately defini- properly analyze specific how factual tive, for that case did not involve the two legal claims raised an action. activating strands scrutiny” “strict claims involved in the action at issue. The noted, has, As Supreme Court on oc- opinions various wholly open ques- leave casion, specific, explicit offered criteria for tion of what presence effect the additional the assessment of these claims. other At of a racially classification would times, conscious gleaned the standards must be have on the reading standard of review accorded evidentiary a close review claims which brought are under the Four- conducted the Court. In the course of Marshall, 103ff„ (1971), 2. Justice U.S. at U.S. S.Ct. 29 L.Ed.2d 363 1520ff., White, 94ff., Regester, and Justice 446 U.S. at and White v. 2332, 412 U.S. 93 S.Ct. 1514ff., strenuously challenged (1973), indisputably 100 S.Ct. at 37 L.Ed.2d 314 interpretation. espe major analyt prevailing Justice White’s dissent is cornerstones in the cially noteworthy, voting rights jurisprudence. in that he the ma authored ical structure of Chavis, jority opinion in both Whitcomb v. scruti- recognizes latter case itself to claims requirement intent applying dilution, opinion inquiry a sensitive plurality ny of intent “demands of vote incorporated the eviden- Bolden explicitly circumstantial and direct evidence into such intent, first set proving tiary prototype ... as be available.” U.S. Heights v. Village Arlington evidentiary type forth 97 S.Ct. at 563. Corp., Development Metropolitan White v. Re- investigation required under 555, 563-565, 266-68, 50 252, 97 S.Ct. gester wholly recog- with this is consonant Bolden, 446 70, at (1977). U.S. L.Ed.2d 450 However, it is crucial to note that nition. Heights Arlington 100 at 1501. S.Ct. brought against of vote dilution claims length later in will be discussed at factors which, as in the case under state actions now, it should be noted this dissent. For consideration, concededly race con- are factors in identification of relevant that the scious, respect from the differ in a crucial Arlington Heights did not “purpor[t] to be Arlington Heights, by claim at stake in 97 at exhaustive.” 429 U.S. S.Ct. presence of of funda- virtue the combined Therefore, while those factors offer a rights and overt race consciousness. mental inquiry, they of should sense of the nature then, extent, To the this additional establishing be as taken boundaries even closer burdening of the claim warrants Indeed, light review. in of the affirmation attention within the established canons voting rights involving cases previous law, appropriate entirely it is Constitutional Bolden complicated inquiries, may factual sharp- be that the focus of the court should aug fairly offering seen as a means be guidance by ened the additional afforded by Arlington Heights inquiry. menting the the White factors. unequivocal the endorse specifically, Most ap necessity “intensely for the local the Bolden court of the by ment Court’s White v. praisal design impact”, Regester suggests v. decision in White at 2341, Regester, 93 412 U.S. at S.Ct. evidentiary inspection the meticulous legislative redistricting schemes is fur by factors the court in conducted district supported by ther additional elements Barnes, case, Graves v. F.Supp. 343 704 as one present which are in cases such the (W.D.Tex.1972), precisely is re what First, definition, by bar. the redistrict quired legislative in the search for intent. ing process highly political. politi These sum, brought claims of vote dilution “inseparable” cal considerations from under the Fourteenth and Fifteenth indeed, process; many ways must Amendment establish that the al provide practical and semantic frame legedly discriminatory prod action was the observed, work As process. for the entire purpose uct of an invidious an investi Carr, Court, in Baker v. Supreme gation purpose inquiry of that involves (1962), 7 L.Ed.2d 663 U.S. S.Ct. proceed along path which must demarcat “political held that of these presence by Arlington Heights, ed and further clari shield the questions” could not serve to by previous rights fied cases such as process judicial in Regester. White v. However, recognition, quiry. beyond that adopted To the extent that the criteria admixture of constitu it is clear that Regester White v. deepen broaden and tional and issues which shrouds the inquiry, may extension be accounted apportionment process fundamentally af by presence, in that case and other manner in courts must in fects the cases, vote dilution of the confluence of the charges of dilution. vestigate vote precipitating two elements mentioned cursory As even a review of record rights above—fundamental and race con- demonstrate, legislative this case will de- suggest sciousness. This is not to redistricting provides bate on a forum in “intensely appraisal” local commended Regester, Court in White v. representatives relentlessly elected at which U.S. range full of issues bring to the fore the any way S.Ct. at traduces (The Indeed, Arlington Heights. spirit their constituencies. which affect depressing legacy these concern- electoral discrimina- variety multitudinous body ments is demonstrated the vast very tion in this nation. vol- voting rights, involving case law claims of voting rights litigation ume of meritorious justifications proffered by the past twenty years appears, —which supporting state as the scheme under at- fact, increasing as a testa- to be —stands tack, well.) typi- as Certain of the matters guile power, ment of those in as well in the course of cally advanced Yet, intransigence. already as to their as redistricting explicitly debate on have been to, alluded it is well-established that approved reviewing as relevant courts sophisticated Constitution “nullifies as well process. Other interests have been ex- simple-minded modes of discrimination.” pressly inappreciable. found Still oth- Wilson, Lane zone, ers stand some intermediate in that (1939). Specifically, L.Ed. 1281 considered, they may legitimately be but explicit the common awareness that racist dispositive. not be treated as But judicial classifications will not survive in- while the relevance of certain these con- spection may safely the be assumed to have adjudged, cernments has been legisla- driving effect of illicit motives into some replete tive record is with references to sanctuary purpose, darkened of hidden matters, undeniably other all inherent in emerge will guise which of some circumstances, may localized which several- legitimate simple, concernment. This intui- ly stand at various gauge levels on the of acknowledg- tive axiom stands behind relevance. The subordinate details of these Arlington Heights ment by the Court concernments must be accorded close exam- inquiry into intent will involve a ination, accuracy legal and their factual and survey of circumstantial as well as direct validity must be assessed. Deference to the evidence. The Fifth has stated that Circuit choice, legislature’s whether as to identifi- voting dilution case in which the “[i]n regarding cation or relevant issues or their challenged system was created at a time resolution, inappropriate. final The en- may may when discrimination or not have inquiry searching, tire must be rooted and purpose, unlikely plain- been its it is in local reality, and otherwise. Cf. proof tiffs could ever uncover direct Regester, White v. 412 U.S. at 93 S.Ct. for the system being such maintained at 2341. purpose Lodge of discrimination.” v. Bux- Second, mentioned, voting the issues of ton, (5th 1981). 639 F.2d Cir. dilution, voting rights, and all its corollary Third, increasing sophistica- the fact of claims, subjected have been to elaborate problem correlative in the tion involves a judicial inquiry period over a of decades. legislative assessment of motivation. In law, legislatures As a of state matter hand, the case at the state constructed an presumed to be on notice of these decisions. drafting apparatus elaborate of re- importantly, More as a of practical matter Indeed, legislation. those fact, have, legislatures state as a result of spoke pointed who for the state to this prolonged repeated exposure litiga- pride throughout mechanism with this ac- tion, legal become thoroughly aware Computerized demographics great tion. consequences of their actions in the realm available, readily detail to supplement were reapportionment. Additionally, the fre- knowledge the common distribution quent pronouncements of federal courts in of racial minorities across the state. The detailed, presented this area have if not lucid, process freighted entire with a keen always standards ac- their awareness race. Yet this combination judged may tions will be and what factors inquiry facts not deflect the into mo- legitimately motivate their decisions. Sure- Indeed, ly tive. to the same extent that the proscrip- the intent the Constitutional vote, data right technology may, tion elaborate racial of denial of the claims, benign facilitated vigilant application provision by of that as the state have so, too, courts, legislature, federal has been to eliminate the action of the state barricade, First, incorporates analyzed. served as an ornate Bolden may have fundamentally scrutiny Heights. from some Arlington deflect criteria set forth in purpose. Common sense dictates Second, invidious Regester, Bolden affirms White v. imposing precision allow the that courts not and the use of other factors in the course technology inquiry to frustrate the into plurality opin- inquiry into intent. The process. Nor should the places Regester ion in White v. in a Bolden openly the state acknowl- mere fact voting holding plaintiffs line of cases decision, edges component the racial of its rights must establish invidious in- action benign purpose, somehow di- professes but prevalence plaintiffs tent. Given intensity scrutiny given of the minish the of vote Regester White v. on their claims that, brought by alleging claims minorities dilution, review conducted evidentiary reality, their interests were undermined. case, fortiori, by the in that stands Court conclusion, inquiry claims such as those into the as a sufficient intent brought by plaintiffs various in this legislature. Accordingly, the ana- factors searching action must be accorded a lyzed Regester may, perhaps in White v. analysis of legal detailed their factual and must, be used to discern the intent of the First, challenged bases. the state action passing state Texas Senate ability affects the of citizens to exercise the Bill No. 1. right fundamental participation recapitulate, plaintiffs’ To claims in this Second, process. electoral classification intensely appraisal action demand an local involved in the state action was made of the design impact Congres- high degree of awareness of its racial reapportionment passed sional bill Third, nature, impact. their legislature. appraisal Texas state rights highly politicized claims involve deci- understanding must blend an of the histori- Fourth, sions. the legislative decisions in decision, background cal with close this pletho- area are made on the basis of a and present reality, political examination of concernments, ra of eye localized with an affected, otherwise, in turn will be as and the effect the specific decision will have on by, affected Bill No. 1. Senate Fifth, classes of citizens. history of voting rights litigation has created a situa- III. tion in which all actors are acutely self-con- scious, highly and legal aware of the stan- Proving Discriminatory Intent dards under which their actions will be analysis legislative purpose of is in- scrutinized. following clusive of the factors: light factors, In complex rigid of this of adherence to orthodox equal standards of Background 1. Historical of the Deci- protection analysis inappropriate. is It sion. beyond that, doubt as a matter of ultimate Scrutiny of this is explicitly ap- factor resolution, the City standards advanced in proved Arlington Heights, at met, of Mobile v. Bolden must be in order 267, 97 Additionally, S.Ct. at 564. White plaintiffs prevail on their claims. Court, Regester, separate v. three However, body the full of Supreme Court places, ap- sanctioned the careful historical decisions stands in direct contrast proach taken lower court in that assertion that claims such as the one sub 766, 767, 769, case. 412 U.S. at judice may be simple equal pro- reduced to 2339, 2340, 2341. v. See Graves Barnes claims, tection treated a formulaic (Graves I), (W.D.Tex.1972). F.Supp. manner. Nor require does Bolden itself course, provoke Of state actions which this sterile and diffident treatment charges racially claims which motivated discrimination lie so close to the heart of our vacuum, Indeed, noted, rarely constitutional order. arise in an as Bol- historical den contains suggestions two related allegedly discriminatory con- which an action is cerning how vote dilution claims precedent be without or which is not rooted in which, prior long tragic legislatures comply discrimination. The rather than with litigation affecting course of race law, stands as the clear command of the in choose ample virtually testament to the inextri- stead devise clever means of circumvent cable legacy segrega- enmeshment of the it, Court, ing Supreme has led the in its legally tion and mandated discrimination scrutiny apportionment plans, to insure patterns inequality current and en- given plan that a does “perpetuate ” during deprivation. ‘ghost prior malapportionment.’ Burns Richardson, v. 384 U.S. 86 S.Ct.

In desegregation, the context of school (1966), quoting 16 L.Ed.2d 376 Buck Supreme acknowledged Court has Hoff, legal (D.C.Vt. ley F.Supp. assessment of claims of racial dis crimination, subsequent 1965). and any Though remedial delivered in the contextual measures, must be light conducted in challenge relation of a to actual numerical established history. E.g., Green v. County caution, substance, apportionment, Board, School 391 U.S. 88 S.Ct. 20 speaks practical reality legisla that a (1968); L.Ed.2d 716 Keyes v. School District ture past pur which in the has acted in a 1, Denver, Colo., No. 413 U.S. 93 S.Ct. posefully discriminatory may manner do so (1973). (The 37 L.Ed.2d 548 analogy again, albeit in a more subtle form. desegregation between school course, Of even a clear demonstration of rights cases will developed later. See historical prove discrimination does not 973, 974, 976, infra.) pp. obliga present Indeed, intent. such a manifesta- tory requirement starting that the point of tion would not even rise to the level of legal analysis be a scrupulous consideration presumption formal purpose. The law of historical circumstances built on the contemplate does not any theory original recognition common-sense pat present social sin, state, under which a guilty once ducational, demographic, terns-e legally discrimination, mandated racial economic - and the responses purge never itself of such sinister motiva- them, product are the experience tions. jure/de as the de facto changes in attitudes people, distinction desegregation in school law occur or develop through time. clear, proof makes of prior discriminatory jurisprudence no area of is this dia- legal system may drastically alter the man- process chronic justified more than in the ner in legal obligations which formal law pertaining to voting rights. The histo- applied particular to government. units of ry of exclusion of minorities from the demo- In the context of desegregation school process cratic is so well-documented as to be law, objective of the entire line of cases beyond question. Indeed, constitutional descendent from Brown v. Board of Educa- history since the Civil War be seen as a tion is “to public eliminate from the schools “movement democracy toward for more all vestiges state-imposed of segregation.” than a few.” City Bolden, of Mobile v. 446 Swann v. Charlotte-Mecklenburg Board of U.S. at (Marshall, J., 100 S.Ct. 1520 Education, 1, 15, 402 91 U.S. S.Ct. dissenting); Constitution, United States (1971). 28 L.Ed.2d 554 light In of this 15, 17, 19, 23, 24, Amendments and 26. objective, which, past, school boards in the Specifically, the Fifteenth Amendment operated “state-compelled had systems dual placed in the text of the Constitution the were . .. charged with the affirmative nation’s firm resolve to eliminate the dis- duty to take steps might whatever be neces- criminatory structure of democratic self- governance. sary to convert to a unitary system in which This Amendment has met racial “unremitting discrimination would be ingenious eliminated defiance” which has served root and branch.” to Green v. maintain the “insidious School pervasive Board, 430, 437-38, evil” of racial 391 U.S. 88 S.Ct. discrimination 1693-94, voting. Katzenbach, (1968). South Carolina v. 20 L.Ed.2d 716 Even if at U.S. 86 S.Ct. legal challenge time the actual to school (1966). L.Ed.2d 769 The inventiveness of assignment plans brought, is govern- system does did plan mental unit not maintain a of court not address whether any segregation, contemporary perpetuated purposeful racial as- existent in- held, effect, signment access, to plan discriminatory be taint- tentional of denial prior by legacy segregation. ed because it erroneously had concluded that then, background, historical is much past more denial of access had attenuated point departure judicial a valid present than and that no denial existed. cases, inquiry. desegregation In school F.2d at 146. necessary historical context stands as the Thus, Appeals found the Court predicate action, any subsequent by fundamentally, the lower court had erred instance, and, later, school board in the first failing present plan light consider the challenge the court when faced with a prior governing body. actions In system public education. has, a situation in which the state in the Appeals for the Fifth Court Cir past, overtly consciously discriminated suggested cuit analogous has that an doctri race, the basis of later actions applicable nal voting rights structure closely state must be scrutinized to insure challenge cases where the is brought stamp do not bear the of this which, against jurisdiction past, has discrimination, are, prior if even the actions system maintained a of enfranchisement or nominally, racially neutral. The court not- apportionment that denied minorities effec ed that tive access to process. the electoral [wjhere plan, though racially itself neu- Kirksey Supervisors v. Board of Hinds tral, carries forward intentional pur- Miss., County, (5th 1977) 554 F.2d 139 Cir. poseful discriminatory denial of access (en banc), denied, cert. effect, already that is it is not constitu- (1977), L.Ed.2d the Fifth benign tional. Its nature cannot insulate Circuit, banc, sitting en reviewed a chal redistricting government entity from lenge county apportionment to a plan on existing plan taint. If a neutral were alia, ground, inter that the uncon permitted effect, to have this minorities stitutionally strength diluted presently denied access to life for black county. citizens in the The district unconstitutional reasons could be walled court found racially that the neu off against from relief continuation tral, and so Kirksey constitutional. that denial. The redistricting body would Supervisors, (S.D. Board of 402 F.Supp. 658 only need adopt racially benign plan Miss.1975). The panel initial of the Court permitted past record of the Appeals (5th affirmed. 528 F.2d 536 Cir. continue unabated. Such a rule would 1976). banc, Upon rehearing, en the court sub silentio Regester. overrule White v. reversed the finding. trial court 554 F.2d at 146-147. The analytical ap- review, As a foundation for its the Court proach upon Appeals relied the Court of Appeals noted that plaintiffs were with, entirely in this instance is consistent required to demonstrate pur- an invidious on, and in fact is founded an inquiry into pose prevail in order to on their claims. essence, motivation. In this Further, pointed it out that the lower court merely manner of review stands for the had engaged required in the inquiry into proposition prior history that a of discrimi- However, intent. inquiry because this con- prima validity nation undermines the facie by ducted the trial court was unduly trun- facially apportionment plan. of a neutral cated, its finding neutrality racial was stated, Kirksey great The court in incorrect. The court stated: force, nothing Supreme that in the Court

The court found that the motives were cases which establish and refine the intent neutral with respect drawing requirement can be taken to hold that plan .... In the narrow purposeful context of the “where and intentional discrimi- drawing exists, plan, this was plainly already nation it can be constitution- erroneous, but it was too narrow. The neutral ally perpetuated into future

975 Mobile, clear in City Court has made action.” Id. at 148. in the official Stated obverse, then, redistricting a is consti- plan holding squarely was within the line of tutionally impermissible discrimi- racially require plaintiffs cases which demon- 68-69, if denial perpetuates an existent natory, strate invidious intent. 446 at U.S. politi- the racial access White v. Regester, 100 S.Ct. at 1500-1501. Bolden, cal Id. at 142. Robinson process. See also in and its stand for the affirmation 674, Court, v. F.2d 677 Commissioner’s proposition by the Fifth in advanced Circuit 1974); (5th Moore v. Leflore Cir. Kirksey, plan, though itself that “[w]here Comm., Election neutral, Board of 502 F.2d facially carries forward intentional 1974). (5th Cir. discriminatory and purposeful denial of ac- effect, already cess that is in it is not consti- summary contemporary voting tutional.” F.2d at 146. with, rights wholly law is and in consonant fact, Supreme for its validity, relies on the analogy The to school deseg terms of holding in v. Regester. Court’s White regation may now be cases stated with that, central doctrine of that case in was In v. precision. more cases such as Green dilution, prevail on order to a claim of vote Board, 391 County School U.S. 88 S.Ct. plaintiffs must (1968), 20 L.Ed.2d 716 held Court

produce support finding evidence to that school districts which have intentional political processes leading ly racially segregated maintained school dis equally nomination and election were not duty tricts an affirmative to dis are under open participation by group in system. adopted mantle the dual Plans question op- its members had less attempt school in an to accomplish districts —that portunity to participate in the objective must be shown to do so in processes legislators and to elect their fact, the beneficence school board choice. Green, notwithstanding. the school rejected board “freedom-of-choice” at 93 S.Ct. at 29 L.Ed.2d U.S. order, adopted pursuant to court because it Chavis, citing Whitcomb v. 403 U.S. obligation did not upon meet the incumbent 149-50, 91 S.Ct. 29 L.Ed.2d 363 segregation eliminate district root (1971). In holding plaintiffs in adopted by and branch. burden, Regester White had met this per school was not se board unconstitution upon relied court evidence that demonstrat- al, nor, isolation, when viewed could in long history ed a of official discrimination vidious inferred adoption. intent be from its minorities, against indif- concomitant it was held unconstitutional needs, to their part ference on the of white light history of educational discrimi auspices officials elected under the of a district, nation in and the fact that the system. biased undemocratic electoral plan perpetuated the effects of that dis 2339-2341; 766-769, U.S. S.Ct. at criminatory legacy. City Bolden, see also Mobile v. 100 S.Ct. at 1501. terms, Regester In correlative White v. suggestion holding, essence, There was no v. Re- in White be seen as gester which, jurisdiction past, that the most recent of when re-enactment has was, practiced multi-member when jure districts Texas de discrimination in isolation, product adopts plan, viewed an invidi- reapportionment Rather, ously discriminatory purpose. existing denials remedy must of access or it White, districting it was shall intentionally found that be deemed discrimi- system fatally history natory. Kirksey Supervi- infected v. Board of the See discrimination, sors, Miss., 139, ap- County, and that the existent Hinds 554 F.2d 148 16; Amos, portionment of representation perpetuated F.Supp. n. see Sims v. also 215, processes (M.D.Ala.1973) in which system (three-judge 220 n. 2 court). leading analogy pursued, nomination were not is and election not open equally Supreme suggest prevailing structure of vot- minorities. As the isolation, that, ing rights law creates on states an affirma- but also to make certain obligation remedy existing face, tive denials of though neutral on its the action does access, matter, presumptive as a formal but perpetuate prior not the unlawful effects highly comparison, as a instructive is purposeful appraisal discrimination. This is attempting clarify process relevant in precisely the kind that was conducted in of blending contemporary historical and ev- Regester. White v. First, perscrutation idence in the of intent. racially 2. The discriminatory impact of underlying justi-

it should be noted that the the action fication equal opportu- for the elevation of nity to the forefront of the concerns of the Arlington Heights, the Court noted Supreme Court was the effect education impact of the official action . .. “[t]he has on the ability participate citizens to may provide important starting point” process in self-government. Brown for the inquiry” “sensitive into intent. 429 Education, 483, v. Board of 347 U.S. 266, 97 S.Ct. 563. The realistic 686, (1954). Hence, 98 L.Ed. 873 S.Ct. assessment of the effect a particular duty affirmative which is the cornerstone legislative merely logical action is under pro- the remedial enforcement of the pinning inquiry for an is intensely scription against segregated schools has practical. As the court stated in Personnel implemented been pursuit of the ideal of Feeney, Administrator v. 442 U.S. Second, participatory democracy. n. S.Ct. n. 60 L.Ed.2d right Court has held that the to education is legislature, any or official “[w]hat right, not a fundamental and so does not entity ‘up to’ may plain be from the rigorous protection warrant of strict achieve, results its actions or the results scrutiny. Independent San Antonio School they avoid.” Rodriguez, Dist. v. 411 U.S. 93 S.Ct. “Racially discriminatory impact” operates (1973). 36 L.Ed.2d 16 at two stages, different process combination, Viewed in these two facts evaluating claims of Though this nature. suggest importation that the of “affirma- phases be, matter, these aas technical duty” tive analysis into the voting area of distinct, analytically they are intrinsically law, rights at least as an evidentiary mat- First, related. for a claim to be cognizable ‍​​​‌​‌‌‌​​​​‌‌​​‌​​​​​‌‌​‌‌‌​​​‌​‌‌‌​​​​‌‌​​‌​‌‌‍ter, is entirely appropriate. Surely, it can- Clause, under the Equal Protection not suggested Supreme be that the Court is challenged must, fact, state action deny vigilant more protection of non-fun- equal protection of example, the laws. For rights damental than those which are Davis, Washington 426 U.S. deemed logic fundamental. Nor does sug- (1976), 48 L.Ed.2d 597 had the gest that rights fundamental pre- best plaintiffs failed establish that the test served at a secondary, primary rather than used Columbia Police stage. relationship between education Department had a racially discriminatory reciprocal dynamic, failed, impact, the claim would have essen- both components of equation are wor- tially for prima lack of a facie case of race thy of the close attention which is mandat- is, discrimination. That actual discrimina- ed holdings Supreme Court. tory effect is a threshold matter for a claim holdings These lingering command that all Equal under Protection Clause. vestiges of legally segregation enshrined Second, crossed, if that threshhold is eliminated, so that the legacy of racial dis- plaintiffs disproportionate impact, establish longer crimination no poisons contempo- our a closer impact examination the actual rary systems of education and democracy. conducted, will be as an evidentiary source As a practical matter, when confronted inquiry. Arlington Heights, the intent here, claims of presented the kind supra. action, courts must appraise to insure justification the instant action is impact for evaluation of free of purpose invidious when viewed in inquiry at this second level of lies in the law, application, may of the stand body legal strong to as a inference of this principle presumed person intent, that “a “a working tool not a [which is] logical consequences to intend the of her synonym proof.” for 442 U.S. at 279 n. actions.” This maxim has been a corner at Yet 99 S.Ct. 2296 n. 25. the Court’s legal stone of Anglo-American system the to Feeney emphasize discussion serves See, for e.g., centuries. Townsend v. Wa th strength of permissive presumption. the en, (K.B.1808). 103 Eng.Rep. 580-81 It Feeney, In the inference of intent from the applied has been variety in a broad of con foreseeable, indeed, clear demonstration of law, texts in civil and criminal and stands impact inevitable made case component as an indispensible of our sys ripen proof” to into because the “fail[ed] tem of jurisprudence. impact state able to establish “the application Its context of essentially criminal an unavoidable conse- [was] cases, law enlightening. long In a line of quence legislative policy a that has in Supreme upheld statutory Court has always legitimate, itself been deemed to be presumptions common law which allow when, here, statutory history juries to convict criminal defendants on the all the available evidence affirmatively intent, basis of an or mens inference rea. demonstrate the opposite the infer- [of See, e.g., Allen, Court v. Ulster (emphasis Id. supplied). ence].” U.S. S.Ct. L.Ed.2d 777 emerges What from the discussion of (1979); States, Leary v. United 395 U.S. principles type escalating these is a infer- (1969). 89 S.Ct. 23 L.Ed.2d 57 strength of ential standard. The the infer- effect, juries this presumption allows to ex- ence to be made from established discrimi- done, amine what was actually and also the natory impact correspond pres- will effect it analysis, had. the jury From this or ence absence of certain crucial variables: permitted inferential leap make the severity impact, degree that, naturally if the result flowed foreseeability, validity of alternative action, the actor the consequences. intended action, explanations for the and the state logical upon connection which this in- credibility of the record as legislative sup- ference is based held to be suffi- has been factors, port the final action. These ciently strong person a convict under the turn, incorporate variety subsidiary a (This “reasonable doubt” standard. is not inquiries, notably, the extent to which the say presumption that the itself must be legisla- record reveals beyond valid a doubt. reasonable See Ul- actually dispropor- ture was of the apprised Court, ster County supra, U.S. at 163- contemplated action, impact tionate 2227-2229.) Thus, 99 S.Ct. at it should responses warnings to these which were be noted that the inference intent from elicited, and the of state validity policies effect has a upheld been in context in which support action offered of a final party (the relying inference a had foreseeable and foreseen effect. State) is stringent held to the most stan- proof, dard of party against whom Additionally, the discussion of foregoing (the the presumption defendant) is applied duty” the existence of an “affirmative is, a law, as matter of constitutional enti- remedy existing access to denials of innocence, tled to a presumption of which political process application has a degree may only by proof, beyond be overcome phase as well. Prior inquiry doubt, necessary reasonable of all elements findings of historical and actual discrimina- charged. offense voting may legisla- tion in create on state tures, legal obligation, as a category of Arlington Heights suggest does duty plans any to eliminate from future the relationship effect between and intent (See supra, vestige of racial discrimination. rises to the level of formal mandatory Moreover, fact that See, 973-974.) pp. presumption. have main- And in state has been found Feeney, the Court made clear that a voting practices impact, discriminatory demonstration of foreseeable tained

