NOEL, District Judge:
Plaintiffs ask this Court to abolish House Bill 195, Acts of the 59th Legislature, Regular Session, 1965, c. 351, which reapportions
The issue now is not whether, but how, to reapportion Texas for the election of its House of Representatives. Plaintiffs vigorously urge that all members of the House should, indeed must, be elected from single-member districts. Plaintiffs press upon the Court their own single-member district reapportionment plan.
Plaintiffs attack the plan of House Bill 195 on various constitutional grounds. But their ultimate thrust is for judicial sanctions which would substitute plaintiffs' plan of single-member districts, only, for the Legislature's combination plan of House Bill 195.
The Court holds that House Bill 195 does not violate the federal Constitution, except as it causes dilution of voting strength in the eleven flotorial districts. The Court declares the Bill federally unconstitutional as to the flotorial districts solely because it dilutes the voting rights of those citizens living in such districts who are permitted to vote for only one legislator. But the Court expressly rejects plaintiffs' contentions that the combination plan of House Bill 195 constitutes an unlawful scheme to minimize the voting strength of or to disenfranchise certain racial and political elements.
The Prior and Present Proceedings
The present proceedings are in continuation of the suit instituted July 15, 1963 by some of the plaintiffs. In the first round, plaintiffs attacked the state legislative apportionment statutes
The Court declined to grant plaintiffs' requests for injunctive relief and an oral hearing. The Court retained jurisdiction and provided that in the event the Legislature had not enacted a constitutionally valid legislative apportionment scheme by August 2, 1965, plaintiffs might petition the Court for further relief. Plaintiffs have returned for that purpose.
The positions of all present parties as well as amicus curiae are set forth in Appendix "A."
At the invitation of the Court, counsel attended the pretrial conference held on July 28, 1965 in the companion case involving congressional reapportionment.
The pretrial order specifies the issues for decision as:
An evidentiary hearing was held on October 14, 1965. The evidence presented consisted of stipulations, depositions, maps, charts, statistical tables, certified copies of the election statutes from numerous states, and election returns. No witnesses testified in person. Counsel orally summarized the essential testimony contained in the various depositions. Trial briefs were received and extended oral arguments were heard.
Shortly after the hearing, the Court through its Clerk invited counsel to submit additional briefs and written arguments regarding possible remedies in the event the Court should find any of the eleven flotorial districts created in H.B. 195 to be in violation of the Equal Protection Clause, and therefore invalid. In response to this invitation, counsel for plaintiffs filed their Supplemental Brief on November 24, 1965, directed to "new considerations, substantive as well as remedial." The Attorney General of Texas replied to this new brief on December 16, 1965. The case is now ripe for decision.
The expansion of plaintiffs' Supplemental Brief to cover the new issue was undoubtedly occasioned by an objection to plaintiffs' evidence made by defendants, and questions asked by the Court at the oral hearing. The issue will be deemed to have been incorporated in the pretrial order as follows:
For simplicity of reference, the Court will refer to these issues as: (1) population disparity, (2) gerrymandering (which is divided into political and racial), (3) Negro disenfranchisement, (4) "crazy-quilt" apportionment, and (5) burden of proof. Also, for simplicity and a degree of brevity, much important material, including elaboration of the Court's views, has been placed in the notes.
The Court has jurisdiction pursuant to 28 U.S.C.A. Sections 2281 and 2284, and retains continuing jurisdiction of the subject matter under 28 U.S. C.A. Section 1343(3). The classes specified are properly before the Court and the parties plaintiff, as well as those aligned as plaintiffs, have standing to sue.
Because of its basic import and critical effect on plaintiffs' case as now postured, involving what they characterize as "a virgin and ill-defined area of the law," we first turn to the basic principles involved in Issue 5.
Burden of Proof
Plaintiffs' contentions will be taken verbatim from their Supplemental Brief. At the outset, they outline in three steps their conception of "the proper basis for the judicial review of legislative reapportionments in terms of federal constitutional standards," and immediately thereafter furnish their guide for placing the burden of proof, and erection of
In short, plaintiffs argue that it is the burden of defendants to legitimize and justify apportionment departures from a strict population standard unless de minimis, but they do not set out the limits of de minimis. In response, defendants argue that "The basic difference between the parties on this issue comes down to a disagreement as to the point at which a presumption of invidiousness arises." Defendants contend that variations in H.B. 195 ranging from 15% above average to 15% below average are within the limits of the Legislature's unreviewable discretion, or in plaintiffs' terminology, the Legislature has a 30% range of deviation which is de minimis, and that "* * * the presumption [of invidiousness] does not arise if the deviation is less than 15%."