978 Bolden, past holding,

the stands as the assuredly notice to the Court affirmed this legislature racial considerations must entirely and found it the consistent with be at the of the entire apportion- forefront required by evidentiary standards the Four- Thus, prevalence process. ment the of ra- teenth and Fifteenth Amendments process apportioning cial of concerns 69, claims of 446 100 vote dilution. U.S. at congressional representation justifies the S.Ct. at 1501. acutely conclusion that the that, Common dictates when the sense impact aware of the its actions would have explanations formal and theoretical of stan- ability on the effectively of minorities dards proof insufficiently precise of Hence, exercise the franchise. the infer- allow ac- exegesis application useful and impact ence of intent is strengthened cases, tual may profitably fo- attention be that, practical reality the in this in- cused on cases in plain- other actual stance, consideration of foreseeability is not tiffs prevailed given have under the stan- speculative, objective nor on assump- based Hence, light dard. of ambiguity in of Instead, tions. in legisla- it is rooted a clear the evidentiary review tive recommended Ar- record which demonstrates that lington Heights, Regester White v. consequences must of Bill Senate No. 1 were foreseen, carefully to actually examined determine what fac- and were actually con- templated gained of the tual showing imprimatur one two has of fundamental concerns of process. See, the entire e.g., Supreme Court. 52, DX 16, No. 15 (July 1981); at DX (Graves I), In Graves v. Barnes 2-4; 4.4.4; 4.4.1 at Deposition DX Lynn of (W.D.Tex.1972) F.Supp. 704 (three-judge 150; Moak, at Deposition Shep- Kenneth court), the court district conducted a thor- 13; ardson at Deposition of Peyton Mc- elaborate, ough, searching and examination Knight at 11. history racial in discrimination These first two elements the inquiry— Texas in to contemporary relation electoral background historical and actual impact— practices. reviewed, Additionally, the court have been great length. discussed at great detail, in practical effect of elaborate consideration these two factors maintenance of multi-member in districts generated by an evaluation of the com- Bexar and Dallas counties. On the basis bined import Supreme Court’s deci- review, the district court concluded sions Regester, in White v. U.S. system represen- of multi-member 2332,37 S.Ct. (1973) L.Ed.2d City tation in Dallas Bexar unconsti- Bolden, Mobile v. 446 U.S. 100 S.Ct. tutionally rights abridged of blacks and (1980). 64 L.Ed.2d 47 Hispanics participate vote in Bolden, As the Court noted White process. electoral Regester is the case in which the Court findings These were affirmed in v.White has upheld a constitutional challenge to Regester. ap The Court unanimously districts, multi-member on the basis that proved the of history and in “blend [the] the apportionment entailed those dis tensely appraisal design local

tricts unconstitutionally voting diluted the ” s impact apportionment in Dallas strength Bolden, of a group. discrete su and Bexar counties. 412 U.S. at pra, 446 U.S. at 100 S.Ct. at 1500. In (emphasis supplied). S.Ct. at 2340 As made prevailing Regester, plaintiffs White v. Bolden, Court, clear in White v. Re demonstrated political that “the processes gester, found that the “multi-member dis leading to nomination election were not tricts used being invidiously to can equally open participation [were] by the groups cel out question or minimize the strength its members op had less - that groups.” racial portunity 412 U.S. at than other did residents in the 2339, quoted district to participate relying heavily in Bolden. In processes and legislators to elect background evidence of historical their choice.” 412 S.Ct. at scheme and on its actual undermined, functioning legitimacy This facade of impact on the of the electoral system, the district court in Graves v. when, however, making substantive properly applied evidentiary Barnes choices, legislature appears apply establishing standards for intent to discrim- criteria, varying contradictory or without voting rights inate on the basis of race in justification. sound In Antonio Inde San matters. pendent Rodriguez, District v. 411 School explication The elaborate of these two 1, 1278, (1973), U.S. 93 36 L.Ed.2d 16 S.Ct. dissent, factors this and the reliance on upheld financing the Texas school Court subsequent them in the evaluation of the against system equal protection an chal action, prod- evidence adduced in this is the lenge. policy The state under attack had Supreme uct the clear force of (1) essentially components: two the state holdings concerning Court’s the burden provided aid to local school districts on basis proof brought dilution cases under of a applied equally formula which was the Fourteenth and Fifteenth Amendments. state; (2) schools throughout this state grant supplemented was by local tax reve Departures from established substan- Hence, property nues derived from taxes. tive criteria respect with applied total revenue departure A from established substantive public through education local school evidentiary criteria is cited as a relevant boards, locality the amount varied from Arlington source in Heights, 429 U.S. locality according to local wealth and tax Kirkpatrick 97 at 564. S.Ct. See also v. rates. challenged system Plaintiffs this Preisler, 394 U.S. 89 S.Ct. ground Equal it violated the Pro 519; 22 L.Ed.2d v. Barnes Graves tection Clause. (Graves I), (W.D.Tex. F.Supp. 723 1972) court). (three-judge Supreme upheld Court the state substance, scheme. In the Court held that process In the resolving issues such as system applied the state was neutrally legislative reapportionment, impli- which state, across the policy sup- and that factors, cate a broad range legisla- porting preference local autonomy— ture for inevitably will identify criteria which it — satisfied, or, must be was sound. alternatively, pro- should had the state Typically, avoided. conformance fessed a for autonomy desire local in school these gives norms rise to presumption finance and yet varied amount of its validity. This deference is a function of the localities, grants education to the various. Constitutional separation doctrine of validity policy of the would be marred powers, which premised assump- on the by its inconsistent its application, and main- bodies, tion that legislative by virtue of tenance would have violated the Cоnstitu- sentiment, their close ties popular tion. best able competing to sift interests and example exemplifies a situation in equitable achieve an solution to complicated departures from established substan matters of policy. themselves, may, tive criteria demon In judicial terms of legislative review of strate a Equal violation of the Protection acts, respect this for the integrity Clause. is analogous Such case legislative process is manifested in the di- that, recognition, in Arlington Heights, sinclination of federal courts to invalidate instances, special racially disparate impact legislative acts rationally which are related might prove alone intent to discriminate. legitimate government to a interest. Pro- E.g. U.S. 97 S.Ct. 563. Gomil legislature vided that the explicated has its Lightfoot, lion v. U.S. S.Ct. objectives, and the action taken seems rea- (1960); Georgia, L.Ed.2d 110 Sims sonably designed them, to achieve legis- 523, 19 (1967). L.Ed.2d 634 lation is Implicitly, deemed valid. style instances, however, discriminatory of review legislature’s sanctions most choice of goals, as priorities. well as its sense of impact is a crucial but insufficient element evidentiary inquiry into intent. In a manner similar to that

of the Sim- outlined cases, ilarly, in most substantive departures respect above with to substantive devia- provide important tions, will window into the procedural irregularities may cast a but, purposes legislature, hidden pall over illegitimacy enact- alone, standing prove will not in- First, invidious grotesque proce- ment. extreme and tent. themselves, dural may, flaws involve an independent constitutional violation. For matter, practical As a in the ac- instant instance, if, deliberation, in the course of tion, highly the Texas state legislature, by special parlia- means of a establishing its priorities self-conscious rule, mentary prohibited representatives of redistricting process. Members participating districts informed, thoroughly constantly were debate, might this bizarre measure well well, legal reminded as standards per finding amount to a se of intentional under which scheme ulti- discrimination. mately adopted would be reviewed. In rec- ognition of the constitutional and statutory mention of this evidentiary The source in proscriptions against retrogression and dilu- Arlington Heights assuredly does not con- tion, participants various in the process set template magnitude. abnormalities of this subsidiary against forth criteria which the instead, commands, pro- It of the review is, final scheme would be measured. There by cedure which were certain measures tak- course, question validity initial of the en, to determine whether the interests vel non these standards. Beyond that which plaintiffs given in a case assert were inquiry, Arlington Heights indicates that were, denied law equal protection of the as application criteria, valid, of these if matter, procedural treated differently consistent; should be and deviations should than other interests or were at variance thoroughly be convincingly explained. with established methods. was apprised of this re- legislative 5. The record

quirement counsel, by legislative its in a study prepared specifically purpose for the legisla The Court has that stated “[t]he of informing legislators legal con- relevant, history tive ... may highly be straints their action. DX 4.4.11 at 203. especially contemporary where there are See also DX 4.4.4 at 670-71. To the extent statements members of the decisionmak that variations in application of sub- ing body, meetings, minutes of its or re stantive criteria affects the manner in ports.” S.Ct. at 565. The minority which interests were treated presented evidence in this case includes a Senate Bill No. departures such par- legislative documenting voluminous record suspicious. ticularly The legislature was process by which the Texas legis state keenly aware of importance minority passed lature reapportion considerations in process, the entire and of more, ment evidentiary bill. Without way particular might actions previously sources require described would affect those knowledge interests. This sup- thorough legislative search of the record ports strengthens the inference of in- course, noted, for evidence of intent. Of as tent be drawn from inconsisten- unlikely the official record is to contain cies application of established stan- explicit acknowledgement of invidious in dards. Buxton, Lodge tent. See F.2d 1358 (5th 1981); n.& 82 Cir. McMillan v. Escam Irregularities Procedural Fla., City, bia 1246-47 F.2d n. 15

As However, the Court (5th 1981). stated in Arlington Heights, “contempo Cir. “[d]epartures from procedural the normal rary statements of members of the decision- sequence also might afford making body” great evidence that reveal a deal about improper purposes are playing priorities, a role.” 429 their sense of their evaluation of U.S. at concerns, 97 S.Ct. at 564. competing and their commitment will sources which be reviewed to determine goals. The offi- to established substantive legislative is a valid cial record itself source legislative purpose been outlined at have as of “circumstantial” evidence intent length. some was also as stated Hence, Arlington Heights. under defined earlier, necessity for this “sensitive in- record consideration intent quiry” Arlington into commanded adoption of Bill No. 1 Senate must if, Heights only arises preliminary as a mat- searched, carefully an evidentiary source ter, plaintiffs have established independent value, body of and also as a actually challenged state action has a ra- of intent of var- circumstantial evidence discriminatory A cially impact. claim of suggested by Arlington Heights kinds ious plainly alleges vote dilution such a discrimi- White v. Regester. natory impact. terms, the Supreme broad Court has IV. types two separate entertained Plaintiffs’ Claims First, rights Court cases. has con plaintiff plaintiff-intervenors allegations right sidered that the to vote allege this action Bill that Senate No. absolutely by has been denied virtue of congressional reapportionment plan adopted action; is, state citizens legislature, intentionally the Texas State participate have not been allowed to at all against discriminates Black and Mexican- process. Examples in the electoral Specifically, American citizens. plaintiffs Light claims of this nature are Gomillion v. that impermissibly contend S.B. 1 dilutes foot, 339, 125, 364 U.S. 81 5 S.Ct. L.Ed.2d minorities, voting strength by “pack- the of (racial (1960) 110 gerrymander city of ing” them in certain districts prevented voting boundaries blacks from in and, consequently, fencing them ad- out of municipal elections); Harper v. Virgin and joining districts. Plaintiffs assert Elections, 663, ia Board of 383 U.S. 86 S.Ct. effects by legisla- these were intended the 1079, (1966)(proscribing 16 L.Ed.2d 169 the Therefore, they ture. claim Senate No. Bill taxes). poll use of 1 impermissible constitutes an racial gerry- Second, mander, allega- the Court has examined violation of the Fourteenth particular system Fifteenth of the tions that electoral Amendments United Constitution, Voting Rights by governmental States the Act maintained unit denies 1965, 1973, of 42 U.S.C. and the Civil diluting the to vote of right § means the Rights 1964, Act of franchise; 42 U.S.C. is, § of effectiveness that mi- right par- been norities have denied the Supreme plainly Court has held that ticipate processes self-government of cognizable claims of vote are dilution under on an basis with citizens. Ex- equal other both Fourteenth and Fifteenth Amend- voting rights this form of cause amples of Bolden, City ments. оf Mobile v. 446 U.S. Regester, of action are White v. 412 U.S. (1980). 100 S.Ct. L.Ed.2d 47 64 (1973), 93 37 L.Ed.2d 314 S.Ct. appears it of elements Rockefeller, v. 376 separate Wright U.S. 84 two constitutional claims are Id. I plain- (1964). identical. Because believe that In these S.Ct. L.Ed.2d have clearly cases, tiffs established their claim the claim is not that citizens ballot; under settled doctrines of constitutional access to the the com- denied law, pretermit I would decision of the unre- instead, that, plaint, of is because intention- question solved of whether Section of discrimination, system al the electoral has Voting Act, Rights pro- 42 U.S.C. § designed way been in a has the effect private right vides action. diluting weight minority votes. Organizations United Jewish v. See also previously, As observed pre- order to 144, 155, 161-62, 165-68, claims, Carey, 430 U.S. vail their plaintiffs estab- must 1007-08, 1009-11, lish Bill No. 1 intentionally Senate discrimi- White, (1977) J.). nates on the basis of evidentiary (Opinion race. The L.Ed.2d 229 then, dilution, allegation Beyond An vote is though this instructive certainly cognizable under the Constitution. None- statement, not definitive Supreme theless, the Court has not delineated with Court has provide not ventured to a text- specificity what elements must be estab- book formulation of the elements of a claim plaintiff claiming lished an electoral of vote dilution. system diluting minority has the effect of light of the substantial number of (Again, votes. it must emphasized be occasions on which the Court has dealt with of discriminatory demonstration effect dilution, claims may of vote be assumed prima is a facie element of a claim of racial that there has ample been opportunity gerrymandering. Proof of discriminatory pronouncement. such an elucidative purpose required element.) is an' additional fact that one has not been forthcoming may Regester White v. contains the most ex- fairly be taken to indicate not the Court’s plicit yet formulation offered the Su- but, rather, inability, unwillingness its to do case, preme plaintiffs Court. In that con- so. The corpus voting rights cases tended that multimember presents a hodgepodge analytical ap- districts maintained in certain counties in proaches that, bottom, suggests Texas violated the Constitution. Plaintiffs inquiry intensely practical prag- Regester obviously White were al- impression matic. This confirmed elections, lowed participate so their oft-quoted language at the conclusion of contention did not involve depriva- absolute right tion of Regester to vote. White v. approving Their claim was the “intensely that multimember districts “being were appraisal local design impact used invidiously to cancel out or minimize the Bexar multimember district in strength of groups.” racial light past present reality, politi- U.S. at 93 S.Ct. at 2339. There is 768-69, cal and otherwise.” 412 nothing Regester in White v. or any other S.Ct. 2340-41. Supreme suggest Court case to that such a Therefore, plaintiffs’ evaluation of claim brought opposition claims of vote dilution must involve a close Indeed, multimember districts. both study of the effect of 1 on ability S.B. Wright v. Rockefeller and United Jewish of minorities to participate in the electoral Organizations Carey v. challenges involved process equal on terms with others. Their to single-member congressional and state access to process of nominating and legislative districts, respectively. Accord: candidates, slating ability their to influence Kirksey Supervisors Board of of Hinds the selection of issues to placed be on County, (5th 554 F.2d 1977) (en 139 Cir. banc), debate, agenda public and cases cited therein and their continu- at. ing ability legislative to induce action that As prelude to a review of the factual responsive minority is to concernments are evidence relied on by the district court in examples of the indicia of legal and effec- case, the Court in Regester White v. participation tive political process. stated: is, course, There no right constitutional plaintiffs’ burden is produce to evi- representative race, to elect a of one’s nor dence to support findings politi- that the legislative representation in proportion processes cal leading to nomination and composition racial popu- election were not of the state equally open partici- pation Indeed, by the lation. group question drawing legislative dis- its —that tricts, members had less opportunity than did duty is under no other residents in partici- the district to political strength maximize the of minori- pate in political processes and to elect States, ties. See Beer v. United 425 U.S. legislators of their choice. 130, 8, 8, 136 n. 96 S.Ct. 1361 n. 47 629; Chavis, 412 L.Ed.2d Whitcomb v. U.S. 93 403 U.S. S.Ct. at 2339 (citing Chavis, 124, 149-50, 156-160, 1858, 1875-1877, Whitcomb v. 91 U.S. S.Ct. 363; (1971)). L.Ed.2d 363 City L.Ed.2d of Richmond v. United tricts, States, 358, 370-72, numbers 5 and 24. Based on 1980 95 S.Ct. 2303-04, plain 45 L.Ed.2d 245. Yet it is figures, population census 10;8% ability that the to elect minorities candi Black Hispanic. 18.3% Total choosing, of their dates own influence minority percentage popula- is 29.1%. The representa activities of their presently configured, tion of District tives, and to form coalitions which can ade Hispanic. 25.5% Black and 11.9% Total quately voice their concerns minority percentage is 37.4%. indispensible forum are cornerstones to the Bill No. 1 re-drew the line Senate be validity representative government. districts, thereby tween these two substan Supreme vigilant preservation Court’s tially altering composition the racial the integrity process of that has been a following districts. Under mi S.B. Constitution, hallmark of its defense of the nority percentages present: racial would be especially its application of the Four District 5 would be Black 5.1% and 7.0% teenth and Fifteenth Amendments Hispanic; minority percentage overall claims of vote help dilution. These issues would be 12.1%. District 24 would be 46.5% “equal define the content of access Hispanic, Black 17.3% for a total minor political process” provide guidance ity percentage (DX C-1). 1-App. 63.8%. the evaluation of claims of vote dilution. acutely practical, evaluation is and ul Plaintiff-intervenors Juanita et al. Craft timately must be tied to the rich blend of allege impermissible 1 includes an S.B. which, contemporary historical and factors gerrymander respect racial to these combination, constitute the dense web of districts, being two their claim that the political and reality. social packs minority bill citizens into one district

(the 24th) and thereby dilutes their strength. judicially Under the mandated V. congressional apportionment plan, mi- nority voters exert a formidable An Overview of the influence Claims Congressional representa- the election of Plaintiffs’ claims of gerrymander- racial from tives both District 5 and District 24. ing focus on several discrete areas of the Thus, Craft, et al. claim that 1 has course, state. Of to the extent that altera- diminishing intended effect of the influence tions in one inevitably district residents of Dallas have on shape contiguous districts, affect the no congressional representa- the election of specific claim of improper line-drawing may tives. quarantined scrutiny. Nonethe- less, the areas the state which are funda- mentally isolated, in controversy may be County. B. Houston and Harris

and the relating central issues to each iden- County county Harris is a metropolitan tified. City dominated of Houston. Under apportionment plan, parts the 1973 of Har-

A. Dallas County.3 and Dallas ris County separate are contained in four districts, 7, 8,18 congressional apportionment Under the numbers plan opera- tion metropolitan composition since 22. The racial of these districts area of split Dallas was into congressional two dis- is as follows: plan respect S.B. is modified the court’s issue of intent with respect County plan. Accordingly, to Dallas and South Texas. I will entire this dissent in modifications, intensely appraisal concur in these because I believe clude an localized of the passed by legislature respect design impact as the state of S.B. with . areas, County unconstitutional as it affects those infra not Dallas and South Texas See withstanding objection pp. (Dallas), (West Texas). the letter of issued 995-1003 1008-1014 Moreover, Attorney General. the effect of regions highly S.B. 1 in these relevant to the state, political parlance of the connotes comprehensible geographical area. existing congressional appor-