These arguments will be treated later, but here we shall deal with the basic principles involved and plaintiffs' theory "that once plaintiffs show that the Legislature could have devised an apportionment scheme with a lessened range of deviation from the ideal, and within the same system established by State policy, that the scheme is presumptively invalid and the burden of proof shifts to the proponents thereof."
The issue of the burden of proof has not been squarely raised in any of the recently decided reapportionment cases, undoubtedly because the disparities involved were invidious per se. But henceforth, the questions for decision will likely be more refined. We are here assaying the constitutionality of a statute passed for the express purpose of complying with the requirements of the Equal Protection Clause. We should decide this important question which involves
In neither Reynolds, supra, nor Roman v. Sincock, 377 U.S. 695, 84 S.Ct. 1449, 12 L.Ed.2d 620 (1964), important recent authority, did the Court have before it this question. Hearing and decision of reapportionment lawsuits are governed by the time-honored rules of constitutional law, procedure, and statutory construction. Reapportionment suits in this respect are not sui generis. Therefore, these rules will be reviewed.
The party assailing the constitutionality of a statute has a heavy burden of persuasion, the more so because it may prove very tedious. The phrase "presumption of constitutionality" is frequently used with regard to challenged statutes, sometimes as an ordinary presumption in the evidentiary sense.
The Court interprets the foregoing language of the Supreme Court, when read in context with the opinions from which it is taken and the applicable basic principles, as providing the guidelines for placing the burden of proof in this or any other state legislative reapportionment case, as follows:
Plaintiffs' contention that any population deviation above a de minimis figure from exact population equality raises a presumption of unconstitutionality, lacks Supreme Court authority. The language quoted from page 579 of Reynolds, 84 S.Ct. page 1391, upon which they rely, does not support their assertion of its dictate.
In the context of the legislative reapportionment cases, the United States Supreme Court has struck down statutes in which the ratio of the population in the largest district to the population in the smallest district was 12.7 to 1,
Such language could be read to indicate that any reapportionment scheme containing a district which gives the weight of the vote in that district twice the weight, or more, of the weight of the vote in the smallest district in the state would be constitutionally defective, in fact; that is, invidious per se.
However, the final opinion in the reapportionment group decided by the same Court on the same day as Reynolds must be considered. It helps in refining the teaching of Reynolds. In Lucas v. Forty-Fourth General Assembly of State of Colorado, 377 U.S. 713, 84 S.Ct. 1459, 12 L.Ed.2d 632 (1964), the challenged plan of apportionment contained a ratio of deviation in the State House of Representatives between the largest district and the smallest district of 1.7 to 1. 377 U.S. at 727, 84 S.Ct. at 1469. The Court observed at two places in that opinion that the House of Representatives was at least arguably apportioned substantially on a population basis.
If the deviation, divergence or disparity, the label used being of no significance, does not come within the per se classification of Reynolds; Davis;
If the reviewing court determines that the ratio of deviation in a state apportionment statute is not de minimis, but on the other hand it determines that such deviation does not cause invidiousness per se, then the presumption of its constitutionality will be the postulate of adjudication. People of State of New York v. O'Neill, 359 U.S. 1, 79 S.Ct. 564, 3 L.Ed.2d 585 (1959).
In addition to the presumption of validity, the presumption of reasonableness is with the statute, Salsburg v. State of Maryland, 346 U.S. 545, 74 S.Ct. 280, 98 L.Ed. 281 (1954); and this presumption continues until the contrary is "shown beyond a rational doubt," F. H. A. v. Darlington, Inc., 358 U.S. 84, 91, 79 S.Ct. 141, 3 L.Ed.2d 132 (1958), despite the fact that in practice the law in question may result in some inequality. McGowan v. State of Maryland, 366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961). Some inequality is permissible in the area of reapportionment. Reynolds v. Sims, 377 U.S. at 578, 84 S.Ct. at 1390.
Indeed, in this area of permissible deviation, the presumption of invidiousness for which plaintiffs contend does not exist.
A federal court does not sit in a reapportionment case as a superlegislature. The presumption of constitutionality with which a statute comes before a court for review bars the Court from lightly choosing that reading of the statute which will invalidate it, over that which will save it. Flemming v. Nestor, 363 U.S. 603, 80 S.Ct. 1367, 4 L.Ed.2d 1435 (1960).
Defendants are not here in a position of having to justify the constitutionality of H.B. 195, but instead plaintiffs must demonstrate that defendants cannot explain its provisions on any rational ground. As the Supreme Court has said:
To prevail, plaintiffs must show that no reasonable explanation for the population deviations exists which will sustain the constitutionality of H.B. 195.