Under scheme, encompasses District tionment most of south Texas. It includes the two counties, populous Hidalgo most and Cam- 1970’s, During the decade of the Harris eron, part which are in the southern-most rapid population County experienced state, complete- eleven other counties growth, especially minority terms of parts others. counties ly, two These population. Consequently, had ex- heavy Hispanic contain concentrations isting districts become malapportioned 15, as under the residents. District defined district, of total population per terms scheme, His- is 77.3% required redrawn, that the lines to be but (It panic. negligible also includes a number population growth placing also mandated residents.) of Black one of the new three districts allotted to Texas somewhere in the Harris 1970’sthe Texas re- entire south metropolitan County complex. The new gion experienced population sizeable designated district in the area was as Num- growth. large majority of new resi- ber composition 25. The dis- five Hispanic. Accordingly, dents were in con- County tricts in Harris under 1 is: sidering place where to the three additional

congressional districts which allocated were census, to Texas on the basis of the 1980 legislature ultimately decided that one of placed the new districts should be some- (The variety where south Texas. broad suggestions placement will be care- studied, infra.) fully plan adopted creates two districts in Plaintiffs claim that configuration 15th, Texas: wholly South which is districts within Harris County contained in contained within the boundaries of the ex- S.B. 1 unconstitutionally dilutes 15th; 27th, isting and the a new strength district of minority voting, noting that which, S.B. 1 maintains District 18 under S.B. contains counties cur- as a minority district, and distributes the remaining rently mi- included in the 14th and 23rd Dis- nority population among the other districts tricts. Under S.B. District would be in a manner that dilutes their (with Hispanic 80.4% a negligible Black strength. The total minority population in population) and District 27 would be 52.9% Harris size, is of sufficient plaintiffs Hispanic and 3.0%Black. claim, to warrant the creation of an addi- Plaintiffs the overwhelmingly claim that tional minority district, as well as maintain- Hispanic composition of District consti- ing District 18 as a “safe” district. Rather impermissible packing tutes an of Mexican- pursue than course, plaintiffs assert, district, expense Americans into one at the the legislature adopted an apportionment Hispanic adjoining influence in districts. fragments communi- drawn, ty and does diminishes contain a bare its influence in electoral politics. majority Hispanic residents. contend, plaintiffs light large in of con- Hispanic centration of residents in C. South South Texas Texas, denying 1 has the effect of S.B. The area in the part southern of the state persons participate these full opportunity to which implicated is by plaintiffs’ claims process. packing in the electoral The of lacks the clear definition of provided locale minorities into District 15 dilutes the influ- by the two metropolitan previously areas Texas, Hispanics living ence of in Nonetheless, Texas”, South mentioned. “South in in and West Texas ties San Antonio ability to influence the diminishing their political process participate of processes part right in that the state. political equal Specifically, others. on terms with Antonio, County D. Bexar San lines were drawn in a they contend that the West Texas certain Antonio deprives manner which San of access to residents effective involving The these areas claims the boundaries estab- process; easily more reference to be identified frag- 21 and 23 Districts lished between congressional implicated. districts which community of inter- ments an identifiable wholly District 20 contained within Bexar est, of large as defined concentration metropolitan County, is focused on the Val- Hispanics living along the Rio Grande 21, pres- District area of San Antonio. segment A of ley from Presidio to Laredo. sub- ently configured, includes northern 21, District community placed Antonio, portions urban and the San 23. Plaintiffs assert portion part County. northern of Bexar Addition- separation ger- a racial that this constitutes area, ally, it west from this urban stretches political influ- rymander, which dilutes the large part to include a of West Texas. Dis- minority group. recognizable ence of a portions of trict 23 the southern includes Moreover, County. Bexar San Antonio and VI. it includes to the east of Bexar counties region County, stretching and the west the Process Overview of from Bexar to the lower Rio Grande Legislature began prepare The Texas Valley. 1980, process the reapportionment plan, As under the 1973 the three districts before data became availa- well the census following composition: have the racial time, on ble. At that the House Committee (“House Districts

Regions, Compacts, and Committee”) series of began holding a hear- allow ings throughout the state to citizens concerning express desires their district placement bounda- through hearings ries. These The lines of all three districts were continued 1981, April of changed. Spring Dis- DX. 89. In Though the boundaries of 1981. began trict 20 were a short extensive shifted distance House Committee area, terms of density population hearings which continued into Austin slightest 89, San Antonio renders even the shift May of 1981. DX. House Committee significant 10, 29, population Tr., in terms of total through April 1981. Sept. proportion. racial District 21 was not sub- Redistricting The on Senate Subcommittee altered, stantially in terms geo- Subcommittee) either (hereinafter began Senate graphical composition. area or racial in the Winter of hearings similar substantially boundaries of District 23 were April into DX. continued altered. demographics the racial through 20. virtually district remained identical. began formal ses- House Committee 1, makeup Under districts proposed for the on purpose sions is as follows: 11,1981. May on DX. plans redistricting 11,1981. Tr., May House Committee On debate, 14,1981, days two full

May after passed to the the House Committee floor redistricting plan. a proposed the House Tr., p. 67. May Dx. House as H.B. plan, That configuration denominated Plaintiffs claim that reading May and was respect passed to third Senate Bill No. 1 to these DX. 44. denying counties sent to the has the effect minori- Senate. 11, 1981, spective plans. the DX. 52 May

On Committee of the and 53. At that congressional Whole the Senate received time, Chairman, Dohlen, Rep. Tim Von apportionment devised by Kenneth set out the committee’s S.B. considera- Shephardson, aide to Esq., Peyton Sen. Tr., 53, July tion. DX. House Committee McKnight, and subcommittee staff. 27,1981, committee 2. The added several p. DX. 22. The Senate Subcommittеe con- bill, amendments to the and then Senate 16, plan May mark-up sidered the on held a bill, amended, passed the to the floor 26, 18, 23, 24, 25, May session on and DX. Id., House, p. 34. after the House. The and hearing then a full on Subcommittee considering committee S.B. 1 version of May 19. DX. 27. The Committee of the voted, 3, days, August for two on to return again Whole Senate met to consider the 55, Tr., DX. bill to committee. House apportionment May 20, bill on 1981. DX. 301981, August 215. The p. House Commit- 28. During meeting, both the House 6, tee met on 5 and but unable August was plan, 1400, plan, H.B. Senate S.B. to agree report on a bill to the House. 799, were laid out for consideration. DX. 54; 53, Tr., DX. House DX. Committee Au- 28, Tr., Senate, Committee of the Whole 6, gust again House 1981. The Committee 20,1981, May The p. 357. Committee of the 7, met August on and while the House stood 799, Whole amended and then S.B. voted ease, 53, reported finally out a bill. DX. Id., substitute p. S.B. 799 for H.B. 1400. Tr., 7, August House Committee 1981. The 107-108. The Committee of the Whole 8, 1981, day, began next August House 1400, then voted to send H.B. as substitut- ed, plan passed by deliberation on the Com- Senate, with the recommendation Id., passed. p. it be Early 108. The mittee. DX. in that Senate 56. promptly passed the bill. complete day, Speaker Clayton introduced a passed by bill substitute Commit- The House and versions of Senate H.B. Id., p. Clayton tee. 21-22. Debate on the dissimilar, especially were in their substitute, substitutes, and other continued Houston, Worth, treatment of Dallas-Fort Tr., II, Therefore, evening. and South until the late Vol. 601- p. Texas. a conference committee was to attempt Rep. previ- called to formu- 602. Bill Messer then called the late a compromise plan. The Conference question, ous on vote was taken days: Committee met for three May 30 and substitute, pending and on the sub- Clayton 31, 1, 30, 31, and June 1981. DX. and 32. Clayton stitute. passed The substitute However, the Conference Committee failed recessed, third The reading. House then agree, and the regular adjourned, session morning order in the early returned to automatically, on June 1. DX. 32. Because 9, procedural of August ploy which en- the House and Senate were unable to reach Clayton abled the to vote House on the congressional accord on a I, TR., reading. substitute on third Vol. plan during session, regular Governor p. 95. All members of the House Clements, Jr., William P. special called a boycotted August 9 session an at- 13, session of legislature, to begin July tempt quorum, to break the but a call was 1981, apportion- consider House, placed quorum on and a ment, and several other matters. The Sen- Tr., 9, House August obtained. DX. ate began meeting as the Committee on the 1981, p. 203-208. With a quorum bare 13, 1981, Whole July on DX. and passed present, passed Clayton the House sub- a bill on July 15. 36. DX. The met Senate Id., p. stitute. 209. 20, 1981, floor July session on ap- proved apportionment, S.B. on Clayton version of House S.B. July 21. DX. 37 and 38. S.B. was then substitute, somewhat varied from the Sen- sent to the House. Nonetheless, ate version. the Senate passed the House version of testimony House Committee heard debate, July 16, 21, on on relatively August little 1981. and convened in July 27, Tr., formal August p. session on to vote DX. pro- Senate within challenged passed The statute was VII. of the Court’s action in Nixon v. days five Background Historical statute, Pursuant Herndon. extent, judicial may notice To a certain qualifications Party adopted Democratic that, premise fundamental partici- be taken of the prohibited non-whites from of racial dis- past, policy in the an official pation party primary. in the operated crimination in Texas at all levels opinion flatly did not ban the The Court’s program life. This political of social and delegation power to the executive com- effectively op- denied blacks in Texas the mittee, nor did it hold that the exclusion- portunity participate any facet of life per se ary action of the committee educational, —economic, social, political, Rather, the decision unconstitutional. with personal equal finding terms whites. action taken rested —on course, separate catego- state nominally Of these the State Executive Committee was so, instance, action, actuality, in this violated experience ries of dovetail Texas, opinion the 14th Amendment. The re- relations in the instance race question served the whether the discrimi- pattern which formed an entire cultural natory proper action involved would be if worked, every point, segregate blacks party, through taken the entire a con- and remove them from the dominant insti- vention. generally, tutions of Texas life. See C. 45, Townsend, Woodward, Origins —Grovey

Vann New U.S. (1935) South, 79 L.Ed. 1292 (1972). S.Ct. 1877-1913 surprisingly, Party Not the Democratic present Of concern in the case is official Texas, Condon, response to Nixon v. against minorities in the discrimination adopted at a state Convention a resolu- political political realm of life. That in- membership tion which limited integrally participa- volvement is related to The Party Democratic to whites. Su- tion in other elements of social life is be- upheld preme Court resolution offi- yond question. even when challenge, on the against constitutional politi- politics cial discrimination in and the political ground that resolution of isolation, process cal legacy viewed action, party does not constitute state long overwhelming. and almost No one and so cannot violate the Fourteenth seriously catalog legal can contend that a Amendment. pertaining actions to discrimination in vot- holding respect The Court’s ing adequately captures reality the harsh political party aby nature of action taken Nonetheless, political racism in Texas. on deference accorded to two Tex- rested major involving roll-call of cases constitu- decisions, Love v. Wil- Supreme Court challenges tional to various devices em- cox, (1930), 119 Tex. 28 S.W.2d 515 ployed in Texas to fence blacks out of the Hill, 123 Tex. 74 S.W.2d and Bell v. political process provide a silhouette (1934). weight The combined that at least hints of the outlines of the that, under these two state decisions was patterns. historical Texas, the Constitution State Herndon, —Nixon v. 273 U.S. political parties voluntary associations (1926) 71 L.Ed. 759 liberty of formed the free will and Supreme The Court held unconstitutional 2 and 27 of the citizens. Article §§ prohibited a Texas statute which blacks grant to citizens the State Constitution primary. in the Democratic associations, liberty forming political Condon, —Nixon v. 52 S.Ct. pursuant grant to this and action taken (1932) 76 L.Ed. 984 categorized political freedom cannot be Supreme Accordingly, Court struck down Texas the state as state action. held that efforts of the permitted Supreme statute which the executive Court parties, when taken vote political party prescribe committee of a convention, by the full rather than membership qualifications. committee, Supreme summary Court’s affirma is immunized from executive explicitly holding based on its tion was Amend- challenge under the Fourteenth Harper Virginia v. Board of Elec State ment. tions, 663, 1079, 86 16 383 U.S. S.Ct. 649, Allwright, 321 v. 64 —Smith U.S. (1966), poll 169 which held taxes L.Ed.2d 757, (1944) L.Ed. 987 88 S.Ct. violative of the Fourteenth Amendment v. Grovey Supreme Court overruled The Suttles, Breedlove v. 302 U.S. (overruling Townsend, of and held that the exclusion 277, 205, (1937)). 82 L.Ed. 252 58 S.Ct. primary from participation non-whites in Texas since poll The tax had been used unconstitutional. elections was 1902, and, found, court had the district change positions of derives from the This intent of imposed originally beеn in United States v. Clas- holding Court’s F.Supp. at disenfranchising blacks. 252 sic, 313 299, 1031, 61 85 L.Ed. U.S. S.Ct. (1941), primary are 1368 elections an string Supreme of Court impressive integral proc- of the entire electoral part right of non-whites protecting decisions ess, affecting ability and action of so disheartening stands as a in Texas to vote participate primary citizens to elections craft of perseverance to the and testament definition, is, by state action. With that leaders, in their at- political the dominant established, premise of the action participa- minorities from tempt to exclude party excluding non-whites democratic process self-government. tion in of participation elections primary primaries poll White taxes notori- was of unquestionably equal pro- denial rac- ous and blatant manifestations of the tection. politics. Texas Yet ism that has infected of these tactics did not end proscription Adams, —Terry v. 345 73 S.Ct. voting. discrimination in tale of (1953). 97 L.Ed. 1152 light Supreme Court decisions indi- Supreme “pre-pri- Court held that a overt cating its refusal to countenance such mary” by private conducted association tactics, other, more subtle means disen- which excluded non-whites from member- were franchising disfavored minorities de- unconstitutional, ship was in that the rec- Though vised. certain of these tactics have ord clearly demonstrated that the victor superficial legitimacy, about them a cast pre-primary invariably in this secured the frequently federal have held them to courts nomination of Party the Democratic invidious intent to dis- motivated subsequently won the election. This case criminate on the basis race. involved the attempt last overt Supreme In the wake of the Court’s affir- state of Texas to maintain white-pri- Texas, mation of United States State v. mary system. legislature proposed, the Texas state States, —Texas v. United 384 U.S. 86 ratified, electorate constitutional (1966), L.Ed.2d 434 affirm- providing registra- amendment for annual Texas, United States v. State of ing tion of in the state. This enactment voters F.Supp. (W.D.Tex.1966) was violative challenged as of the Four- Supreme summarily Court affirmed teenth to the Amendment United States a lower court ruling invalidating use Smith, In Beare v. Constitution. poll precondition voting. tax as a aff’d sub nom. (S.D.Tex.1971), F.Supp. 1100 The lower court poll found that tax Briscoe, Beare v. (5th 498 F.2d 244 Cir. clause, violated process the due since it is 1974), upheld. challenge The court “in fact a restraint a charge on the explicitly traced the enactment the con- exercise of the right fundamental history stitutional of ra- amendment vote.” F.Supp. Texas, at 236. The court cial discrimination in and found that specifically did not vio- neutral, held that the tax amendment, though facially late either the Fourteenth or Fifteenth unconstitutionally deprived minorities of Amendments. participate right in the electoral 1975). pre-clearance provisions Since the equal basis with other citi- on an process August to Texas in were extended zens. lodged far Department Justice has Court, An In Robinson Commissioner's objections to af- governmental more actions 1974), (5th Cir. County, derson 505 F.2d any than fecting voting rights in Texas Fifth Appeals for the Circuit the Court August covered state. Between other ruling district court that a affirmed a 18,1981, September the State and adopted reapportionment by the Com received 91 various sub-divisions its Court, county divided missioner’s objection. P-1 A. Garcia Exh. letters precincts purposes county elec into Record, Congressional No. 76. October tions, impermissible racial constituted an 1981, p. period, this no H 6943. In same Specifically, court gerrymander. the found 50 objec- state had more than other covered particular the a concentra that division of tions, only thirty. and had more than three separate pre tion of black voters into three changes at H The election Id. 6941-6944. cancel out operated cincts to minimize or Department the of Justice objected to In voting strength the of those citizens. polling places, pro- of include the movement the finding, court’s affirming the district annexations, alteration of district posed Appeals of Court noted “[u]nfortunate lines, purge regis- voter and a state-wide of voting rights is not a ly, disrespect the of tration lists. in county government recent innovation in Texas.”, F.2d at and viewed the objection lodged by Department One the light history the facially neutral in of In special of Justice deserves note. mi attempts of overt and subtle to fence adopted the state a measure self-govern process norities out of the of which altered the standards under which ment. eligibility party primary of a for the State financing Eligi- election were determined.

These to two cases are mentioned a bility for state funds is conditioned on examples the use of neu- provide facially of percentage given party receiving certain voting techniques tral of discrimination governor the votes cast for governmental units in the of Texas. total state legis- state preceding on election. In the listing brought A full civil actions percentage requisite the Hispanics behalf of blacks and Texas lature raised (This fig- percent twenty percent. two to challenging deprive which various measures right was also used to determine candi- citizens of the to vote on the basis of ure ballot.) dissent, placed be on and dates would the beyond scope race the to change of this would have been necessary is not effects to establish the fundamen- visibility third-parties, by ex- point history tal that the reduce the of racial discrimi- ballots, voting cluding primary them from and also nation in in Texas has endured the Act, deprive parties funding of valuable Voting Rights tidewaters of the to those campaigns. The At- Supreme primary the series for election initial Court decisions objected change, torney to invalidating poll the white General the use taxes and Garcia, (See thereby nullity. the primaries. App. Brief of rendered enactment M. 3-4, Indeed, 3.) n. legacy extends in- Contemporaneous political events shed present, with a force is surprising. teresting possible on motivation light 1975, Congress In 1972 elec- special extended for the action. pre-clearance provisions Voting governor, Raza Party tion for La Unida —a Rights re- primarily party- Act of This decision Mexican-American 1965 Texas. —had hearings on the 6.3% the total votes approximately made basis extensive ceived history into discrimination old formula governor. cast for Under the determining eligibility for state financ- Hearings state. See Before for Senate elections, primary on La Raza Unida Judiciary, ing Committee Sub-Commit- Rights, qualified tee on for such funds. How- Congress, Constitutional 94th would have May ever, party 1st 29 and change, Session the 1975 under (April reimbursement, I every suspect would have received have reason to fund, had to of its and so would have out Despite continue to exist.” Id. at 9. resources, expense full of primary own repeated attempts his to combat these abus- campaigns. plain effect of the es, election former his Secretary Strake stated that change be proposed severely crip- would experience office “had where we cases ability of ple partici- La Raza Unida to delay felt there was an unwarranted pate equal parties on terms with other prоsecute reluctance on [violations] process. the electoral Given fundamen- part of some local officials.” Id. at 10. tally Hispanic party, nature of the and its testimony Secretary Former Strake’s Hispanic political role as a conduit for senti- highlights this occasion a familiar and crit- ment, would the alteration have worked problem right preservation ical hardship polit- severe on Mexican-American participate self-gover- of minorities ical activism. process scope nance. The enormous Despite Voting the extension of the monitoring of in Texas renders effective Texas, Rights requirement Act and the vastly practi- local elections difficult. As a laws, changes practices, pro- that all matter, government the federal cal cannot affecting voting cedures submitted throughout insure local elections Texas preclearance, a variety wide of election abu- an equitable are conducted in manner. ses continue to frustrate attempts of Consequently, large portion a of bur- to participate minorities in the democratic officials, upon den devolves state whose process. The basic reason for this continu- equal participation commitment to ing inequality Rights Voting is that open question. P-I seriously See M. Act, breadth, for all its simply cannot reach Garcia, Exh. Nos. 36A & 13. As an institu- “irregularities" certain in the in manner matter, then, tional the reluctance of state approved voting practices applied are provisions officials to enforce the of neutral a Vigilant application local level. state and regulations federal election allows Rights terms of Voting Act assure apply provisions local authorities to those in that election changes which constitute im- nature, discriminatory By a manner. their permissible gerrymandering, or re- undue “irregularities” defy ready these localized ability straints on the of minorities effec- quantification. history voting Yet the of franchise, tively to exercise the will not be replete in Texas discrimination precleared, implemented. and so will not be fraud, charges stuffing, of vote ballot ballot is, the act of in an election tampering, unpublicized poll- re-location of ultimately, acutely local enterprise, in- election, ing places on day alterations volving trip designated place, first registration requirements in and intimida- register, vote, and later to and the casting e.g., Hearings tion of Ex- voters. See on ballot, of a processed which is then by local Rights Voting April tension of Act in Though process officials. may be for- 1975; 1,May H.R.Rep. 29 and malized an approved code, election it is (Committee Report Voting No.97-227 on susceptible to abuse at the local level Rights Extension) (September Act variety ways, which may escape detec- 36A; 1981); P-I M. Garcia Exh. Nos. 13 & tion. Secretary The former of State for the Committee, Advisory Texas U. S. Commis- Texas, Strake, State of George expressed Rights. on A Par- Report sion Civil on the “voting irregularities” his concern over Mexican-Americans, ticipation Blacks the state which hampered ability and Females in the Political Institutions in minorities to participate in the electoral Texas, 1980). 1968-1978 (January, process. Garcia, P-I M. pp. Exh. No. attempts Hispanic regis- 7-31. At a on hearing election voters to abuses con- ducted by the Registration Southwest Voter ter vote meet with the additional obsta- Project, Education former Secretary language Though cle barriers. the Vot- Strake that, stated fully abuses, “I ing provides am Rights language aware Act now irregularities illegalities existed, language have assistance to insure that minori- persons elected to serve as 98.4% of the par- effectively excluded from ties are not white; process, 94% the ticipation county judges democratic were coun- white; ty were 96% the practical has had a limited commissioners statute white; of the members of mayors were 95% Inadequate Texas. resources effect white; part City were 94% of the mem- commitments Councils insufficient inequalities regulatory led severe local officials have bers of the influential state most provisions affect way Advisory election were Texas Com- bodies white. register and vote. attempts mittee, of Texans on Civil United States Commission recently Rights, The Federal Election Commission Rights, “Texas: The Civil State that, despite provisions found Later, Ten 1968-1978.” Years Rights attempt to reme- Voting Act which War, Texas not elect- Since the Civil has dy upon Spanish- the discrimination visited Hispanic United Sena- ed a black or States voters, speaking jobs registration offices representa- tor. Of routinely by persons are who are un- filled existing apportion- tives elected under able voters with Spanish-speaking to assist Hispan- plan, one is black and two ment rudimentary even information. the most has history ic. At no time in Texas there concluded that election ad- Commission congres- more than one black been Texas, whole, as a ministrators taken nor two delegation, sional more than His- adequately prepared, among were least panics. the state executive branch Since Act, to implement the states covered reorganized was under the 1876 Constitu- Voting bi-lingual provisions of the 1975 tion, or His- there has never been black Rights Additionally, the Act amendments. (One any panic elected to executive office. was least Commission found that the state State, Secretary of Hispanic appointed responsive Spanish-speaking needs 1968.) in March Commission, Bilin- voters. Federal Election Legislature, blacks and His- In the State Services, Ill, gual Report Vol. on the State under-represented are well. The panics Supreme ap- of The Court has the Art. 31 state consists of and Senators proved literacy the invalidation of tests representatives. Since State excluding lan which have the effect of state senator. there has not been a black guage process. minorities from the electoral currently Hispanic are four state There Morgan, Katzenbach v. House of present State Senators. In 1717, 16 (1966). L.Ed.2d 828 repre- are 13 black Representatives, there which registration procedures, Texas state (8.7%) Hispanic represent- and 18 sentatives excluding language have the of mi effect (12%). figures Each of these consti- atives norities, of hurdle by virtue the formidable representation low disproportionately tutes provide bilingual created the failure to (DX App. groups. of these two ethnic assistance, frequently place, remain in be C-5.) cause are not reviewed under Section 5 Voting Rights practical of The Act. to the variety contribute A of factors of far-ranging effect is disenfranchisement political in Texas. results of races skewed language minorities. traditionally partici- and Hispanics Blacks lower rate than do pate in elections empirical light difficulty In of registration turnout and Anglos. Both practices of these insidious demonstrations two lower for these ethnic rates tend to be effects, and more manner of effective political of life is central fact groups. This establishing of minori- effective exclusion circles, knowledge in common proc- ties the electoral participation in at all levels. political debate informs election results. survey ess is a of actual minority dis- a “safe” attempting to assure now, By disheartening of under- litany election, drawing any those given trict for representation Hispanics in of blacks familiar, typically use 65% the district lines is positions in Texas elected figure, recog- benchmark population as a need detail. A brief repeated of low relatively propensity nition of the survey will suffice. From 1968 See, register e.g., activity involving expendi- and vote. minorities to state 17; 21; 37.3, p. p. Deposition DX DX of bilingual pro- ture on education revealed a 55; Sheperdson, p. Dep. part K. of W. antipathy legisla- Gov. found on the of state 43; Clements, funding of p. programs Veto Proclamation Gov. tors to these at a level Clements, Garcia, Exh. 4.p. might P-I M. 34 at assure their effectiveness. Journal, May Studies conducted Dr. Frank D. Bean for House ff. purpose Attorney of submission The district court in Graves v. Barnes pre-clearance General Congres- (Graves I), (W.D.Tex.1972) F.Supp. Redistricting sional bill reached the follow- (three-judge court), found close connec- ing conclusions: deprivations tion between visited on His- 1. greater percentage of His- education, panics matters such as area, panics or Blacks in a given their politics: alienation from state percentage the popu- lower the politi- There can be no doubt that lack registered lation to vote and the low- participation by cal Texas Chícanos af- registered er percentage voters incompatibility fected a cultural that turned out for the 1980 Presiden- has been a deficient fostered educa- tial Just opposite election. occurs system. tional in the case of percentage F.Supp. at 731. Whites and in an Others area. earlier, Supreme As stated Court’s 2. The percentage Blacks in an area decision Brown v. Board of Education negatively more related premised on the inherent connection percentage turn-out area than quality between and effective education percentage is the Hispanics. participation political process. Dep in the relationships 3. The involving turn-out inevitably rivation in the former area en percentage stronger than those ennui, ignorance, apathy tails in the involving registration percentage. latter. system public The state school C-4, DX App. p. No. financing money allows the amount of spent given locality depend on the Hispan- disinclination blacks and district, relative wealth of that and the ics participate political processes desire of local citizens to tax themselves to part which affect them is of an entire cul- matter, pay for a practical education. As pattern tural reinforces these system disparities in per- creates wide groups a sense of alienation. The state expenditure. pupil Supreme Court has legislature has been notoriously unrespon- upheld the constitutionality of such a fi sive to the of minority concerns communi- scheme, nancing Independent San Antonio Representative Garcia, ties. plain- Matt v. Rodriguez, School District action, in tiff-intervenor this identified ma- 16, (1973), opin 36 L.Ed.2d in an jor areas of state policy dramatically ion which deferred to the legislature’s state affect and deeply concern Texas minorities: policy preference for autonomy local in reapportionment, bilingual education, wel- school appro finance. This deference was fare, education, prison and reform. TR. terms, priate analytical in because the 27-28. Judicial notice be taken of the suspect Court found that wealth was not a fact that these areas have been subject classification, is and education not of litigation, extensive resulting in court right. fundamental This decision notwith orders preserving guarantees standing, Supreme has on Court other Constitution vis-á-vis the intransigence occasions recognized the direct connection insensitivity legislature. of the state See political between participa education and generally, Commission, Texas Advisory Education, supra; tion. Brown v. Board United States Commission on Rights, Civil Regester, supra. White v. Status of Rights Civil in Texas. Vol. I & 162-180, III (January 1980), esp. pp. Vol I. Other support socio-economic indicia Ill, 41-111, pp. Vol. 142-179. Recent that minorities in Texas are sub- conclusion services because of their ina- quate medical provision ject discrimination services, policies care, and that these essential for such and also the lack bility pay from the work their alienation geo- to reinforce adequate in the relevant services public political process. Private and em- areas. The connection between ab- graphic in Texas is well- ployment discrimination ject as those described poverty levels such See, e.g., legal opinions. in documented health, above, housing, inferior Co., Mfg. Fisher v. Procter & Gamble is well documented. Id. medical care (5th 1980); F.2d Cir. v. Western Sabala Texas, then, staggering is cor- There Inc., 1975); (5th Gillette 516 F.2d 1251 Cir. race and inferior educa- relation between I.S.D., Garcia v. Victoria 17 E.P.D. tion, underemployment, unemployment and (S.D.Tex.1978). health, housing, poverty, inadequate poor Advisory Committee to Texas medical care. For those and insufficient Rights United Civil Commission States perceive trapped themselves within who underrepresentation found extreme deprivation, complex of the orthodox Hispanics public blacks at all levels of process may hopelessly often seem employment employ- Texas. Whether remote, cumbersome, and depressingly irre- ment opportunity measured numbers century neglect, trievably A biased. or, persons employed, tellingly, more benign, malign, frequently sometimes has salary persons actually levels those em- apathy, created a climate alienation and ployed, of the Committee the conclusion deep-seated resentment mixed with Hispanics was blacks and are not clear: many communities in Tex- equal employed public sector regis- low light reality, In of this as. voter Anglos. basis “The of Civil State Voter surprising. reg- tration rates are Later, 1968-1978”, Rights, pp. Ten Years patterns, in which blacks and His- istration also, Rights 5-16. of Civil See “Status register and vote at rates substan- panics Texas, III.”, supra, pp. Vol. 37-159. Anglos, were established tially lower than employment obviously Discrimination in legal regime time of official at a when leads to lower income levels for individuals wholly racial discrimination in and families victimized that discrimina- as the court in Graves intact. And census, tion. to the 37.9% According noted, I) (Graves Barnes of all Mexican-American families in South some of those laws have fact below level. poverty Texas had incomes [t]he counties, past years percentage changed been within the few was in certain 60%. His- excess of The mean income of or does not answer or offset months panic families is 56.7% of the mean income firm. voting patterns fact remain Anglo Hispanic in- per capita families. Because were denied access Anglo come in- per capita 40% through years of dis- political processes Data, 1970. come. United States Census crimination, do the Mexican-Americans also, Lyndon See B. Johnson School of Pub- register not now and vote overwhelm- Affairs, lic Health “The of Mexican-Ameri- ing numbers. 7-15; Texas”, pp. cans in Office of South Regester, White v. at 733. F.Supp. See Governor, “Summary the Demo- of Selected 768-69, 2340-41. 93 S.Ct. at 412 U.S. at graphic Characteristics from Census Data- finding, Voting the time of this Since the (August, 1972), P-I Fourth Count” M. Gar- to applied been Texas. Fed- Rights Act has cia, 24, passim. Additionally, pov- Exh. No. has had monitoring changes of eral election erty prevent unemployment and minorities effect, variety of salutary and a wide a obtaining housing, adequate and suffi- urged political figures strongly have Texas deprivations cient nutrition. These are se- during be extended provisions themselves, vere in and also lead to inferior subject. on the debates Yet, congressional recent relatively higher health. this despite Report on (Committee 97-227 care, H.R.Rep. level of for health minorities See demand Extension) (September Act Voting Rights in Texas are to secure ade- typically unable Í5, safeguards 1981). po- these not- reveal little about the actual nature of withstanding, minority representation interests continue power. litical and Most ob- largely ignored by legislature, be the state viously, registration and extent Hispanics continue to be and blacks and figures population fig- turn-out differ from by discrimination in fact victimized ures, percentages of strength distort the range An broad of socio-economic matters. other minority voting given in a area. In deprivation additional ten of ex- years and respects well, figures as these hide as much participation in has society clusion from full cohesiveness political as reveal. The solidify reality served to of alienation minorities; degree minority of to which by addressed the court in Graves v. Barnes. and communities have established durable respected conveying political of their means matter, In as summary, an historical positions persons ability of power; Hispanics subjected blacks have been and blacks form Hispanics and solid coalitions politics official discrimination in and in oth- successfully bridge which of the cultural Though er forms social life. of a number which, occasion, these legal political formal barriers have been re- breaches on moved, order, typically separate groups a result of court practical those two —these reality contemporary of life Texas political facts immensely of life have an for stamp minorities still bears the of this significant bearing nature of on real legacy past of discrimination. The and minority representation. otherwise, present reality, political and “Retrogression Study” submitted Hispanics life in Texas for blacks and is Department the State to the of Justice for education, by poor marked housing, inferior purposes of review S.B. 1 under § poverty, unemployment, inadequate social Voting Rights exclusively Act relies on services, In isolation. terms of minority statistical summaries of the com registration voting, and in terms position of the various districts. The charts on legislative process, influence minori- which “Study” provide compari form the suffered, ties in Texas have since the Civil son between the number districts under War, from an acute denial effective ac- existing apportionment plan and the political process. cess to the The insensitiv- number under given S.B. have a ity of the state to the concerns percentage Hispanic popula and black Hispanics blacks and have left these Additionally, tion. the charts show for dis

groups in, looking the outside through a population, tricts with a stated minority window clouded racism and its corollar- many represented how were in 1980-81 ies: powerlessness, destitution, segregation, person group. of that DX No. estrangement, despair. against It matter, App. preliminary C-2. As a deter background that a reap- “retrogression” mination the issue of portionment plan judged. must be Department reserved of Justice. The standards under which that determina VIII. province tion is made are Senate Bill No. 1—Effect and Department. States, Beer v. United Legislative Motivation 1357, 1363, 47 96 S.Ct. L.Ed.2d plaintiffs’ (1976). However, overview of the claims it seems clear presented IV, in Section fragmentation, dilution, effect the issues of. on the composition racial of the various packing necessarily are not co-extensive dispute districts in was set retrogression. forth. These Certainly, the retro percentages ethnic provide gression little more study than submitted the State starting point for the analysis Department of Justice affords insuffi impact of a redistricting ability on the cient information to determine the constitu of minorities effectively participate to in tionality of 1 under the standards the process. electoral variety For a by of rea- which Supreme have been set forth the sons, bare statistics of composition racial Ultimately, judg- Court. the constitutional

995 constraints, but, addition- person, one-vote highly localized hinges analysis ment ally, minority representa- with to inter- relation involving communities of information tion. est, polarized voting, and political strength, available minorities quality of access

the changes Demographic in Districts and given region. in a 1970’sdid not during the decade of the substantially composition the racial alter County A. Dallas Census data for 1980 the two districts. existing Districts 5 and 24 had a show that metropolitan county a County is Dallas in of black marginal percentage decrease City of Dallas. Census dominated the in voters, a increase the slightly larger and popu- figures for 1980 reveal that the total DX Hispanic voters. No. percentage 1,556,549. County Of lation of Dallas is this Therefore, a concern for App. neither C—1. 154,560 total, 287,613 (18.5%) are black nor a desire elimi- avoiding retrogression (9.9%). Congres- D. 5. DX 40 Hispanic dilution existing fragmentation nate wholly con- sional Districts 5 and 24 are congressional bound- would dictate that of Dallas tained within the boundaries altered, County aries in when Dallas County. Additionally, portions of districts analyzed purely on ba- those issues are county. As noted 3 and 6 fall within concerning sis data the racial of census plaintiffs V, in this action chal- in section composition of those districts. lenge only configuration Districts proposed 1973 and the represented and 24. Under the presently District 5 is impact Mattox, apportionment minority plans, Congressman James white Demo- is, crat; Frost, Congressman on elections in the other two districts Martin white be, Democrat, negligible. Accordingly, would is representative the elected discussion, analysis of the ef- ensuing presently from District 24. Mattox serv- minority representation ing Congress, his third term Frost his fect S.B. on The evidence preponderance second. County Dallas will be confined Districts 5 at trial was that both Mattox and 24. adduced responsive to ‍​​​‌​‌‌‌​​​​‌‌​​‌​​​​​‌‌​‌‌‌​​​‌​‌‌‌​​​​‌‌​​‌​‌‌‍and Frost are mi- considered congressional 234; (Tr. 35.) DX nority concernments. at plan, County, as it affects Dallas is itself Indeed, knowledgeable observers of Dallas product litigation. of constitutional politics testified a candidate would Weiser, White v. 412 U.S. 93 S.Ct. difficulty winning an election in grave have (1973). line cur- 37 L.Ed.2d support or 24 without the either District 5 rently separates 24 was Districts type minority political groups. adopted by upon remand district court essentially power. veto political influence Supreme opinion Court. In the re- minority presence is the neither district court, manding the case to the district strength groups of sufficient that ethnic Supreme Court directed the lower court to County Dallas can elect a member Con- plan ultimately adopted insure was support gress choosing, of their without respects. constitutional in all 412 U.S. at political groups. from other at 797, 93 at Since White v. Weis- time, any hoping the same candidate day er decided White was the same prevail congressional in a race must be sen- Regester, and immediately follows that case needs, gain sup- sitive to Reports, official United States constituency. Id. The record port of that inference is clear that the constitutional conclusively establishes that the black com- requirements Regester of White v. were to County, congres- munity in Dallas both guide adopting the district court in con- districts, has been able exert effec- sional gressional plan upon reapportionment re- tive political influence. mand. least plain: The conclusion is lever- adopted, the time it The demonstration was is, voters Dallas apportionment plan age in Dallas exerted black course, showing constitutional, not respect equivalent to one- is, voting racially polarized plainly legis- The record reveals the bloc racial —that fact, in Dallas In County. minority for a sympathy lative creation of —exists that, convincingly election returns establish quite district in Dallas derived from two races, Congressional respect at least with First, separate of sources influence. the polarization no such exists. In Con- Representation, for a Minority Coalition a gressman Republi- Frost defeated Black committee, urged the Dallas-based opponent margin, can a substantial legislature to district in Dallas create a so, doing garnered overwhelming in the See, predominately which would be black. support community. of the black 106ff; 86; e.g., 24.3, pp. DX DX. TR. at On the basis of these various measure- Second, (Sen. Wilson). 475-76 the Gover- responsiveness represent- of elected ments— Texas, nor of the William P. Honorable atives, capacity minority of voters to form Clements, Jr., made clear the effective coalitions and exert in- substantial that he would any veto which did process, fluence on the electoral and the minority include the “safe Dal- district” for polarized voting existing absence of —the Clements, Dep. pp. las. of Wm. Gov. congressional appear districts to be consti- 11-12; 3-8; (Sen. Dep., Exhs. to atTr. tutional, and, indeed, respects, in some ex- Mauzy). emplary. Nonetheless, the between line drastically districts 5 and 24 was impetus altered. These two sources for a Congressional representation in Dallas minority together district in flow Dallas County was scrutiny isolated for intense debate, legislative the open record. In each reapportionment process, striking ain is referred to as forceful consideration singular It manner. became the cen- resolving question of difficult Dallas major tral of of focus some in the actors Certainly, apportionment. a coherent artic- special drama. Much about this treatment minority given ulation support ap- for of profound interest, great and a deal portionment plan which would enhance highly probative it is of the intent of the ability their participate the electoral persons designed Hence, who S.B. 1. process guidance is a valid source for issue merits the closest attention. legislature. Yet a number of factors The line between Districts 5 and 24 fol- emerge legislative from the record which lows the boundary” Trinity “historic the-clarity minority support dissolve Dallas, River. That through river runs minority the creation of district in Dallas. actually splits the concentrated black resi- plain These were factors made before the dential community in South Dallas into legislature, and hence its reliance on the roughly stated, equal halves. As this divid- expression of support advanced blacks in ing line was drawn a federal court act- closely. Dallas must be studied On ing within the constraints the Constitu- hand, other a threatened veto Gover- tion, and resulting split minority any plan nor of that did not accord with his community is presumptively thus constitu- particular indepen- sympathies is little tional. legislative dent weight as a valid considera- However, course tion. the extent To the Governor’s debate over reapportionment, preferences are on a definitive le- founded sentiment in support creating a “safe or, gal principle, alternatively, premises minority district” in Dallas devel- interpretation popular sympathy, on an oped among various the legisla- members of expressions then his individual deserve ture, purportedly supported by popular weight. some source of will of community Dallas. lies the role influence the Governor Untangling the prefer- several roots of this time, might playing ence at such a understanding essential to an opinion. manner public influential conduit of in which the debate over Dallas County proceeded, instance, and in the record reflects that determining the motivation of support arose in vacu- largely ultimate resolution. Governor’s might willing suppose be to scope. al One um, with the from close alliance detached petition proposition stands for the Dallas Addition- that the preferences of residents. of voters in Dallas think that evidentiary factors that a number ally, other coincidental congressional lines in Dallas should be purity to the of the Governor’s the serve dilute sum, minority in a fashion that would enhance mi- advocacy interests. In drawn of in- the Alterna- nority influences influence on election. confused motivations and persons it is legislative respect tively, formed the decision with conceivable petition thought that the elec- apportionment. signing to Dallas Congress of a member tion black of in step be a the de- salutary Dallas would minority support for 1. The coherence of political presence in velopment of a black S.B. 1. Beyond these tentative and essen- Dallas. reasons, purported For a of number conclusions, little sub- tially irrelevant of safe support of minorities in Dallas for a petitions. may be deduced from stance minority will not congressional district Second, validity peti- if the is even analysis. ques- close It withstand minority expression support tion as an a substantial number of minori- tioned that conceded, in is the idea of for a district Dallas ty supported Dallas residents seriously Dallas, support quali- the nature of that creating congressional district in political and coali- Allowing groups fied. legislator might from which a black be peti- influence means of this tons to exert elected. And it is doubt that beyond assuring may way one broad conveyed desire to members of the tions be was participation legislative proce- in a legislature. plainly public Yet the record reveals affects na- fundamentally dure which expression minority support this life, sys- it is not a countervailing ture of democratic but was with sentiments blended way. nor In the elabo- contemporaneously. fool-proof tematic articulated process rately self-conscious First, rely in action heav- defendants through articulating priorities its in went in ily petition on a to the legislature submitted establishing procedures, redistricting and in on the of the Coaliton for Mi- letter-head a system- was to there never a cоmmitment petition is nority Representation. The polling popular sentiment. Of atic signed by persons professing number of course, the House con- both the Senate and who, eligible in County, voters Dallas hearings” ducted extensive “out-reach express signatures, virtue of their their the state are allowed to which voters across “support redistricting for the . .. Coaliton’s preferences express their testify, and for plans Congress.” the United DX States respect redistricting effort. with petition nothing 86. The face of reveals of these hear- Transcripts and summaries persons’ more about the nature of these vast ings prepared. were Yet this amount support. guid- As a source of substantive oddity as of “raw data” stands a sort ance, expression intelligible and as an of an ignored source process, largely pri- something position, petition mary information about local concerns. Initially, of wholly petition- short reliable. (Transcripts DX of debates See Nos. 52-56 ing proc- is itself a fractured and uncertain session). closing special days ess. no what There is record whatever of petition validity signing relying individuals were The issue of on the advocated, regarding being presented, told what people” was “wishes of the was was sign- context, nor there evidence slightly as what the altered in Graves v. Barnes, (W.D.Tex.1972.) subjectively F.Supp. ers have believed case, supporting. exceeding- attempted justify were as In that state a matter Harris ly complicated disparate it strains its treatment of apportionment, races, credulity suppose persons popu- reference spon- that the state soring system petition explained support the issue lar established fashion which so much as hinted at actu- elections. The court said: its argues following expression its decision on an popular

The State people” Indeed, when it the “wishes dealt sympathy. in most other areas of metropolitan argu- its areas. The controversy, substantial deci- ultimate ring simply ment does not true .... highly expression sion was based on rarified [Tjhere evidence the record is no example, of local sentiment. For a crucial redistricting board had it any the before concerning decision 23 re- Districts and people” coherent “wishes of the .... It heavily lied on of a state testimony the local to this that a appears Court if State representative, the desire of the incumbent the of people” elects to use “wishes the to district, military to a base his retain in metropolitan differently treat areas by a of passed City Resolution the Council unequally, obliga- then it is under some county the seat one the af- of of counties thorough job tion to do more a of investi- way are fected. no these considerations gating people” the real “wishes of the Indeed, legal sufficiency compelling. their rationale, any of .... And course in- length por- will at in be discussed another cluding opinion polls, would have to be They tion of dissent. mentioned state, applied areas the equally to all of only by here of way justifi- contrast the for ignored not followed one and for oth- offered the for cations state its decision ers. respect with to Dallas. incon- This drastic stated, F.Supp. peti- at 721-22. As the sistency seriously sincerity undermines the tion the Minority submitted Coalition for with which defend ac- the defendants their Representation a hardly constitutes coher- tion as an of senti- honest assessment local expression ent of the “wishes people” Inconsistency application ment. in the Certainly legislature Dallas. is enti- substantive criteria is a separate evidentia- tled decide that local will play sentiment ry suggested by Arlington Heights, factor a role in apportion the decision of how to proc- entire at supra see 979-980. course, representation given in a area. Of evaluating ess of substantive concerns is plain popular it is no such that reference to contradiction, by inconsistency marked can supersede will the basic constitutional present which will be dissected later. For reapportionment. constraints on Id. If all purposes, it is note sufficient mandatory implicated relevant factors in protest of relying the state that it was on redistricting process were to balance in it people” the “wishes of the has about a a manner that left in the decision some strong disingenuity. aura of limbo, form of perhaps preferences local Fourth, assuming petition might legitimate be a sub- determinative factor. legislature accurately once the mitted as- decides that the Coalition did its guided will, decision will be by popular feelings sess the black political Dallas expressed the principle in Graves Barnes constituency, clearly record reveals beyond public opinion contravention: support minority for a district was con- must be tapped system- a manner that is tingent. Blacks generally in Dallas were atic, and opinion reflects more aware degree influence had thoroughly petition signed by than does a a elections in both District 5 group county residents under unknown and 24. The evidence established that suspect conditions. community necessary compo- black was a political constituency, nent of a

Third, successful principle consistency ex- purposes for of election from 5 and Districts pressed corollary Graves v. Barnes is a no rep- 24. DX 35.3. At time did credible principle thoroughness. legis- If the community sup- resentatives of the black rely lature chooses to “wishes of the port congressional apportionment People” respect redistricting Dal- las, wholly apply must which would eliminate that commu- that decision other areas, or convincing justification nity’s one for sake offer for influence in district Repre- the failure do of creating so. The record reveals no a safe black district. other locality Ragsdale, highly support- in which the rested visible sentative considering apportionment in Dal- Dallas, Yet in charac- minority district for er of “extreme”, minority the ultimate result County, repre- terized support las unac- personally he found the result plans disregard- sentatives for certain 29, 1981). (July p. ceptable. DX ed, inter- in favor of assertions of persons whose connections ests made presence in Dis- Under the black S.B. (Sen. Mau- negligible. County trict 5 TR. at in Dallas with ethnic communities support for this zy). There was no black were, best, tenuous. alternative Several Indeed, expres- result. the most accurate plans were apportioning Dallas concerning 1 is sion black sentiment Special during the Ses- seriously debated legislators of black toward the attitude plans particular Two of these sion. legislators bill. The black took positions among minority support gained widespread stages the final of debate on S.B. 1 were believed that legislators, apparently who along the not based on an lines abstraction ability favorably affected plans district, minority of creation of a safe with in the participate minorities to questions all the attendant unanswered as Bill No. also known process. Senate Instead, upon vague concept. such a black was, while, McKnight-Mauzy plan, for a the legislators days special final of the in the leading in the and the on bill Senate the with an actual bill session were confronted a vehicle for localized which served as which was minority which created a district co-spon- who Mauzy, amendments. Sen. district, and, at way no “safe" the same in state from the is a senator sored S.B. time, in black influence the other rendered area, for reputation respon- whose nullity. exception, one all Dallas district With bill. representatives against voted the widespread. black is minority to concerns siveness Moreover, (Sen. many Mauzy). TR. at 281 to 3 was an Mauzy’s contribution S.B. Sen. great clarity, the spoke, of them with about Dal- proposal the division of alternative to apparent made deficiencies of S.B. and Specifically, 3 would have County. las S.B. of the bill on the the the effect a way in such as Dallas apportioned In to the community. accept black order in both Dis- minority increase influence in passed state’s assertion that 1 was S.B. minority the 5 and 24. tricts Under S.B. homage expressed will of the minori- the in- District would have population of Dallas, be in more faith must ty community 31.9%; composi- creased from 29.2% highly suspect petition sub- placed changed from 24 would have tion of District placed is in the mitted the Coalition than minority. 45.7% minority to 37.4% representatives. statements of elected black credibility is at odds flatly allocation an amend- John Wilson submitted Sen. legislative procedure, with the normal which, only minor with ment starkly is inconsistent with manner trial, 1. Sen. Wil- changes, At became S.B. in- which other districts were treated. For his explanations for dissat- son offered two stance, of Harris First, 3. it divided his with S.B. isfaction County, legislature accepted, without County among county home — —Williamson Craig Washington’s question, Rep. second- district, was, to three Mickey Le- Congressman hand assertions Wilson, at “totally unacceptable.” Tr. Sen. personal preference land’s in terms of the not Second, did believe 476. Sen. Wilson 18; boundaries of Rep. District Susan provided for adequately minori- that S.B. representations McBee’s of the desires County. Tr. at ty participation Dallas constituency respect her local with to Dis- Wilson, LaGrange, a White from 477. Sen. were as only accepted tricts and 23 Mauzy in a admitted at trial that Sen. was (despite valid considerable evidence to position better he to evaluate much than contrary), but her declara- unsubstantiated as focus County politics, as well Dallas tions were elevated above other concern- community. minority in that sentiment were, ments which of is- hierarchy Nonetheless, Wilson drasti- Tr. at 517. Sen. legislature, sues of a established to Dallas respect 3 with cally more fundamental nature. altered S.B. County. did percentages, His amendment not win the than districts more support minority representatives. Re- minority represent- 65% have elected white gardless, remained undaunted he in his is apparent atives. Yet it the record of championing minority zealous interests legislature thought this case that light vigorous in Dallas. opposi- of the figure to be reliable. expressed by virtually tion S.B. 1 all Under Bill No. Senate District has minority representatives, con- Sen. Wilson’s minority population percentage combined tinued merely assertion that he was enact- 63.8%. Blacks 46.5% of resi- constitute ing the the minority community will of dents, Thus, Hispanics popula- 17.3%. Dallas is hubristic either or error. goal tion close the established 65%. stages debate, In the latter another However, there no evidence in the record plan Smith-Ragsdale plan —the —was is, sense, in any meaningful that District 24 presented for consideration. It had (a Lucy a “safe” district. Ms. Patterson representatives, support experience Black with extensive in Dallas compromise preserve least measure to that, County politics) testified trial in her dominantly some limited influence in the opinion, a could elected black citizen seriously white district. The was de- 24. 445. Tr. at On that thin bated as an alternative to S.B. testimony, thread of state to es- seeks objection substantial raised to the legisla- tablish as a matter of fact that pragmatic prom- Clements had —Governor creating ture was successful in a safe mi- ised to representation, veto it. On that nority However, Ms. has district. Patterson also, was Dep. defeated. Tr. 280. See expressed Congress, ambitions to serve in Clements, of Gov. at 15-19. The considera- her admittedly self-serving statement tions which at were of bottom Governor will not that weight. bear Clements’ support minority a in district Dallas will be discussed hereafter. For Several factors contribute the conclu- present purposes, it is sufficient to note that, composition, sion despite its racial Dis- episode extent to which this qualifies the guarantee trict does not the election of a expressions connection between the First, minority representation. even minority Dallas community the district though the lines of the district were sub- lines drawn by S.B. 1. altered, stantially District 24 still has a

Fifth, incumbent, popular even Martin qualifications if the Honorable stated mentioned, petition above were absent already Rep. and the were Frost. As Frost accepted a coherent a expression challenged Republi- of local was in 1980 black by sentiment, can, legitimately leg Smothers, relied on Clay a prevailed by con- Dallas, drawing islature in district lines in margin, siderable 39%. Frost Rep. 61% to Senate Bill does goal No. not achieve the support has earned the broad of his constit- minority of a “safe The district.” common uency office, in two in and is his terms ly accepted benchmark for a dis minority generally as responsive minority viewed trict is minority population. 65% fig The concernments. Tr. at DX 35. ure is used as sort of triggering a device Second, Rep. as the result of Frost’s race Department of Justice in its review indicates, against voting in Dallas Smothers procedures under Section Five of the Vot County clearly polarized racial along Rights Act, ing e.g., Jewish Organi United overwhelming weight evi- lines. 144, 152, v. Carey, zations 430 U.S. 97 S.Ct. dence at trial racial adduced indicated that 51 L.Ed.2d and was common are in no manner considerations determina- ly used members of the in patterns of voting tive in elections in Dal- 21; p. 37.3, debate. DX at DX at (Sen. Mauzy); Tr. at 35.5. las. 234—37 DX Dep. of K. Shepardson, course, at 55. Of is nothing analyzing there in the racial fig important talismanic about More this representatives composition ure. Minority been of District 24 consideration have elected from minority premise districts with smaller involved in characteriza- district, minority Hispanic even if black and as a district. tion of District 24 drawing group defendants to- picture, lumped this No. together. voters were DX Hispanic gether population the black App. C-6. population “minority” category, into one matter, practical legis- Finally, as a black demonstrating a in-

thereby fundamental support they lators did not because of minori- sensitivity practical reality win re- did not that a black could believe between blacks and ty politics. Coalitions Representative election from District Hispanics certainly part political are in judg- at his Garcia testified trial politi- landscape such of Texas. ment, 24th is district “the not winnable merely bonding place not take cal does judg- Tr. minority.” for a at 168-69. This identity. color or ethnic virtue skin ment on consideration the rela- is based Rather, provoked mergers nature tively registration rates minorities low by commonality overlap of interest in Dallas, especially Hisрanics, in and the dif- specific political concrete situations. A his- forming political ficulty of effective coali- tory political of successful coalitions climate, city. tions in particular locality, create a in will cooperation. foster further Eth- Therefore, the actual result S.B. with however, Dallas, politics nic has in been respect Dallas is the creation of noteworthy legacy for its lack black- one in which will district blacks exercise testimony brown coalitions. trial unquestionably powerful influence in the Hispanics indicated that blacks and fre- Representative, election of a and one dis- quently find themselves at odds one trict will have no in which effective (Sen. politics. another Dallas Tr. 252-55 apportionment plan, voice. Under 39-40; Mauzy); Washington, pp. Dep. of C. Dallas community Black exerts sub- Dep. discussing K. Shepardson, 51. In districts, stantial influence both and in politics, Dallas told scientist elections, recent have been the determina- presence state Senate Black constituency. tive trade-off can importance Dallas of determinative benefiting be seen as the interests scarcely elections in community. His remarks of black citizens Dallas. The record con- way Hispanic in no included discussion of support tains substantial of Indeed, no evidence influence. DX 35.3 at evi- 1-3. byit and Opposition this result. credible dence adduced in this action indicates that Hispanic presence respected the lacks of the com- representatives Dallas the Black constituency, coherence of the black munity and the is forceful and was known to that in their efforts to establish a legislature.

identity, Hispanics frequently have staked positions quite separate out from blacks. support 2. of a mi- Governor Clements’ Moreover, the was aware of district. nority Hispanic registration the low strikingly and the This issue does not merit elaborate voting figures County. in Dallas Tr. at 237. analysis matter of com- accorded the Black informed, general Members had been as a munity support minority for a district. matter, minority groups that these tended his role in the re- Gov. Clements described register vote at significantly rates process Dep. as “minimal.” Additionally, lower than whites. Black Clements, Indeed, at 11. he of Gov. W. presented figures leaders in Dallas had con- position process: one in the took whole cerning the actual rate at which Dallas on the of “a he insisted creation Black-Mex- minority participated citizens in the elector- minority district in Dallas.” ican-American 24.3, process. pp. By al DX 106ff. end all Id. Governor Clements made clear to session, special registra- actual voter any he would veto persons that concerned tion information was available indi- that, voters, reapportionment bill which registered cated in terms of all, was, such did a district. only marginally if at not include unequivocal professed by of Governor position Governor Clements and cer- noteworthy for several reasons. Clements minority tain other advocates of the dis- obviously, solicitude for particular Most his trict. Governor Clements testified that he voting rights of Dallas minorities is fragmentation felt the of the black commu- that unexplained. He testified it was root- Id. at “wrong.” nity “unhealthy” knowledge ed in historical of the com- his fragmentation 36. When asked what of Dep., of munity born his childhood there. him, strength minority voting meant Governor, Yet, presumably at 14-15. as he responded, Governor “I think the minorities developed familiarity has a substantial with in this district it is now have as constituted various areas in the state which have sub- been used the liberal Party Democratic minority population stantial concentrations. Id. for own purposes.” Texas their at 37. instance, Hispanic population For of Governor answer evinces the Clements’ ex- exceeds, numbers, County Harris in total strong tent which his sense unfair- population County by the black Dallas existing apportionment ness of the was en- 80,000 persons, DX. 40.D.5. The Governor position partisan political twined with his special duty does have a not assert the Texas Republican Party. a leader of the hometown, rights his nor is any there uncompromising Governor Clements’ special legitimacy lobbying attached to ef- on minority stand the creation a safe impetus forts undertaken under district in Dallas was well-known to the lingering memories of childhood. legislature, emerges from record Moreover, his existing sense fact as an immutable which dominated the fragmentation of black community Thus, process. lurking entire awareness of unfair, Dallas was so reme- and warranted on his conviction ultimately issue admittedly any dial action was based Ragsdale-Smith compromise doomed the legal Dep., advice. Nor was it the plan, though even varied only product of studies his he or office had con- marginally composition racial concerning ducted extent potential support representa- and had the of black influence Dallas minorities on the Con- familiarity tives whose with contemporary gressional is, Id. elections. 14. There politics certainly Dallas that of matched record, any noticeable absence Governor. That Governor Clements would meaningful justification for Governor special isolate issue of Dallas for militancy respect Clements’ with to the cre- attention, and that his concern with And, ation of district in Dallas. course, expressed stridently area should be end, so the “safe district” singular. Upon certainly single-mindedly, created H.B. 1 is initial majority not a district, and, terms, black census practical inspection is not data to- even a safe minority district. From his gether analysis changes self-proclaimed position as advocate mi- demographic changes had worked in exist- interests, however, nority Governor Clem- districts, ing congressional Dallas would ents was ultimately satisfied the racial present troubling to picture seem least composition District as drawn S.B. major controversy. of the areas of The In his testimony, Governor Clements product boundaries of the districts were the may conceded majority not be a “[i]t apportionment plan, court-imposed district in the true sense of or 50/50-51/50 two composition the racial of the districts 51-49, it accepta- but constitutes what was changed had in the inter- only marginally ble as to me a minority district would which vening Governor decade. never Clements give the Blacks representation that I professed following anything to be other they felt like deserved." (em- Dep., at 20 interpretation his own than of the desires of phasis supplied). Dallas, minority community and his Moreover, equity. sense of testimony acutely has about own racial even personal flavor, well-spring and to that extent is alarm- the elusive of his commitment ing, in that it tends belie representation only extended to minority altruism Houston, justification ord. the alternative Minority residents Dallas. Texas, subject great denied Texas were defendants is proffered by and West South who, of the Governor advocacy the zealous doubt. his commit- explanation, limited without County. His entire endeav- ment to Dallas County Harris B. then,

or, misgivings as to his mo- provokes County is es- County, Dallas Harris Like tives. It is domi- sentially metropolitan county. repre- minority 1 on impact The of S.B. According Houston. City nated be succinct- in Dallas sentation data, population the total to the 1980сensus swing-vote in- ly expressed: determinative total, 2,409,544. County is Of of Harris was congressional districts fluence in two black; 369,075, 19.7%, 473,698, or or are swing- heavily reduced to determinative 15.3%, the 1973 con- Hispanic. are Under The remain- vote influence in one district. entire apportionment plan, three gressional white, and so ing dominantly district is so 18—and congressional 8 and conservative, as to obliterate not districts— heavily with- others—9 and 22—are portions of two minorities any hope part on the of the only Districts 7 and are not County. in Harris might remaining in that district that action, and will be dis- implicated in this congressional influence the outcome of the appor- election, the extent that that resi- cussed possibility but also the tangen- representative to be relevant districts might expect dents tionment This effect responsive tially to their concerns. affects them. foreseen, foreseeable, actually and was County experienced Houston and Harris legislature. Legislators familiar growth during substantial the 1970’s. colleagues politics kept with Dallas their 667,632 period county gained resi- apprised neighborhood well of the nature of dents, DX No. 40.C.5. an increase of 38.3%. Dallas, politics any and of the effect re- significant changes were Accordingly, plan would have on proposed apportionment congressional quired apportionment city. elections in that County. District 8 was 16%over- Harris remains, to whether the question underpopu- 18 was 19% populated, District foreseen was intended. As this dis- effect lated, overpopulat- 22 was and District 35% indicates, justifica- proffered cussion Additionally, the ra- ed. DX. No. 40.C.6. seriously tions for the final action taken are changed had composition county cial are riddled with open question. They population had Hispanic dramatically. inconsistencies, giving consideration to 186,000 368,000, an in- increased record, something less contrast, the roughly By 98%. crease compelling. than In the grown had 35% and population Black process, differently from Dallas was treated In- grown only had 30%. population white major metropolitan the other area —Hous- deed, growth Hispan- the tremendous ton—and also from rural areas Houston was one of the community ic cognizable minority have communities. A life of facts in the most notable portion later of this dissent will examine area. were departures whether these substantive existing congressional appor- Under now,

justified. For it is sufficient to note (21.9% tionment, 8 is 40.1% the effect of 1 in Dallas was a Hispanic). Representative black and 18.2% minority voting strength. severe dilution of represents that dis- presently Fields Jack wholly result consistent The achieved minority-pop- is heavily District 18 a trict. deliberate, to dis- purpose with a invidious congres- the 1973 ulated district. Under of against minority criminate residents Dal- black and District 18 is 43.1% plan, sional las, by packing them into one district and minority population Hispanic. 30.9% Total eliminating might any influence have George Thomas course, is, Representative is 74%. expres- in no another. There representa- Leland is the elected “Mickey” sion of this sentiment in the rec- Representative Paul is as an Representative well-known tive from that district. Le- is 31.2 minority, land is Black. District 22 a extremely congressman, conservative and Hispanic. and Dis- with 17.3 Black 13.9% highly he is insensitive to minor- considered Representative represented by trict 22 is ity issues, least those insofar as issues Ron Paul. might govern- the federal be addressed (Sen. Wilson). ment. Black and Tr. at Harris minority population County The Hispanic effectively in a small area in the center voters in District concentrated county. Though entire area may Congress have a result of no voice as “minority community”, a be seen as such a Representative philoso- Paul’s conservative description reality broad distorts the of the phy. ethnic in Houston. concentrations population As of the a result enormous are, Hispanic Black and communities 1970’s, growth during County in Harris measure, distinct, large sepa- and was made one of the place decision rately The Black identified. residents in congressional new seats to Texas in allotted in two separate Houston are concentrated County. desig- Harris The new district was clusters, which are connected a manner reap- 25. As a of the nated Number result hourglass. that resembles an In other portionment, longer sig- District 22 is a no words, black one concentration of residents apportion- nificant of the part point, runs from a northeast central and the County. ment of Harris In terms of minor- other southwest point, runs from same ity representation, wholly it is irrelevant. roughly shape. form an “X” The His- 8,18, 25 provide Under Districts panic community essentially runs southeast representation minority for residents of the point intersection of that “X”. county. Thus, present purposes, may for be said separate minority there are three com- A number basic considerations formed (north munities in Houston—two Black of the background reapportionment of south) (east). one Hispanic First, County. light strong Harris of the congressional apportionment The 1973 minority support Representative for Le- splits all three of these areas. District 8 land, necessity preserv- and the obvious portions includes of the northern Black ing a heavily minority district Houston to community part Hispanic a of the retrogression, avoid maintenance District neighborhood. parts District 18 includes minority 18 as a safe district an un- all three communities. District 22 contains questioned reapportionment of the goal part a southern community Black in process. population existing part By south of Houston. virtue of 99,486 18 was below population the ideal division, this minority residents Harris following a district 1980census. There- County widely receive varying rep- levels of fore, necessary it was lines of Congress. Representative resentation in altered District 18 be to create sufficient- Leland is considered an legislator excellent Moreover, ly population. large total by the minority community, enjoying rep- addition of citizens to District 18 had to be utation as a forceful representative, vigi- drastically done in a not manner did lant in advocacy minority his concerns. composition alter the racial the district. contrast, By minorities do not fare nearly so Second, the basic once decision add well in Representa- either Districts 8 or 22. new to Harris had district been being tive responsive Fields is viewed as made, questions important re- certain to opposition concerns. His mained. The was aware of the busing school was a major feature of his composition County, racial of Harris last congressional campaign. Tr. at 189. knew of in the the substantial increase His- Though his district presently drawn is panic Under minority, Representative population county. 40% Fields has been elected support existing without the in each of the three apportionment, Hispanic Black and significant residents of his district. districts in there was them, In partial validity. least no have at 18 and 22— minority constituency 8,— Though event, however, be- Hispanics. does the correlation Blacks outnumbered Hispanics Blacks and there is evidence that 1 and as District as drawn S.B. tween form County in Harris are able to effective Leland, excuse suggested by Representative coalitions, existing the effect of the deficiency may which ex- any constitutional Hispаn- is to subordinate districts in ist in the manner in which other or, presence presence ic the black County Harris were drawn. least, general “minority” dilute it into a 1 includes District 18 drawn S.B. community. included minority communities most of the Third, made Clements had Governor district. present boundaries of that community known his view that the Black changes in the significant There are four size to warrant of Dallas was of sufficient district, explained by may district in Dallas creation a “safe” Black including twin necessities of new census County. According fig- tó the 1980 census up underpopulation tracts to make for the ures, 287,000 approximately there are Black district, and also to insure that the fig- County. residents of Dallas census minority tracts did not dilute the added County ures indicate that in Harris there thin, finger- A composition of the district. 369,000 Hispanic resi- approximately are shaped the north-east of the extension to words, 80,000 dents. In other there are small brings within District 18 a district Hispanics County more in Harris than there Hispanic community. Additional- black and County. are Blacks in Dallas On the basic ly, major a to the north-west of extension terms involved in the debate over Dallas brings District 18 a heav- the district within then, County, logic would dictate that the Further, portion of ily large Black a area. County new district in Harris be drawn in Dis- Hispanic community, currently way Hispanics provide such a as to a “safe” Finally, in District 18. trict is included district. small black concentration to south Bill No. 1 does create a “safe” Senate is, under excluded from the district S.B. fact, Hispanic proposed ap- district. placed in District 25. District 18 and portionment nothing creates more than two slight changes The result of these significant com- districts in which there is a percentage minority of the decrease in the bined in addition to the minority presence, from to 72%. Under this population, 74% preservation Rep. safe district. Leland’s minority candidate like- apportionment, accomplish goal Bill No. 1 does one Senate Dep. of win from District 18. ly to election which seemed to be foremost in the minds Indeed, the domi- Washington, C. at 8-9. legislators maintaining District 18 — Representative Leland feeling nant is that heavily minority as a district. The state from certainly win re-election will almost respect defends S.B. with to Houston run. district, he choose to should highlighting great similarity between Therefore, appears drawn by boundaries District 18 as goal reapportion- accomplish did one proposal 1 and the on behalf submitted However, num- process. a substantial ment of Representative Repre- Leland State are excluded minority ber of residents Craig Washington. sentative No. See DX. have the benefit and so will not question legiti- 79. There is some as to the representation exemplary of his macy considering preservation of an in- apportionment, concerns. the 1973 Under cumbent’s process reappor- district bene- denied the persons presently those tioning legislative districts. representative. having responsive fit Repre- extent that the statements of was an issue powerlessness Their relative Washington Repre- sentative behalf Taking into reapportionment. the course of express- sentative Leland be taken as con- place another account decision to its ing popular will of the Houston minori- Harris district gressional ty community, the consideration of those area, ample opportunity legislature had proposals, attempt and the sincere to follow remedy congressional denial of access to district Harris existing new legislative process. designated as Under County is District 25. across the runs east and west S.B. it apportion- congressional Under the 1973 part of thus in- ment, county. southern It part District 8 includes the northern community, on the Houston Black both southern portion cludes a substantial of the Additionally, it prongs of the “X”. includes part County population. of the Harris Black Hispanic community broad swath it includes Additionally, the southeastern (District 8, part city. in the eastern of the Hispanic The total tip community. of the drawn, presently highly irregular is in its is percentage in District 25 38.7%. minority Garcia, center-city boundaries.) M. See P-I total, 25.0% is 13.7% is Of this Black and popula- No. 3. DX No. 79. The total Exh. Hispanic. being There no incumbent minority. tion is 40.1% district, its con- congressional new and since drastically The lines of District 8 are al- new-made, political its predicting tours are by part tered S.B. 1. The northwestern stated, As intrinsically hazardous. future is community, the Black also the section speculat- Representative Craig Washington Hispanic community of the the east of reasons, ed, expressing any that a without center-city, are removed from District 8 minority might possible candidate be elect- placed By in District 18. virtue of this change, the minority population Congressional District ed the 25th District. from 8 is reduced from 40.1%to As 29.2%. stat- Dep. appears likely at 12. What far is more ed, Representative Fields, rep- current minority that the will exert in- community generally resentative from District 8 is con- district, the election fluence in from that non-responsive minority sidered concern- is, though the extent of that influence Certainly, minority population ments. most, present, beyond prediction. mi- At of the district does not exercise a decisive hope nority might residents of District 25 influence election. influence, have in the sense determinative Under S.B. the minority population of support might necessary their be a 8 is percent- District reduced nearly part of a successful trans-racial age points. credulity It strains think coalition. that, by reduction, means minority of this residents of District 8 will be able to exert it Again, must be noted that Blacks out- any substantial influence on elections in Hispanics number in District 25 almost this district. Though Representative Craig effect analysis two to one. Washington testified possible, is is disparity substantially this the same as though probable, that a Black or His- respect that advanced above with to Dis- panic candidate could be elected Con- By inequality, trict 8. means of this His- gress from district, he Dep. of- panics denied an voice in are autonomous no support fered illogical this somewhat County politics. Harris conclusion. Additionally, it be should noted composition District under minority effect of The overall S.B. 1 on S.B. 1 Hispanic. 16.7% Black and 12.5% County may political participation in Harris Whatever the politi- nature of the combined Hispanics stated: Blacks are simply cal minority influence may voters exert in packed one district —the in- into 18th—to District it is clear that Blacks outnumber district; continuing the re- sure a “safe” Hispanics in the district. District 8 as of Harris mainder residents drawn does nothing problem to cure the split 8 and County between District (cid:127)submersion Hispanic interests to Black 25. Their influence in District interests. presence Even if majority quality, seriously dubious di- already of District 8 is able to exert some influence in minished, potential given are not the election district, leverage Under swing influence the new district. will coalition, derive from a within which “safe” apportionment, there is one Hispanic existing voice will lose its distinctive characteristics. district, are two districts which and there goals set forth and would indeterminate level minorities exercise an retrogression change minority vot- also have avoided the entailed of influence. The be dem- ing strength in Harris chart, following by

onstrated means of the plan only slightly al- The “MALDEF-II” apportion- districts under the 1973 which County ters the lines in Harris from the 1 are listed in order of ment and under S.B. they manner in which are drawn in S.B. 1. minority percentage: the However, by acknowledging presence the minority communities of interest in a man- S.B. 1973 APPORTIONMENT reality ner that is more sensitive to the dual 18 72% District minority District 18 74%minority interests, Hispanic of Black and it enhances 25 39% District minority District 8 40%minority representation groups the of both District 8 29% minority 224 31% District minority The fragmenting avoids their influence. here, of the will not be set forth details population simply When viewed in terms legislature the is not plain since it is composition, may clearly be seen as S.B. obligation adopt under a constitutional existing influence on Harris dilution specific plan. to the extent that Congressional elections. All three County plan was offered which an alternative Congressional districts suffer a decline pitfalls the that was avoids when ranked in percentage, slight, albeit alternative, adopted, the and also the rea- order, descending in the above chart. as rejection, highly for its become rele- sons Alternatively, geographically, if viewed vant. 25, replaces substantially District which County, 22 in Harris provides District south described, Briefly pre “MALDEF-II” population, minority an increase of 8% heavily minority 18 as a dis serves District of District 8 minority population while the trict, Hispanic and 17.3% with 47.6% Black becomes percent. disparity declines 10 residents, minority percentage for a total especially egregious, when it is remembered majority- Additionally, 64.9%. it creates a that, 1970’s, Hispanic during popula- the the minority district in District which would doubled, County nearly tion of Harris Hispanic, for a be 29.4% Black and 30.8% grew at three times the of White rate the minority percentage total of 60.2%. Minori population. 1 is The clear effect of S.B. to ty population in District 8 would be reduced fragment minority dilute and vote. by These achieved to 10.8%. results are communities, pres placing Black which are minority S.B. and its insidious effect on voting strength ently in District 8 and so lack effective County, Harris are not influence, will into District where product any necessary unavoida- represented or congressional apportionment. by Representative ble be Leland Not successor, unquestionably his who will representation were there of minority issues Including minority sensitive to interests. clearly presented these additional Black areas District by disastrous 1 made effects entailed S.B. known, Hispanic communities allows removal legislators but minority presented district, in District 18 from that presently alternatives which would have avoided the and reunification of these areas with fragmentation dilution and as of S.B. Hispanic community meeting goals well as the other set remainder out Therefore, District 25. under “MALDEF process. particular, In the “MALDEF- II”, frag II” is not plan, presented by legislators Hispanic community minority Instead, plausible on June was a two it alternative to mented between districts. i n placed S.B. because would have achieved the is in one district-District 25- which, majority swing reference 4. District 22 S.B. 1 is minori- influ- under 23% ty, minority substantially County is now outside of Harris Coun- ence of Harris voters in Dis- mistaken, ty. importantly, portion fundamentally More of the dis- trict 22 ly and serious- entirely impact trict inside of S.B. 1. It derives from Harris almost distorts intensely minority population White. The to conduct the sort of local- the district a failure County. appraisal required Supreme is drawn from Brazoria Court. and Fort Bend ized political presence. it is the dominant District when composition the racial Third, population was only minority. combination with black the district 60% notwithstanding changes in the bounda- minority percentage the total ries, strong, popular, District 18 had a re- approaches the level considered “sáfe”. if, incumbent, spected support whose Representative Craig And Wash- appéar any way district did not to be in ington suggests, population reapportionment undermined en- 38% in District 25 makes election of a mi- tailed “MALDEF-II”. certainly in- nority possible, candidate percentage crease of that to 60% increases proffered by The reasons the state as considerably. the chances justifications rejection for the of “MAL- respect DEF-II” in favor of 1 with justifications has three state offered County analysis, Harris do not withstand rejection for the “MALDEF-II” with they simply explain do not to serve respect County, to Harris none of (1) pack decision to District 18 above the Indeed, convincing. unpersua- are so (2) level and generally considered safe to have pre- sive as about them the air of split remaining minority population be- First, argues text. the state plan that the tween two districts in a manner that leaves too was submitted late for serious consider- potential minority influence open serious fact, dated, ation. In by is submission, question. Neither the state’s brief, having state in its as been submitted record, present nor the additional roughly June six weeks before final explanations legisla- or alternative for the passage of 1. argument S.B. defeats convincing ture’s decision. This absence of Second, itself. the state contends that un- explanation strengthens the inference that “MALDEF-II”, der irregular- District 18 is impact. be drawn from To the extent ly shaped. Oddity shape in such matters foreseen, impact actually was is, course, relative, compari- but a brief stronger. inference is rendered even In the apportionment son of the 1973 lines in Har- case of County, minority legislators Harris County, ris by the lines as drawn and S.B. made clear to the the effect S.B. “MALDEF-II” provokes the conclusion minority 1 would have on voting strength in any county lines drawn in the will Houston. In the face knowledge, of this bizarre, seem sharp if viewed in relief. The nevertheless, legislature, ap- chose an objection certainly is insufficient justify portionment plan fragmented the vot- the lines of irregular S.B. which are ing strength minority of these citizens not fragment which serve to communities of in District 18 between two interest. so, doing rejected districts. it a reasona- Third, and most interestingly, the state alternative, ble for reasons which are trans- rejection defends the by “MALDEF-II” parently inadequate justifications. as Ad- that, arguing had adopted, been ditionally, apply it failed to to Harris Coun- the “safety” of District 18 would have been ty apportionment the one clear criterion and, compromised, fact, decrease guided that had decision the minority composition of District 18 in County. Dallas On the basis of discrimi- might have retrogression constituted under natory impact a legislative record the Voting Rights Act. These arguments impact which reveals that the actually was are curious for several reasons. foreseen, and giving consideration to the First, fact that 1 was S.B. chosen lieu of valid commonly used fig- benchmark alternatives, enactment, respect its with ure for a safe district was minority. 65% County, Harris strong warrants a inference figure with respect used to dis- intent. discriminatory tricts in all areas of the state. There was no explanation as to why a 65% C. Texas South concentration in District 18 was not suffi- ciently Second, safe. past, a Black The area referred to as South Texas does woman had been Congress elected to from not have geographical the clear demarca- drawn, and how would dovetailed with single of a by tion the boundaries offered case Dallas was the 15. county, as For of this ac- purposes Harris counties. Bill District 15 in- No. Under Senate

tion, congres- Texas defined South counties cludes the four southernmost part sional alloted to the southern districts Starr, Hidalgo and Cam- Zapata, the state — apportion- of the state under various district east and west eron. The runs legisla- plans ment considered the state of Texas. Dis- across the southern border Texas, described, as Briefly ture. South placed No. trict in Senate Bill action, counties in this includes the defined It directly to the north of District of Bexar and extends the south counties, along the and runs includes Addi- part the state. Southern County, to San Patricio Gulf Coast Coast, along run- tionally, counties Gulf County. north toward Bexar inland ning County, are south from San Patricio region designated ensuing discussion, purposes included in “South For Texas.” of the state Dis- the area circumscribed will be tricts drawn congressional apportion- the 1973 Under region. Though, treated as discrete plan, ment District 15 the south- includes sense, does not any real South Texas exist state, District 23 ern-most counties way, treatment in such a formal such a immediately contains the counties proper. this instance is As will become County, south 14 in- of Bexar and District plain, dispute apportionment the over the of cludes the northern Gulf Coast counties. question essentially Texas involves figures The that the South 1980 census revealed in of made existing malapportioned, legitimacy districts were of the the choice the some For ex- degree. appor- cases to an extreme alternative legislature between two ample, overpopulated. District 15 was 25% plans two plans. tionment Each of the DX. a number Additionally, No. 40-C.6. congressional two districts question allotted adjacent to 15 had been districts District Texas, District 15 and existing to South shifts, by population and also affected district, designated Dis- congressional new required reappor- would affected be 27. The area defined trict Number other, tionment of more remote districts. plan districts in each is identical. two required ap- This “domino effect” that the words, been plan might one have sub- other portionment of South Texas be fundamen- other, any way without in stituted for the tally variety proposals A were altered. any altering the manner in which other considered in the course of the congressional boundaries are drawn. A number of the con- early plans debate. plaintiffs respect The claim of the with Representatives sidered in the House of at- relatively simple, 27 is Districts 15 and tempted remedy existing malapportion- largely on the ethnic and ra- concentrates by shifting ment of exist- merely the lines of the two districts. Ac- cial characteristics outset, ing districts. from the composition cordingly, the racial and ethnic strong support there was in the Senate whole, the manner in of the area as place new that would one of the should be which it is divided set S.B. congressional districts allocated to Texas forth at the outset: region, as a somewhere in South Texas % Black Total % % Population Hispanic District alleviating malapportion- means of existing ment, represen- to secure and also effective 80.61 .25 80.36 526,803 55.87 2.97 From 52.90 tation for the residents of that area. 527,341 special July on 1.6 68.22 outset session 66.62 1,054,144 Total plain- figures, On the basis these opposition there was no serious summarized, may be as follows: placement tiffs’ claim of a new district in Texas. South a new con- legislature place chose to prolonged The The apportionment debate over Texas, then, Texas. That gressional district in South focused on the man- South existing ner in the new would be 27—and which district new district —Number 64-65; Harlan). (Douglas Tr. at 385-86 placed together in the con- District were apportionment plan. text of a statewide drawn an The inference from inordi- encompassed by these dis- nately high The area two concentration in one minority population especially tricts has a total strong district when dividing the into con- adjacent 68.22%. In area two “packed” district districts districts, gressional legislature created apportionment which has effect minority population one district in which diluting potential minority influence. See 80%, exceeds and another district which is 200; 4.4.11, DX. No. DX. No. 4.4.4 approximately minority. 56% The plain- 652-53. alleged tiffs this choice concentrates then, To a degree, racially certain impermissible “packing” an minorities discriminatory impact of 1 minority S.B. on district, expense into one at the of their strength Texas is estab- South influence in the other district. composition basis lished racial contrast, By plaintiffs way argue argued districts. The state has not alternative “packed” His- that District is not available to the voters, would panic nor do contest the conclu- have avoided these deleterious results. The that, sion had the Garcia-Luna amendment Garcia-Luna amendment to 1 would adopted, minority population been configured have South Texas a manner would have been divided South Texas more produced following would have between two equitably composition: then districts. issue becomes one Hispanic Total % %Black state, foreseeability, and intent. The essence, action legisla- defends the 71.8 71.4 .4 by conceding disproportion- ture the fact of 64.7 62.4 2.3 composition, denying pur- ate but invidious plaintiffs argue apportion- pose. ment avoids the packing of en- minorities justifica- The of state advances number by tailed and so S.B. does not dilute the legislature tions for the choice of the to voting strength minority residents adopt configuration con- South Texas South Texas. in of the proposal tained instead S.B. outset, At the it must be noted by Representatives submitted Garcia and percentage of minority residents in District light Luna. In of the immoderate concen- is15 alarmingly high. figure is far Hispanics in tration of District 15 and the excess of figure the 65% used the legisla- pernicious effect will on have ture as a guidepost for the creation Texas, strength in South the issue of moti- “safe” substantially districts. It is greater worthy vation of close attention. than highest minority the next concentra- (72% tion County). 18 in District Harris First, argues configura- the state that the This extreme deviation from the established tion of 27 were Districts 15 and drawn standards apportionment for the did not response a suggestion by the Mexican- escape legislators. the notice of Von Rep. Legal American Defense and Education Dohlen, Chairman of the Conference Com- (MALDEF). April Fund On Joa- mittee Redistricting, on noted: MALDEF, Avila, attorney quin for testi- In a quick perusal districts, you if fied on before Senate Subcommittee 80.36%, look District you imme- time, [at Redistricting, 15] in Austin. At he diately wonder packing about the con- MALDEF, presented, propos- on behalf cept. congressional apportionment, al for 30.3, Indeed, DX. No. precisely which District 15 was drawn in p. 5. the record indicates that a the same manner under 1. No. concentration of 80% as S.B. DX. minor- ity is, proposal residents in a has given prac- designed district for 21.4.2. This been purposes, tical prima May I.” pack- Again, facie “MALDEF MAL- evidence See, ing. Clements, e.g., Dep. of presented plan Gov. at DEF the conference Second, committee, the state defends 1 on the in which District 15 was drawn S.B. (“MALDEF II”). that, drawn, in the same manner. ground geo- District 15 is that, DX. 31.4.3. The state admits later Moreover, the total graphically compact. yet anoth- process, MALDEF submitted 15 is deviation District population II, er modified—which proposal—MALDEF noted, initially, be only .03%. It should Districts 15 and 27 in the same man- drew is a valid criteri- geographical compactness P-1 ner as the Garcia-Luna amendment. if on for a district other M. Garcia Exh. No. 16. the state priorities are met. If a more fundamental its appears argue, MALDEF is bound ger- racial impermissible district involves an suggestion initial rescue the rymander, compactness will not Texas. South Kirksey v. judgment. from that See argument of the state fails Supervisors County, Board of of Hinds entire things. account for several 1977) (en banc). More (5th Cir. F.2d process congressional apportionment fundamentally, though District 15 as drawn amendments, deletions, overloaded with compact, 27 is relatively 1 is District S.B. specif- modifications. The number of times regularly-shaped. By nor compact neither plans changed objections, ic were meet contrast, amend- under the Garcia-Luna concerns, pursue recently emergent and to ment, united, fact, 27 is geographically District is simply beyond calculation. throughout legislative process, contiguous along most of the counties consisting five specific plans were viewed as vehicles for plan, District the Gulf Coast. Under discussion, inquiry, analysis, and were sprawling 15 becomes a more and extended in way no considered inviolable. The state to be made is not that point district. The justification no implicit offers for its con- one wins the award for relative com- tention of flexibility that this rule is not districts, pactness of but that the nature Instead, applicable to MALDEF. the state counties population distribution argues, may legitimately MALDEF be held contained in the two districts necessitated original to its characterizations of relatively of one dis- compact the creation sentiment, offered, however tentatively trict, larger, and one more diffuse district. might however much those sentiments record, Nothing logic, nor in indicates altered additional information and choice, that, given necessity of this changing circumstance. compress proper choice was to Moreover, great respect with which the dis- As for the numerical balance of original treated MALDEF’s tricts, popula- closer Garcia-Luna achieves suggestion for South Texas not accord- equality does 1 for Districts tion than ed MALDEF’s proposals for other areas 15 and 27. fact, legislative of the state. In record plans reveals that MALDEF’s for West Third, argues Hidalgo the state and Texas and Harris given were counties, the two southern-most Cameron consideration, cursory gained and never counties, congres- in the same have been legislators. serious attention White And years. sional district for over one hundred suggestions the extent that those were preserves this “historic connection.” S.B. discussed, dissected, they were carefully hand, divides On the other Garcia-Luna liberally and amended under the force of counties, Hidalgo places two those competing considerations. No evidence was 27th. This the 15th and Cameron offered to the effect that MALDEF has an however, argument superficial appeal; has exclusive represent charter to the concerns of the deceptive. it is Most counties Texas; Hispanic residents of South historically have been in the Texas South there is no apparent why repre- reason its congressional district. The possibility same respect region sentations with to that were might sepa- have to be that some of them deference, with treated such in contrast to appear from others does not to be the rated given the short shrift proposals MALDEF product elsewhere. of some sinister intention on the developed part sponsors during of the of the late 1960’s the ten- Garcia-Luna amendment, but was the result the deci- ure Connally of John as Governor of Texas. sion place congressional a new district in The of the validity divisions reference splits Texas. S.B. 1 Jim Hogg, South any has not been purpose articulated Starr, Brooks, Willacy counties established, and so the communities of in- Hidalgo in a manner and Cameron by given regions terest identified are essen- disrupts historical connection between tially context of curiosities in the deep all six of these Texas counties. South present However, things action. several reason to suspect There is no that the con- “regions” about the noted. may be Hidalgo nection between Cameron is Hidalgo and Cameron are com- Counties sacrosanct, especially it nor should Valley bined in the Lower Rio re- Grande have treated been as the one bond that gion. Willacy County is also in could not be broken. region. explain why state does Fourth, the state that a argues “commu- finds the combination of former two nity among of interest” exists the four telling, so yet ignore chooses to the connec- counties, southern warrants which their region tion in this Cameron between preservation congressional as a “unit”. Willacy, a bond that is severed argument is deeply related to the third Moreover, preserved by but Garcia-Luna. argument concerning historical connections. Hidalgo County is split from Starr and Za- It is tenuous. equally plea of “commu- Counties, being pata the latter in the South nity of interest” was often sounded in the planning region. Texas legislative By course of debate. the end of process, concept mention pro- inquiry Of additional interest in the into great skepticism. E.g., voked a deal of communities interest are divisions of course, Dep. Shepardson, p. of K. 22. Of South state Texas created community idea of an extant of interest state districts. DX. No. 73. The senatorial which given unites residents of a area especially intriguing, districts are because has considerable validity. particularly It closely approximate more the size of meaningful when used in context of (The districts. state senatori- issues especially which concern a minority al drawn are currently districts as in 1981 cognizable group, group or a united around litigation in federal Accordingly, court. one unique concern, and acutely local comparison here will be the districts en- distinctly separates persons those from oth- 1971.) plan, acted in Under the 1971 Sena- ers near utility them. The of the concept parallel torial Districts 20 and 27 run to one becomes attenuated when it is used to de- another, through north and south South scribe economic or merely geo- similarities Texas, great in a manner that tears similar- graphical any event, boundaries. com- ity to the districts created Garcia-Luna. interest, munity of frequently used in meaningful comparison To the extent legislative debate, course is not a representative made state operates consideration that on the same lev- districts, Districts 49 run and 58 north and el of priority as a minority voting strength well, portions south as and connect and other constitutionally mandated con- cerns. southern-most counties with counties to the example, County north. For Starr is in the The record does any not contain indica- Brooks, as Hogg, same district Jim Duvall tion whatever as to of compel- the existence grouping and Jim Wells Counties. This ex- ling communities of which might interest ists under as well. There is Garcia-Luna no drawing dictate lines the southern suppose reason to that communities of in- districts in certain manner. The state terest, purposes for dis- state contends that division of state into designated tricting, be than markedly would different “planning regions” probative is congressional apportionment. extant Tr. communities of interest. See concept regions” Garcia). localized “planning at 125 (Rep. group past of voters who in the have sum, concerning trict a argument commu-

In his This asser- part constituency. been ultimately interest indetermi- nities of accurate, misrepresents but the ef- tion is ambiguity nate. This exists because apportionment plans on District fect terminology inherently vague, and sus- of District necessity, 15. the boundaries Moreover, Of manipulation. ceptible to 15 had to be altered on the basis in Texas placement of two districts South over- figures. The district was 25% census required split that the counties be in some Therefore, necessary populated. it became reality, Given that reliance on fashion. 130,000 persons who approximately that as communities of interest a determinative currently represented by Representa- require factor would that such his tive de la Garza be removed from dis- identified, communities be but also that As placed trict and in another district. placed hierarchy, in some form of noted, 1 and the both S.B. Garcia-Luna which, them, among order to establish objective. plans accomplished that Both might easily concept most be severed. The currently move a number of counties simply tuning. is not amenable to such fine place them in District 15 and District Finally, the evidence adduced in this action extent, plans disrupt To both the conti- way preserves no indicates that S.B. 1 nuity representation that has existed extant of interest in more any communities during Representative de la Garza’s tenure. coherent fashion than does Garcia-Luna. fact, currently In of the counties included in muddle, light thoroughgoing of this rea- preserves only S.B. the four District suggests concept son of “communi- southernmost, places the remainder in ty of interest” be as explanatory avoided District 27. those four counties in which Of device. preserves continuity, only S.B. one—Cam- Fifth, the state defends 1 as a valid S.B. eron—is moved Garcia-Luna into Dis- of affording Hispanics means Tex- South move, in exchange trict 27. And for that equal as process. access the electoral large Representative swath of de la Garza’s Specifically, argues it S.B. maintains constituency current is returned to District District in a form which will assure argued, 15. The state has not nor does the representation by leg- continued a minority demonstrate, evidence that the residents of islator, and that District 27 affords Mexi- special Cameron have a attachment opportunity can-Americans the to elect a Garza, de la nor that Representative person of their choice. continuity rep- those citizens’ interest in currently represented District 15 is worthy resentation is more of consideration Garza, Representative Eligió “Kika” de la parts than the interest of voters in other Mexican-American. Representative de la currently apportioned. as District continuously Garza has served in the House course, incumbent, has no of Representatives since 1964. In the and its future is uncertain. Its tenure, course he has been an ex- population minority under S.B. 1—55.8%—is tremely popular figure, as evidenced presumed far level short of the sufficient to elections, past general three in which he has guarantee minority representation. Be- 74%, garnered 66% and 70% of the vote. doubt, yond influence in Dis- believe, There is no reason to nor has the trict 27 will be considerable. contended, state that the minority percent- is, of that influence under true nature S.B. age of District 15 had to be raised 80%to 1, contrast, By uncertain. the Garcia-Luna Garza, Representative insure that or some- District 27 in a manner that formed one equally sympathetic Hispanic inter- minority population precise- created a 65% — ests, would be elected. which, ly throughout process, the level Additionally, the state contends that Dis- figure was taken as the benchmark for mi- configured Moreover, trict preserves nority districts. the entire “continuity representation,” aréa, minority population Texas South retains Representative percentage distorting de la dis- is 66%. Far from mi- Garza’s If,

nority voting strength region, apportionments. in the principle under the plan closely approximates Garcia-Luna non-retrogression, legislature the state can- Indeed, Hispanic presence. Garcia-Luna is not draw a district in a manner that would equitable apportion- a much more means of population, decrease that district’s minority Texas, then, ing given way legisla- South by virtue of Texas His- S.B. South ture define that panics chose to area. consigned indefinitely are to a con- gressional severely dispro- district which is Hispanics in Texas do not have a South portionate Hispanic in its composition. right representation constitutional 1, thus, appor- Senate Bill No. an enshrines Congress by minority legislator. a tionment which has the clear effect of plaintiffs leg- do not contend that the state packing Hispanics into one congressional obligation appor- islature was under an district, thereby voting dilutes their tion Texas in guaran- South a fashion that strength. impact invidiously dis- teed Hispanics representatives two in Con- criminatory, plainly and it was within the gress. once the South Texas re- contemplation legislature when it circumscribed, gion Hispanics residing was adopted Bill No. 1. Senate in that area have a right constitutional to a congressional apportionment plan which D. West Texas fairly accurately reflects their Texas, As is the case with strength. And South the area legislature once the state place decided to referred to as West is a geographical- two districts in Texas South Tex- as, ly presumption imprecise region. For purposes those two dis- of this action, tricts accurately minority portion would reflect the West Texas includes that presence region. 20th, 21st, state circumscribed Districts, Congressional and 23rd as deline- noted, As already region as a whole is described, Briefly ated in region S.B. minority. 66% Bill Senate No. 1 divides area; metropolitan includes the Antonio San districts, South Texas into two one with County; Bexar the area to the west and Hispanic population, 80% and one with 55% County, extending southwest Bexar west Hispanic population. impact of this vicinages known as the Trans-Pecos apportionment minority voting strength Bend; and Big along and south the Rio is plain Hispanics packed into one dis- — Additionally, Grande River to Laredo. trict, far in any justi- excess of conceivable number of counties to the northwest of San fication; and, as necessary corollary Antonio are included in this nebulous re- packing, Hispanic influence gion. remaining district is diminished. The net effect of is to dilute congressional apportion- Under the 1973 minority voting strength in Texas. plan, South ment District 20 is wholly contained This effect actually foreseen the within County, substantially Bexar and is legislature. 248; p. DX. No. DX. No. composed of the residents San Antonio. 107, 162-65; DX. p. No. 56 at 79. District 21 includes the northern suburbs in County, Bexar and extends and north- west has, Finally, the throughout ap- state west from Bexar County to Brewster Coun- portionment process, evinced serious con- ty portion County. and a of Jeff Davis cern for avoiding retrogression portion District 23 includes the southern voting strength, as defined under the Vot- County, Bexar and also a number of coun- ing Rights Act. In the context of Harris ties to the southeast and southwest. The Cоunty, it became clear that the counties, along district contains four border understood that constraint prohibiting the Rio Valley. Grande River apportionment plan which would decrease the minority percentage any specific dis- figures The 1980 census revealed that (See supra 1004-1005.) pp. trict. experi- As- each of districts these three had suming the propriety analysis, population of this during enced sizable shifts presents harrowing prospect for future 1970’s. District 20 in Antonio was un- San

1015 Texas and Mexi- 20%; are on the border between 23 Districts 21 and derpopulated by 14%, re- with overpopulated, by 29% Bill No. 1 creates districts were co. Senate As a result spectively. DX. No. 40.C.6. following composition: racial changes in changes population these Total 1 Hispanic Minority 7r District Black' districts, thorough adjacent congressional congressional boundaries alteration of the 8.8 20 61.7 70.5 particular importance required. was Of 21 22.2 2.9 25.1 27 in place was the decision to District 23 4.1 53.1 57.2 Texas. This decision affected a num- South may claim be summarized plaintiffs which, the 1973 ber of the counties under They fragments easily. assert that S.B. congressional plan, included in District were community coherent Mexican-American proposed placement 23. As a result of the border counties that which resides in the under the new District District River from along run the Rio Grande Webb apportionment plan, substantially is con- end, at the southern north County portion fined to the southwestern region, Big west to the Trans-Pecos state. Bend, including County Presidio and Brew- three of districts All minority County. splits this ster S.B. portions of Bexar under discussion include 23. community between Districts population center in County, the dominant implicated, District 20 is that deficiencies A number of portions these of Texas. population, or in in total district sparsely popu- counties West Texas are may compensated al- population, lated; 10,- majority include fewer than 20. in the contours of District terations contrast, County Bexar By residents. plaintiffs claim that the western densely populated. census tracts Certain 1 in District 21— counties included than re- County people Bexar include more Presidio, Brewster, Pecos, Terrell, Crockett Texas counties. Be- side in entire West com- actually and Val have more in fact, Verde— substantial demographic cause with the counties in District 23 than mon shape of West alterations size they do with the other counties in District Texas districts The addition possible. that these Specifically, plaintiffs assert large numbers of counties to one district distinguished by two western counties are be offset the removal from that first, characteristics: con- dominant County district of a small number of Bexar cognizable Hispanic tain substantial and words, density census tracts. In other communities; second, they are border coun- population Antonio and around San in. such, argue, they have plaintiffs ties. As provided great flexibili- with the other counties little common ty forming of Districts 21 boundaries white, predominantly and 23. The District which are extensive and heated debate over fo- special West Texas concerns and are not affected shape composition cused on the and racial po- The dominant border communities. of those two districts. northern presence litical in District is the population County, of Bexar com- suburban re- Under Senate Bill No. District 21 monly Stocking area. referred as the Silk substantially mained the same as under the white, community heavily and its apportionment. District on the on the issues political attention is focused hand, severely other in its truncated affluent white suburban citi- that affect geographical scope. Under S.B. these citi- zens. The record indicates that portion County includes a of Bexar represented by Representative were zens which resembles a horseshoe around the Loeffler, Republican. white Thomas G. Antonio; additionally, urban center of San generally Loeffler is con- Representative straight the district Be- extends west from of his Medina, responsive to the sentiments Uvalde, sidered xar to include Dim- mitt, Zavala, Maverick, County constituency, often to the Kinney and Webb Bexar counties. The concerns of other derogation last three of these counties situation, of the Hispanics In this Texas from the remainder of his district. residents then, poor, rural His- relatively the votes of constituency. District of the western counties are panic residents legislature was aware of the racial The They in 21. effectively “wasted” District in- composition and ethnic counties population 25% of the total constitute in of Districts 21 apportionment volved district, indicates evidence 23, apprised of the various and also was they gain that have been unable to which characterized the localized issues attention, political advocacy, much less the 40.C; 40.D; question. in DX. Nos. counties Representative Loeffler. 55, 28-50, (M. Garcia); DX. No. TR. at The record the western establishes chose, however, adopt pp. at 103-119. It many counties socio-economiccharac- have effectively plan which apportionment the Rio teristics in common with Grande presence in West Texas Hispanic buried the First, each of these coun- Valley counties. overwhelming Anglo political beneath the Hispanic population ties contains an ex- exist- presence in District 21. Alternatives 105; P-I, Garcia, cess of A. Exh. No. 40%. this submer- ed which would have avoided Second, heavy DX. 40.D.8. this concentra- occasions, plans were variety sion. On a Hispanic tion of residents creates a substan- would have combined the presented which counties, presence in tial ethnic these which West with the Rio Grande Texas counties beyond population figures extends mere Congressional one dis- Valley counties in political the creation of a climate of debate. salutary political trict. The TR. at 50. Hispanic communities in these counties was made effect of such a combination active; hence, politically public tend to be plain legislature. pp. DX. No. at heavily by minority issues are influenced availability 103-119. of this in- Given P-I, Garcia, concernments. A. Exh. Nos. formation, His- fragment the choice to 28, 34, 51, Cervantes, 52, 70,126; Dep. of F. panic community question- in West Texas is 40-42; Harlan). pp. (D. at pp. TR. 341-377 closely able and must be examined. Third, the counties are united education levels, respects income which in both conducted, an analysis Before this addi- alarmingly tend to be P-I A. low. See implicated ap- tional issue which is 2-19; Garcia’s Exh. Nos. P-I M. Garcia’s Texas be set portionment of West must Cervantes, Exh. No. Dep. pp. 24. of F. at District 23 forth. As drawn S.B. 42-46. minority population. In the contains 57.2% context, In this community of interest Texas, typi- district is debate over West great meaning, has unlike the use cally “minority” district. Yet considered term the debate over Texas. In South minority of the district population Texas, West the western counties are sub- appellation. insufficient to warrant such an different, stantially economically, demo- fig- percentage is well below the 65% graphically politically, from the other ure; moreover, legisla- appears that the situation, counties in 21. In District such actual apprised ture was of the fact that minority political presence coherent can registration voter District wholly submerged by majori- a dominant Therefore, delineаted in was 40%. S.B. ty presence. Precisely this circumstance legislature knowledge actual had exists in District as drawn which, though they creating were a district Representative Craig Washington testified was, fact, quite superficially minority, that the residents of the western counties in Garcia.); See, (M. contrary. TR. at 103 things 21 have two in common with 122-123; Cervantes, P-I A. Dep. p. of F. at Stocking community the residents of Silk Exh. No. 75. Garcia first, Bexar County: they are human be- previously The alternatives mentioned second, ings; congres- are in the same fragmenta- which would have avoided the sional Dep. Washington, p. district. of C. at community inherent in comment, Hispanic tion of the 32. Laying aside this sardonic substantially vast social have in- gulf separates West S.B. 1 would also Representative State from Val Verde Coun- population of District Hispanic creased the times, opposed strenuously any apportion- 23. At various ty. She with alternative presented placed County Val Verde ment Dis- plans apportioned which would have Dep. McKnight, of P. in District 23. See Hispanic 47; 56; in a that included trict 23 manner Shepardson Dep. of K. Dep. of 61 to 66%. percentages from See McBee, passim. arguing Dep. of S. 44-54; Dep. of P. Shepardson, pp. K. placed should not be Val Verde 29; (M. Garcia); McKnight at TR. at 50 District, Representative McBee the 23rd 2.A; 2.D.4; 22.41. The DX. Nos. DX. No. by City the Council presented a resolution that, legislature generally, was informed Rio, Val Verde county of Del the seat of Hispanic plans these would increase actual Verde in the 21st County, that Val remain In registration approximately rates to 50%. However, DX. No. 71. this evi- District. instance, then, legislature had actu- far-flung does not substantiate dence knowledge al its evaluation defendants, for sev- by conclusion advanced District,,23 false; also, was “safe" nature eral reasons. which it had available concrete alternatives city the resolution of a council Initially, actually district safe. would make the county concerning congres- of a seat what separate, though deeply two related On placed in sional district it would like to be points, legislature apparently conscious- marginal weight assessing in the most ly which apportionment chose propriety legislative reapportion- of a Hispanic voting worked to the detriment of Moreover, plan. Representative ment First, strength Hispan- in West Texas. concerning the McBee’s statements desires fragment- community ic West Texas value, are of some but constituency of her by splitting ed it between two should not be accorded determinative districts; districts, in one of these the His- weight. importantly, Finally, and most Second, presence panic is “wasted.” Representative McBee’s assertions arose one West Texas district which was created entirely inap- a context which renders them eye minority rep- with an toward effective plicable ultimate made decision fails, reality, provide resentation even legislature. opposing the state the inclu- a reasonable assurance of such a result. County sion of in District Val Verde The reasons for such a conscious and calam- Representative speaking McBee was in ref- explored. itous choice must be plan which apportionment erence to an legislative The record offers dividing moved the line between District 21 apportion- most tenuous rationale for the by only county: and 23 one from between ment of West Texas entailed S.B. Verde to between Kinney and Val Counties Essentially, justifications two emerge from Val In other Verde and Terrell Counties. the record. plan opposed by Representative words the separated McBee would have Val Verde First, matter, as a historical the counties on County from the other counties in the Trans-Pecos extension in- have been extension, Val by placing only Trans-Pecos Congressional cluded the 21st district. County Valley Verde with the Rio Grande Therefore, state argued, has the 21st counties. 1 is defined in S.B. a valid means preserving pattern. this historic More- Representative opposition McBee’s to this over, contends, the state these counties points: transfer on was based two related expressed have a desire remain in that First, had always Val Verde been district, and S.B. 1 does no more than enact District, along 21st with the other Trans- popular will of the residents West counties; second, Pecos Verde Val argument Texas. mischaracterizes the shared a with those community of interests evidence. McBee, Dep. pp. counties. of S. 7-18. The The most proponent proposed plan by Representative vocal 1 with contested S.B. McBee, respect to West Texas was Susan a McBee dissolved the historical and contem- reject of those For this the inclusion of the pora'ry unity counties. Trans-Pecos then, Representative McBee’s in District 23 size point, limited counties was based (M. Garcia). great are of value. of the district. TR. at 93 expressions support do not self-evidently, the deci- two fragile Other than these and ulti- reject plans sion made reasons, mately unconvincing plan, pre- such as the Garcia-Luna and the record of this action are record unity by moving served the Trans-Pecos justifications adoption devoid of for the region Representa- entire into District 23. 1, in lieu of an alternative which would S.B. simply inappli- tive McBee’scomments Hispanic community have consolidated the proposal. cable to that accurately of West Texas in a district which issue, strength. its important and the issue that reflected state submissions, Representative attempts, informs McBee’s trial post state- its ments, ground legis- defend 1 on the that the community is the existence of a area; duty interest in the entire adopt Trans-Pecos lature had no affirmative and, community specific after that of interest advanced identified, valid, the determination of whether it plaintiffs. point, though duty leg- more related to the interests of the Rio irrelevant. The incumbent on the Valley any particular or produced by Grande counties the counties of islature is not plan by participants legis- is essential. All the credible submitted in the Instead, evidence introduced at trial indicates that lative debate. it derives from clear prevalent community imperatives, prohibit of interest runs constitutional which River, along the legislature adopting Rio Grande from Presidio state from County. fragments existing minority to Webb P-I A Garcia Exh. which an com- See 2-19; 32; Dep. Washington p. munity, thereby Nos. of C. and dilutes the 42-46; Dep. strength community. of F. Cervantes at P-I M. of that Garcia’s Exh. No. 24. respect S.B. 1 is deficient with to this

Second, any contends plan duty. state The Districts fragments existing minority and 23 which included all the counties of the an com- munity along which resides the Rio Trans-Pecos extension in District 23 is un- Grande Valley and the acceptable, By Trans-Pecos extension. resulting because the district dividing community between two con- large. would be too compact- The issue of districts, gressional di- impermissibly S.B. ness been briefly previ- has addressed in the Hispanic voting strength. lutes The delete- respect ous section with to District The 13. impact minority voting rious S.B. principles incorporated advanced there are strength plain was made by Briefly put, here reference. the concern apportion- the debate over West Texas size, relevant, justify with while cannot an plans ment. Alternative which would have apportionment plan which is otherwise un- were consequence presented avoided that constitutional. throughout process. The choice of S.B. Moreover, several matters undermine the 1 over may fairly these alternatives be said validity of the state’s concern size. The have been consciousand deliberate. measure, large any district drawn in the justifications patently advanced are inade- part western relatively the state will be quate. The connection between foreseeable large. This problem of size is a function of strong, effect and intent becomes in the sparsity of population region, and competing, legitimate absence of a ration- simply it Though pre- cannot be avoided. ale. record, figures cise appears not in the is,1, that District as drawn IX. truth, larger substantially than District Irregularities Procedural plan. contained in the Fi- Garcia-Luna nally, Supreme only the state has advanced two in- listed One of the factors legislator’s Arlington Heights Metropolitan stances in which a decision to Court in Committee, leadership House the House Housing Corp., 429 97 S.Ct. (1977), pres- to determine the Advisory L.Ed.2d 450 to the Re- created Committee discriminatory intent Fourteenth ence gions, Compacts, and District Committee. claims, presence of Amendment was had a diverse TR. at 30. This committee process procedural irregularities in the regional but it had little makeup, ethnic and or decision form- produced action power. Advisory or no The Commit- actual While the ing complaint. the basis of the times, met two or three tee claim present defendants in the civil action all after the crucial census not have met at legislative process which resulted March, information became available challenged congres- passage Thus, TR. 30-31. at the time that sional district was marked no such plans carving the state into con- actual legislative procedural irregularities, rec- considered, Ad- gressional districts were ord, by deposition as illuminated and trial visory virtually had no role. Committee de- testimony, contrary. Abrupt shows the House scheduled exten- Committee partures procedures, normal blatant hearings throughout during sive the state irregularities, attempts and obvious de- through the winter autumn of prive the their minority legislators and al- spring of 1981. Senate Subcom- equal process lies of access to the are stark- hearings similar in the winter mittee held ly revealed in the record. spring testimony of 1981. More Prior to the start of the 1981 May July. heard the House in late session, the House created a new commit- drawing plans, the House Com- tee, designated Regions, Compacts, as the mittee, and, Von specifically, Chairman (“House and Districts Committee Commit- Dohlen, not make direct reference to did tee”), appointed whose task was to hear persuasive testimony gath- definitive and testimony concerning redistricting plans, hearings. ered at these and, presumably, suggested to formulate 11, beginning May At of the plans for the consideration of the full House Committee, session of the House Chairman membership. Representative State Matt complete plan out a Tim Von Dohlen laid Garcia, of Bexar County, an intervenor congressional apportionment for the com- action, this civil placed volunteered to be on Although mittee’s consideration. Chairman committee; redistricting but he was attempted Von Dohlen stated that he had he, placed on perhaps unwisely, what had prior to contact all committee members to choice, Appro- denominated as his first presenting plan his to the committee in priations Committee. TR. at 23. Bexar session, formal some committee members County, county city whose seat is the of San Antonio, 89, Tr., 12, largest was the metropolitan May area were not contacted. DX. 1981, that not representative sitting p. did have a 5. Von Dohlen at stated he on the House Committee. TR. at 30. Rep. Doyle had been unable to reach Willis representation When this lack came to Ragsdale. Rep. Rep. Rags- and attention, Rep. his personally Garcia re- dale, committee, minority member of the quested Speaker Billy Wayne Clayton to stated that he not been hard to “[had] Speaker Clay- name him the committee. find.” who redis- When asked devised the ton refused. TR. at 30. While this offered, tricting plan which he Chairman procedural irregularity, not be a the lack of give explicit Von Dohlen refused to an an- representation major of Bexar swer, and, instead, everyone, stated that —a center, Census, Mexican-American DX. witnesses, members and had offered testi- 40.C.6, on the committee —indicates an in- mony incorporat- and comments which were sensitivity to the concerns of and South 89, plan. ed into the DX. House Committee Texas, West their substantial Mexi- 51-54; Tr., 12, 1981, 3-6, pp. May at House can-American communities. 4-5; Tr., 13, 1981, May pp. Committee at 44, 18, 1981, May pp.

In DX. House Tr. at response to the criticism that certain represented minority areas of Texas were on It is clear that no mem- 69-72. he directly expected public had stated that to conduct of the' House Committee bers and, testimony, call day, Von Dohlen the cre- on the same for a assisted Chairman bill, they recently proposed nor vote his even plan, of his had known that on ation Id., though map it. House of the had been avail- preparing he had been Com- 12, 3; 44, 1981, beginning May able since the of the Tr., p. May at DX. mittee 18, meeting, demographics and the Tr., 1981, Committee pp. at 73-74. May House evening of May since the late 11. DX. presented May when he first his On Tr., May p. House at Committee plan, prepar- Dohlen had not Chairman Von Indeed, minority groups 41. certain claim accompanying demographic ed information demographics did not receive (“demographics”) showing the racial and Id., p. at following evening. until the 44. districts, as re- ethnic breakdown Legal A representative of Texas Rural Although DX. quired by Rep. H.R. 58. 58. Aid, objected Noriega, strongly to the Raul Chairman, Hollowell,5 Acting Bill insisted apparent expectation committee’s intelli- demographics that the were available in the gent plan, the Von Dohlen discussion of during evening May committee room appearance because delayed 11, 1981, minority attempted members who requested required demographics, he were un- secure crucial information postpone consideration the committee spite day, successful until next Id., May of the Von Dohlen until 16. diligent efforts. DX. House Committee Noriega pp. pointed at 41-51. out Tr., 12, 1981, May pp. 44 and 46. refusal allow comments on a Prior to the introduction of the Von Doh- proposed redistricting plan could con- plan, groups len various individ- several sidered evidence of an intent to discrimi- presented plans prepar- ual House members Id., against nate Mexican-Americans. during many ed days public testimo- Still, Dohlen, pp. 50-51. Chairman Von ny Spring DX. House Hollowell, Rep. Acting Chairman Davis Tr., May 1981, p. (MAL- Committee hostility showed considerable toward Norie- plans); Tr., DEF May pp. House id., Dohlen, (Von ga’s objections, p. 43 (Republican 36-37 Women’s plans). Chair- floor); (Davis); p. p. from the 59-60 plans man Von Dohlen laid none of these (Hollowell, floor), sought from the before committee when it convened in push proposal early vote. May its formal session 1981. Chair- response Noriega, to the comments of Von lay man Dohlen also refused to out a Ragsdale Rep. postpone a motion to made Luna, plan by Rep. creating two plan. the the Von consideration of Dohlen County, districts in Harris Luna had recognize Chairman Von Dohlen refused to 12, May offered to the Chairman on the motion, stating Rep. Ragsdale for the that day demographics same for Dohlen, he, recognize not mo- Von would 44, appeared. Von plan Dohlen DX. House testimony all had tions until been conclud- Tr., 1981, May 18, p. 78. The Chairman 89, Tr., 12, May ed. DX. House Committee gave withholding two for reasons the Luna 1981, 59. Von p. at Because Chairman Doh- viz., late, plan, it was submitted too agree postpone len to would considera- and that that his Chairman felt own plan, minority tion members of the of his plan complied Voting Rights with the Act. slip away House forced to Committee were Id. The Chairman gave no reasons for his room, meeting breaking thus present plans refusal to other submitted quorum. This had the effect of tactic minority groups to the committee. attempts in his blocking chairman 1981, 12, beginning plan May adoption At of the secure of his from the com- meeting, adequate committee Von a time comment Chairman Dohlen mittee at before plan through relinquished 5. Chairman Von Dohlen his Von Dohlen committee. Von seat Rep. during apparently improper Hollowell the statement of Dohlen Noriega to debate Raul felt Noriega, Aid, 89, Legal Rural Texas in which from the DX. House Com- chair. Tr., 1981, Noriega objected “ramrodding” May p. to the of the 43. mittee was “forced in received, Committee prior to the formula- [sic] could be bill” at the presentation position having tion and of amendments to kick out a demographics maps Tr., meeting. substitutes. Since House May 14 noon DX. required for the submission of amend- were May p. apparently 67. There substitutes, ments, complete plans, and upon any no and comment was discussion necessary for more than a few hours were substitute bill. preparation plans, espe- of additional contrast, procedure provid- the Senate submission of cially delay since the between a model of deliberate consideration. The ed proposed plan computer and the counterpart for the House Commit- Senate print-out requested final of the information detailed, prepared packet informative tee 142-143, Tr., pp. days. could take several proposed congres- of information for the Therefore, 178-179. if the Von Dohlen configuration, sional which it dis- district plan, demographics, was available on Senators, and refrained tributed to all then 12,1981, May extremely it would have been five days, from consideration for order major difficult to formulate amendments or allow members and interested citizens present substitutes in time to to the com- impact fully assimilate Senate day. mittee for consideration on that as proposals. DX. 22 and 23. The Senate 13, 1981, May On the House Committee whole did not rush consideration of the again convened to consider Von Dohlen congressional redistricting bill. The House plan. During portion the first of the meet- finally passed the amended version of H.B. ing, public testimony the committee heard 1400; acted, yet had not and the Senate Rep. on the before the committee. begin conference committee session did not presented complete Bush then substitute days generally until twelve later. DX. See plan, which four affected districts 2, IB, May Floor Tr. Senate Session metroplex. Worth Dallas-Fort 1981; Committee, DX. Conference Tr. adopted, Bush substitute was and was fur- May amendment, ther modified an offered Rep. Wright, pertaining to the Houston After the House Senate conferees substitute, amended, area. The was agreement congres- on a failed to reach adopted. point, Rep. Berlanga At the ad- sional before order, point raised a as to whether the session, journment regular Governor amendments to the substitute could be of- Clements, 10, 1981, special on June called a fered. Chairman Von Dohlen stated that July begin session of the order, amendments would not be but that primary agenda issue on the 1981. The complete presented. substitutes could be congressional reappor- the first session Rep. Berlanga indicated his intention to tionment, unre- although apparently several present complete day. substitute the next were also lated matters included. Von Dohlen then would stated that it be his The Committee of the Whole Senate met intent to convene the committee the next July begin consideration of House, day at the noon recess of the but the proposed congressional districts. DX. officially committee was recessed 4 p. until 1, approved plan, on 34. Senate S.B. m., 14, 89, DX. May 1981. House Commit- 21, 1981, quickly and sent the to July Tr., 13, 1981, May p. tee at 65. DX. 38. House. Chairman Von Dohlen convened his com- began hearing The House Committee House, noon, mittee on the floor of the at public July on and con- testimony 14,1981. May on There is no record of this 27, July vened in formal session on for meeting, unlike all other House Committee to House. purpose reporting hearings. Rep. Berlanga, who had received Tr., 27,1981. 53, July DX. House Committee Chairman Von Dohlen’s assurance that he Von Dohlen laid substitute, meeting, At that Chairman present complete could was not 1, an amend- present produced able to out and then Rep. that substitute. Ber- S.B. House, langa later stated on Dohlen and sev- co-sponsored by the floor of the ment Von Id., representatives. p. eral other 3. The House Committee reconvened on Au- 5, Von proposal present- 6, Dohlen had not been gust again 1981, and on August but during hearings, ed the earlier at which the failed report to a bill. DX. 53. The House testified, public and many members who itself was scheduled to meet to consider co-sponsors 7; were not had not seen reapportionment hence, August on prior amendment to the time that it was committee was under pressure severe time Id., 7-8; presented for pp. consideration. morning when it reconvened on the Au- 55, Id., p. gust Tr., DX. House Tr. 199. The Von August Dohlen 7. House Committee 6,1981, passed; plan presented p. amendment but a at 52. The committee toiled until by Rep. Washington, met, pertaining to the the House itself at which time Chair- area, merely by Houston failed one vote. man Von Dohlen allowed the committee to 53, Tr., 27,1981, DX. House Committee July attempted stand at ease while he per- p. at 23. Consequently, Rep. Washington suade the House to allow the committee Id., stated his minority report intention to file a continue its deliberations. House Com- Washington mittee, Tr., 7, on the Amendment to the full August 1981, p. at 33. The Id., p. House. 55. agreed House the House Committee should report continue to meet until it could When the Representatives House of met bill, and the committee reconvened in a proposal to consider the committee’s July on Id., different p. room. 34. 29,1981, Speaker Clayton made several rul- ings First, adverse to the meeting, cause. At this second Chairman Von Dohlen, he minority report ruled that the pressure, submitted under departed from his by Rep. Washington could not previously be con- leadership style, deliberative and Tr., sidered. July attempted DX. House to force a bill from the commit- Second, p. 30. he Rep. procеdural rulings. twice ruled that tee means of his By speaking expired, Garcia’s time for way example, recognize when he refused Rep. strenuously Rep. order, Garcia was advocating point his Sernos for a Id., p. proposals Id., for and West South Texas. quorum present. effect that a was not also, See p. point 112. pp. of order 34-35. Rep. He did not act on Clark’s Smith, called on C. p. speaker 90. The suggestion that the committee should recess sustained points against assemble, of order Rep. Gar- until all were members able to cia, thereby shortened the already maps papers, mea- with their in the new Id., ger on debate the Garcia proposals p. for the committee room. 38. The Chairman and West South Texas placed committee, districts. Points of a call on then order pertaining expired time were sel- allowed a vote be taken on all amend- Id., against speakers dom raised who outstanding. advocated ments while the call was amendments that did not p. Although procedures benefit minorities. 41. these have Id., p. supra. rules, and fns. 10 and certainly been within the were partisan, given unquestioned impor- The House passed version of subject tance of the matter under consider- Id., third reading August p. 1981. ation. However, many spoke members force- fully in support of a motion to re-submit August meeting, the second Chair- proposed redistricting bill to the House man Von not only Dohlen rushed the com- work, vote, Committee for emphasizing further mittee to a but he also refused to that the committee pro- passed during regular had considered the enforce H.R. posal day, one and that proposed by Rep. few House session. H.R. 58 was Von members Dohlen, seem to be pro- co-sponsored satisfied with the by several com- Id., posal 194-200, as it pp. stood. required 208-209. mittee DX. 58. H.R. 58 members. The motion to passed, proposed re-commit and the all plans reapportionment to be House Committee relegated map. was thus accompanied by demographics the and a Id., task of sending out an acceptable language, applied legis- bill. its own By at 215. process, presumably lative which includes Garcia, P-I M. presented in the House. Rep. Davis proceedings. committee is no con- the committee 20 and 21. there an amendment to Exs. presented by demographics; deliber- accompanied not of the committee temporary that was record ob- new, committee member when another more strin- produced but ations that demographics, jected to the lack rule, no Calendar Committee gent and Committee Chairman stated that Calendar representative articulated member or other in the committee applicable rules are not of the rule on the passage for the a reason neglected to enforce H.R. 58. process, and in his testi- Speaker Clayton, House floor.6 7, Tr., August DX. Committee House McBee, trial, Rep. Susan mony at p. If it was the intention 47. passed that the rule was deposition, stated he did put operation, not to H.R. 58 in chair in as- attempt to avoid inaccuracies in an known to other not make his intention individual census tracts in some signment of too, members, in could have they, order 596-97; Dep. TR. at apportionment bills. computer delays or laborious hand avoided p. 155-59. McBee at Susan statistics. demographic calculations in violation of The new rule was enacted to vote on the Members were thus forced requires special standing House rule that knowledge of proposal, any without Davis twenty-four laid out hours rules to be on the racial and its exact effect ethnic at It was advance of the session. TR. 594. make-up of the affected districts. While p.m. after on passed at some time 4:00 been Chairman Von Dohlen have tech- August pri- House convened whereas the put in his failure to into nically correct August Compare, 8. P-I M. p.m. or to 2 during regular effect H.R. enacted Tr., p. Ex. at 597. The Garcia session, it is clear that the substantial bene- the maxi- lapse twenty-two hours secured the enactment of H.R. 58 fits change in mum. The eleventh hour greatly would have assisted the committee gave August minori- session, rules for session just special members ties, opposed who the House and others regular The Chairman at no session. pre- bill or less time departure for his Committee time offered a reason plans. Rep. Matt requirement. pare from the committee’s to offer alternative complained though that even Garcia 7, 1981, August On the afternoon of August he did not receive passed rule on Calendars Committee of the Texas House morning of passage notice its until Rep. Representatives, chaired Susan time August TR. at 78. Given that the 8. County, opponent McBee of Val Verde an submitting proposed plans to lapse between Tr., plan, of the Garcia DX. House Au- receiving computer operators and com- 112-115; gust pp. generally, see information plete maps demographic McBee, Dep. of Susan met to consider rules hours, greater twenty-four than was often reapportionment the debate TR., 56-57, 142-143, certainly pp. scheme on the House floor. Late af- passage between the greater than the time ternoon, passed the Calendar Committee of the rule the Calendar Committee and allowing only complete rule substi- unusual session, August opening tutes, amendments, proffered not bills the minori- substantially new rule hindered Garcia, concerning apportionment. P-I M. ty groups preparing plans. While the House, Special 19. Ex. rules are rare in the 19-20; of the rule was to make the McBee, obvious effect Dep. p. of Susan Tr. at 76 onerous, the more Garcia) process amendment more (Rep. (Speaker Clayton), and 593 later, effect, session, was that during important discovered regular but the Calen- substitutes, not by allowing only complete passed requiring dars Committee had rules amendments, previ- maps demographics congres- any for both motion to call the plans question effectively sional state ous shut off debate public testimony. only meetings only Its are in take 6. Calendars Committee is the House sessions, only hearings, tape mem- formal committee Committee that does its be- McBee, Dep. p. participate. of Susan cause it is the committee that does not bers pending yet or as representatives, all unintroduced substi- Minority rep- other tutes, vote, succession, quick presenting plans and forced a resentatives and view- points minorities, favorable to the substitute, sustained on the and then on the bill as defeats attempting to secure time to 56, Tr., 8, substituted. DX. House August present viewpoints. Speaker, ap- their The pp. at 178-179. parently departing from procedure, normal The August convened on remarks; refused to extend time for and a Rep. Washington immediately time, motion for the extension of which challenged requiring complete the rule sub- would fully have allowed each individual to stitutes, on the basis that the Calendars debate the merits of redistricting proposals, Committee had no authority suspend to failed by very margin. narrow DX. rules of the House and to forbid amend- Tr., August p. House at 17-18. Routine- Id., ments to the reapportionment bill. at ly, time was called members who made p. Washington’s point 2. of order was over- persuasive speeches proposals in favor of Id., p. ruled. at 3. The rule was not chal- Id., supported by minority legislators. at lenged ground on the that it had not been 105, 129, 156, 165, 176, 181, pp. laid twenty-four out prior pro- hours to the and 192. opposing minority Those members ceedings to which the apply. rule was to Id., proposals overran their time but once. pg. at 29.

The first addressed the House Early August in the proceedings, it was the committee version of S.B. which became representatives clear to several was laid briefly out and discussed Chair- the rule requiring complete substitutes thereafter, man Von Dohlen. Immediately procedural would work to disadvantage Speaker Clayton left the chair present- proposing those alternatives to the Clay- substitute, ed his complete with an accom- ton substitute. After relatively short de- panying map and demographic information. bill, Clayton bate of the Speaker recog- Id., pp. at 21-22. After he introduced his Rep. nized Messer to Rep. close. substitute, Speaker Clayton returned to the Bryant intercepted by raising point Speaker’s guide chair to the debate on his Id., time, pg. order. at 50. At that there bill, own highly was a unusual occur- complete pending were several substitutes Id., rence. p. minority at 79. The members on the Speaker, desk of the which he had were caught completely by surprise by this put not Rep. Bryant before the House. legislative maneuver. They had not had that, Speaker wanted assurances from the the opportunity to Clayton examine the close, by allowing Messer to he was not plan, and were not prepared present to sub- attempting prevent to consideration of stitutes to it. complete substitutes amendments, yet those as undisclosed or the minority members hurriedly had substitutes, by Bryant pointed the House. assembled, hand, after the Calendar out Speaker, past eight rule, Committee laid out its designed were years, parliamen- had never failed to show to serve as substitutes to the House Com- tary courtesy to by refusing other members mittee and Senate versions of S.B. present their amendments for the consid- Clayton TR., substitute. 602. at More- Id., eration of the entire House. at 52. over, computer spew could not out sub- Speaker curtly indicated that it was his geared stitutes Clayton plan in time prerogative lay out amendments at his present TR., day. House on that leisure, reply and refused to directly Rep. p. Indeed, 142-143. computer was so Bryant’s inquiry as to the intentions and that, slow the time the mem- recognizing Rep. effects of Messer to close. bers became complete aware of the substi- Id., Speaker Clayton at 52. also later de- rule, tute it was very employ difficult to authority clared his to decide the vote drawing maps computing demo- spread needed to entertain a motion veri- graphic TR., 142-143; statistics. at p. Id., DX. fy p. Rep. Carlyle vote. 50.2.C. parliamentary inquiry Smith then made a TR. minority pp. members. at 97-99. of the of the as effect abandonment who see the passage. members wished to to proceeded House bill then on of the pending the desk amendments Id.,

Speaker. at 53. X. threat, Speaker apparent this the After amendments, Departures Established pending and laid out several Criteria Very of late in Substantive allowed debate on all them. the and after discus- evening, considerable the legal prepared handbook In the sion, previous ques- Messer moved Rep. the Legislature regarding Texas benefit of the foreclosing the

tion. This had effect of congressional of reapportionment the the still Speaker’s debate on all motions on the state, legislators the the were districts of desk; furthermore, only position it allowed cautioned: closings on the substitute then before the objective minority allowing [of House, i.e., bill, Clayton the and S.B. chance to of groups some elect candidates time, Id., itself. at 177. At at least applied systemati- should be their choice] complete one substitute on the remained the cally throughout reapportionment Speaker desk of the had not been which together population equality process presented the House and con- to for debate verifiable, objectively legiti- and other sideration, specifically, substitute includ- goals. mate state or local Id., ing by Rep. p. at plan Garcia. 197. 203; 4.4.11, p. at see DX. No. DX. No. also previous motion to Rep. Messer’s call of 4.4.4 This advice at 670-71. is derivative House, question though even passed legal principle legisla- when a the basic expressed representatives some a desire which are principles still ture identifies plans Speaker’s address the on the choices, Id., guide policy principles those pp. desk. at 180 and 197. Votes its pursued taken on the and bills applied consistently were substitutes must be substituted, pending, passed manner. of this equitable A violation reading. to third question legitimacy tenet calls into criteria, good as well as faith moti- Normally, a bill would be laid out for legislature. vation of the reading third on the next so that mem- day, bers opportunity would have consider in this survey A record TR., carefully p. effect the bill. at major departures action reveals several 95. leadership the House obvi- and articulated substan- from established very ously quickly wished act on final A review these instances tive criteria. bill, passage apportionment for in- supposedly extent will reveal the which waiting day, stead of until the next standards were in an applied immutable time, period House recessed for a contradictory inconsistent and manner. procedure pro- then reassembled. Id. This legislative days duced two one twen- within population 1. The black of Dallas ty-four day. response hour Id. to this minority district. maneuver, minority House members that, in his Governor Clements testified and their allies refused to return to the community the black of Dallas judgment, chambers, hoping quorum. House to break a to warrant County was sufficient size TR., pp. delayed 95-97. The walkout district in which creation of security action on S.B. 1 for a time while community representative could elect a representatives. forces seized absent DX. choosing. Clem- Dep. its own Gov. pp. Despite po- House Tr. at 203-208. ents, 11-20. Governor un- pp. Clements’ efforts, lice none of the minority members subject view on fundamental- alterable apprehended, were or only one two ly changed process appor- debate them have returned to the House to bill, rationale against County. tionment of Dallas His vote after it became obvi- adopted ous John quorum independently that a had assembled was Senator without Wilson, other direction with respect architect ultimately First, past, became S.B. 1. TR. at had district elect- legisla- point legislator At crucial late in the ed a when its racial com- 476ff. Second, minority. which had received process, position tive one 60% rejected congressman, consideration was for the the incumbent Representative serious that, Leland, passed, George “Mickey” reason were it it inevi- is explicit popu- Thomas figure vetoed in tably by County politics, would be Governor Clem- lar Harris (Sen. Mauzy). ents. TR. at 280 would seem to need the additional mar- not provided in 1. gin his district S.B. population of The total Black Dallas 280,000 County is approximately persons. Deep b. South Texas—The 15th Con- County, District, In there approximately gressional Harris are drawn con- as 80,- 360,000 Hispanic minоrity percentage residents. There are tains a in excess of district, result, Hispanics County adjacent in Harris 80%. As more than County. in only minority there Blacks Dallas Yet the Number contains 55.9% Governor, Had been population. firm commitment and ulti- the 65% criterion Texas, mately legislature, applied entire to the sub- in South two “safe” districts created, principle minority stantive that a communi- could have been which would have 280,000 ty persons strength deserved the accurately reflected autonomy provided by Hispanic a “safe” district was presence region. in fact, applied County. not to In Harris Har- By c. an appor- West virtue of Texas— County apportioned ris in was a manner splits minority tionment which com- Hispanic population which makes sec- districts, munity congressional between two ondary population to the Black in each population 23rd District a minority has County the three Harris districts. This could have percentage 57%. striking explicit deviation an substan- been raised two alternative means. tive unexplained. standard is First, above, explained as Trans-Pecos placed have in counties could been District The 2. 65% standard a “safe dis- 23, minority thereby increasing percent- trict.” (and, age incidentally, unifying to 64.5% The record of this is replete action with minority community). West Texas minority population reference to 65% as a Second, County the district lines Bexar benchmark for the of a mi- creation “safe” been slightly, could have altered increase nority E.g., Dep. Shepard- district. of K. minority population of District 23. See son, p. 16. In the ardent attempt 1. P-I M. Garcia Exh. No. legislature to create such a district Dallas County, minority Fidelity 65% population combined Natural Boundaries unquestioned target. was the TR. at 477 expressed The its intent (Sen. Wilson); Dep. of Gov. Clements at 16. adhere, much as to natural or possible, as instances, In ig- three was standard its apportionment. historic boundaries in nored, in a manner had a which detrimental Texas, In West the failure to include the effect on preservation minority vot- Trans-Pecos counties in 23 has District been ing strength. justified by to the tradi- reference historical has, a. Houston—In County, Harris tion that Val Verde since (This fact, 18 was drawn so minority ultimately, its total been in District 21. irrelevant, above, percentage figure justi- pp. was 72%. 119- explained was is as Texas, 121.) necessary fied to split as insure that the district In refusal South would a minority legislator. Hidalgo re-elect No Counties was ex- and Cameron reason was advanced for the conclusion that reference to the fact that those plained by split popu- additional cushion of 7% had never been two counties safety congressional lation was line. This required boundary insure the district fact, the district. argument reality two factors distorts the of historical militate intent has been conducted. One deep Tex- tive South counties bonds between rejection pro- County, disheartening of recent constitution- as. In Harris lessons the mi- would have increased posals guile which is the history perfidy al ex- composition of District 25 was nority power pursue im- which those sometimes Ship Houston plained by reliance on the permissible objectives. Yet the Constitu- those boundary natural between Canal as a as sim- sophisticated well tion “nullifies (What natural constitutes a two districts. Lane ple-minded modes of discrimination.” Yet, is, course, problematic.) boundary Wilson, at 876. River, Trinity County, Dallas Therefore, evi- circumstantial available boundary between a natural historic sifted. thoroughly of intent has been dence no 5 and obstacle Districts between effect inferential connection districts, in of those alteration plain, but insufficient and intent often dis- single-minded the of pursuit the violation. In establish constitutional Dallas County. trict in consideration, the inference case under and inconsistencies contradictions These strong, especially be is impact drawn validity the of the substantive undermine legislative in light of the elaborate employed by which have been the criteria processes, produced which detailed knowl- apportionment justify state to the ultimate con- any plan of under edge of the effects 1. To the extent decisions reflected in S.B. before final action was taken. sideration confuted, is take authority their by is the inference further reinforced The pretext. on of This character of an aura and history combined consideration provokes curiosity about suspicion intense voting lingering vestiges of discrimination actually the the motivations underlie state, irregu- procedural in the the blatant congressional adopted reapportionment process, and permeated which larities legislature. the Texas inconsistency with estab- striking which applied. were substantive standards lished XI. these ev- prolonged scrutiny, Under various Conclusion plain of identiary pattern factors form The dominant characteristic of Senate words, com- purpose. In other invidious Bill No. 1 is its effect on minori- deleterious bination, evidence intent the indirect of ty voting strength in of the districts each “ripen[s] into presented in this action This challenged in this action. conclusion proof.” Administrator v. Personnel Fee- emerges from an examination of exhaustive 279, 25, at 99 at 2296 442 U.S. n. S.Ct. ney, impact apportionment plan of on n. 25. area, with attention to local special each “intensely danger conducting of The “intensely detail and circumstance. appraisal” mandated the Su- localized appraisal,” Regester, White v. 412 localized that, of this preme Court in the course is required 93 S.Ct. at U.S. evaluation, politi- the social and microscopic legal of factual is- complexity and litiga- reality implicated rights cal implicated sues in this action. The ration- It well to get will somehow lost. tion ale analytical for the intricate framework that, localized commanding remember this has been employed in dissent elaborate- plans, the appraisal Su- forth, ly and set need not reiterated. “in preme recommended evaluation Court confluence, from the Essentially, derives light past present reality, action, separate this two streams v. 412 Regester, and otherwise.” White height- life which warrant the most social at 2341. S.Ct. judicial voting rights attention: ened racially legislative motivated action. in this reality The fundamental involved which all action is the extent to citizens

In addition to the close attention directed participate, will be congressional Texas allowed apportion- the effect terms, process of democratic inquiry equal plan, legisla- ment intensive into 533, 586, 1362, 1394, self-government. promise 84 S.Ct. Con- L.Ed.2d 506 (1964), “redistricting that all members of society reappor- stitution is law, tioning legislative legislative bodies is a guaranteed equal protection of the task which federal should courts make regard origin. to race or national without ” every not to . pre-empt... effort Wise v. minimum, provision At a assures all Lipscomb, 437 U.S. S.Ct. persons right participate in the (1978); L.Ed.2d v. Connor processes decision-making which affect Finch, 407, 414-415, 97 431 U.S. S.Ct. component their lives. central of this 1833-1834, (1977). 52 L.Ed.2d 465 guarantee right equal political is the right participation. When this is denied or vein, In this the Court has indicated that here, abridged, premise a demo- finding unconstitutionality in a legisla society cratic is undermined. redistricting plan suspend tive does will deference owed embod PARKER, M. Judge, ROBERT рortions ied in those are not offen concurring part dissenting in part: Weiser, sive. White 412 U.S. (1973), L.Ed.2d 335 the Su I opinions my concur fellow Court, preme in upholding a district court’s Justice, Judges, Johnson and as they relate of unconstitutionality determination and 27th Districts 15th in South prepared Texas districts Texas. It is entirely appropriate for this State, nevertheless, overturned the remedy, temporarily, Court to those areas remedy by that selected district court. In objectionable found Voting under the plan, another the substituting Supreme Rights Act so that elections in Court “The Court stated District erred in cannot, proceed Texas can on schedule. I implemented .. It choice. should have [its] however, changes concur in the made in plan] clearly approximated which most [the S.B. 1 to which are not needed remedy that plan the reapportionment legis of the state also, therefore, defect. I Judge concur with lature, satisfying while constitutional re opinion Johnson’s in those areas of the quirements. . .. The pref District Court’s State in which 1 is S.B. retained. I dissent erences do override whatever state changes those made Dallas goals plan] were embodied in State . .. [the 3, 5, County area to districts 24 and 26. also, Id. at 93 S.Ct. 2355. See Whit changes Those predicated are not on a Vot- Chavis, 124, 161, comb v. 403 91 U.S. S.Ct. ing Rights objection finding or a that S.B. (1971) (“The 29 L.Ed.2d 363 re is City unconstitutional under Mobile v. powers medial of an court equity must-be Bolden, 446 U.S. 100 S.Ct. task, adequate they the to but are not un (1980). L.Ed.2d 47 limited. Here Court erred so In my opinion, Supreme broadly brushing aside Court has set state policy equita without solid constitutional or guidelines forth required clear for courts grounds doing ble for so.” make substantive intrusions into the reap- portionment process. The Court has said judicial policy This deference in fash- that “reapportionment primarily is a matter ioning equitable recognizes remedies for legislative consideration and determina- principle such that remedies should not ex- tion, judicial and that relief becomes appro- scope ceed the for violation which priate only legislature when a reap- fails to they required.1 are To allow otherwise portion according to federal constitutional unjustifiably would thwart clear and requisites...” Sims, Reynolds legitimate v. people. will of the principle priate 1. “The eliminating well-settled that if nature limits are aimed scope remedy are to be determined does not condition that violate Constitution ” simply the violation means federal- or flow from does not such violation.... directly Bradley, 281-82, court decrees must address and relate Milliken v. 433 U.S. 2757-58, (1977) (ci- to the constitutional violation itself. Because of this inherent limitation L.Ed.2d upon judicial omitted). federal tations authority, appro- federal-court decrees exceed without enter- standard the Court recognized stricter 5th has Recently, the Circuit indicated, domain. As ing in the context of principle this applied challenges such ours. this is forbidden. dilution felt that time to be Addressing what was at Further, it Supreme makes Court area, Judge in this test the Constitutional stan- reasons for such stricter clear improper for that it was indicated Wisdom ju- require those which precisely dards are court, viola- remedying a constitutional legislative plan in dicial deference tion, sought propor- plan draw a passes constitutional in which those areas passes “If a representation. tional legal muster. test, important longer race is no dilution reflect the un- high These standards legislatures.” are not factor.... [W]e federal courts as drafts- position usual Edwards, 582 F.2d Marshall plans. have We reapportionment men Further, he (1978) (citations omitted). stat- emphasized ‘legislative repeatedly representation, “[P]roportional ed racial for primarily a matter reapportionment attractive, is though an abuse of district legislative consideration and determina- Id. at equitable court’s discretion.” ...,’ byis far tion for a state specific or constitution- statutory Absent then identify the best situated to violations, any changes al 1 made in state within policies reconcile traditional on behalf of the this Court’s remedial constitutionally mandated framework suit, brought minorities which population equality. of substantial this Court its merely substitutions contrast, possess federal no dis- courts preferences legislature. those of compromise some- tinctive mandate can be understood as an affirma- apportionment pol- conflicting times state minority voting attempt tive enhance name. the wake people’s icies in strength beyond require- in the state constitutionally failure legislature’s of a Act and the Voting Rights ments of the state conflicting to reconcile these Such actions run afoul of the Constitution. however, a federal court goals, federal premise “a is forbidden take court obligation of left with the unwelcome political considera- purely into account legislature’s stead performing in might for appropriate legisla- tions lacking authoritative- while Wyche v. Parish Po- tive bodies.” Madison bring legislature ness can that the (5th Jury, 635 F.2d Cir. lice 414-15, Connor, supra 431 task. 1981). 1833-34. S.Ct. at y has Supreme I am aware that the Court Thus, come standards these stricter onl plan that a court-ordered will be indicated must, effect, a court play into when reviewed under “stricter standards” than state legislate legitimate in the absence plan. have legislative Such standards appli They are pronouncement. developed specif- two applied been changes must make cable Court ic aspects plans, of court-ordered neither of objec remedy Department’s Justice implicated which are in this instance.2 27th In the tions to 15th and districts. however, state, interests contexts, rest In those stricter standards are high these standards can which motivate appropriate goals because such are essen- ends, adopting legislature’s tially apolitical. such best be served Political as af- scru particular action has survived constitutional groups, firmative for subject not and tiny. should cannot be the of a goal population equality important

2. made achieve the “We have clear that in two respects court minimis variation.’” Con will be held stricter stan- little more than de Finch, accomplishing than will a nor v. 431 U.S. S.Ct. dards its task state (1976) Chapman (citing legislature: persuasive justi- v. there are L.Ed.2d ‘[U]nless 765-766, Meier, 1, 26-27, fications, reapportionment plan 420 U.S. court-ordered (1975). of a state must avoid use multi- 42 L.Ed.2d 766 districts, well, ordinarily member and as must short, my opinion it is that the Justice Department’s objection to the two South requires

Texas districts this Court to draw Voting

an interim which corrects the

Rights violations Act which exist there so elections can be held Depart-

schedule in Texas. The Justice objections not, however,

ment’s an invi-

tation for this Court to redraw other dis- according preferences

tricts to our when no

constitutional violation has been or can be so usurpa-

found. To do is an unwarranted processes

tion of the democratic of our soci-

ety.

A. M. SEAMON UPHAM,

Chet et al. Cornett, Tex., Paris, for plain- Leighton A. Civ. No. P-81-49-CA. tiff. Court, United States District Austin, Tex., Richards, Jua- David R. Texas, E. D. Craft, al. et nita Paris Division. Botello, Segura, Roy Luis M. Jesse San April Garcia, Luna, Antonio, Tex., for M. A. A. Gonzales, Eureste, Padilla, Palomo, R. R. B. Tamez, DeHoyos. M. R. and H. Cristan Korbel, Camacho, Austin, George J. Jose Gonzales, Tex., A. Dolorosa and J. for B. Adame.

John Harmon and R. George, M. James Jr., Graves, Dougherty, Hearon Moody, & Austin, Tex., for Eric Clifford Chester ‍​​​‌​‌‌‌​​​​‌‌​​‌​​​​​‌‌​‌‌‌​​​‌​‌‌‌​​​​‌‌​​‌​‌‌‍Upham. Avila, Le- Mexican American

Joaquin G. Fund, San An- gal Defense and Educational tonio, Tex., Rodriguez. and J. for A. Garcia Jr., Austin, Tex., Quintanilla, Rafael Party Democratic of Texas. Jr., Slagle, pro se. Robert C. III, Sherman, Tex., Slagle, R. C. for Bra- dy Fisher.

Case Details

Case Name: Seamon v. Upham

Court Name: District Court, E.D. Texas

Date Published: Feb 27, 1982

Citation: 536 F. Supp. 931

Docket Number: Civ. A. P-81-49-CA

Court Abbreviation: E.D. Tex.