Procedurally, the case moves as follows: (1) because of the presumption of the constitutionality of H.B. 195, plaintiffs have the initial burden of going forward with evidence to demonstrate an existing population disparity between districts; (2) if no per se invidiousness exists, then plaintiffs have the burden of persuasion in negating the existence of any reasonable, and therefore not arbitrary consideration which would justify the existence of minor population disparities, because this fact is essential to their case; and (3) if there are conflicting inferences to be drawn from the evidence offered by plaintiffs or defendants or both, the fact-finder has the responsibility to choose among the disputed inferences. A court is not compelled to draw an inference of unconstitutionality if there is evidence that the inference of constitutionality is "equally, or more, persuasive." Wright v. Rockefeller, 376 U.S. 52, 57, 84 S.Ct. 603, 11 L.Ed.2d 512 (1964).
In summary, the answer to the question posed in Issue 5 is that the law does not recognize a presumption of unconstitutionality of a state statute as measured by the Equal Protection Clause. The presumption is always in favor of the constitutionality of the statute, albeit the reviewing court after considering all of the evidence may determine that the attacking party has proved such invalidity. Neither the burden of proof which we find to be the burden of persuasion, nor the burden of going forward with the evidence, shifts to the defendants when the reapportionment review involves an alleged deviation which exceeds de minimis but which is less than what the Court finds to be invidious per se, upon it being shown by the plaintiffs that the Legislature could have devised an apportionment scheme with a lessened range of deviation from the ideal within the same system established by State policy.
With this preliminary, but nonetheless important subsidiary question settled, we shall proceed to consideration of the case upon the merits.
Proceeding now to the four issues delineated in the pretrial order, the first to be determined concerns population disparity between districts and whether because of their place of residence certain citizens suffer dilution of their votes in violation of the Equal Protection Clause. This question will be treated first as to flotorial districts, and second as to districts other than flotorial.
A. Flotorial Districts
The Constitution of the State of Texas authorizes the use of flotorial districts.
The evil is not inherent in this type of district, but in the discrimination resulting from use in the particular manner of H.B. 195.
The Supreme Court of the United States has indicated that the use of flotorial districts may be permissible in the apportionment of one of the houses of a bicameral state legislature, in Reynolds:
The critical definition of a flotorial district, as understood by the Supreme Court, appears in a footnote in Davis v. Mann, 377 U.S. 678, at 686 n. 2, 84 S.Ct. 1441, at 1445 (1964): "The term `floterial district' is used to refer to a legislative district which includes within its boundaries several separate districts or political subdivisions which independently would not be entitled to additional representation but whose conglomerate population entitles the entire area to another seat in the particular legislative body being apportioned." (Emphasis added.) Bearing in mind that the Court speaks in terms of additional representation, the flotorial district must satisfy the clear command of Reynolds that holds: "Whatever the means of accomplishment, the overriding objective must be substantial equality of population among the various districts, so that the vote of any citizen is approximately equal in weight to that of any other citizen in the State." 377 U.S. at 579, 84 S.Ct. at 1390.
The Supreme Court used the example of Lynchburg, Virginia, to illustrate its concept of a flotorial district in Davis, 377 U.S. at 686 n. 2, 84 S.Ct. at 1445. This example has the value of an illustration only. It cannot be considered an example of a valid flotorial district because the Court in that opinion held the statute which created the district to be unconstitutional. In the final analysis, the sole authoritative guideline from the Supreme Court is that of Reynolds which applies to all voting, irrespective of the kind of district in which it is done,—it is that the vote of any citizen must be approximately equal in weight to that of any other citizen in the state.
Plaintiffs allege that these flotorial districts effect such an extreme dilution of the votes of the residents of certain counties that these districts are unconstitutional per se under Reynolds. Inasmuch as there are deviations from
The first example is District 46F which has the greatest population variation of the eleven challenged districts. The composition of District 46F includes Nueces County, with a population of 221,573,
necessary to elect one Representative to the House of Representatives. It is self-evident that the potential value of the votes of the residents of Kleberg County equals not ½ of District 46F, but instead
necessary to elect the sole Representative for whom they can vote. Thus, the vote of a resident of Kleberg County is diluted so that it only has 25% of the weight that it should ideally have.
The second example is District 20F, which has the least population disparity of the eleven challenged districts. The composition of District 20F includes Brazoria County with a population of 76,205 and Fort Bend County with a population of 40,527. Fort Bend County, the "appurtenant" county, has no representation in any district other than District 20F. Brazoria County, the "dominant" county, alone constitutes District 19, which is allocated one place, so the 116,731 inhabitants of these two counties elect two Representatives, in all. The ratio of this district to District 20F, the least populous in the State, is 2.13 to 1. Although this is the lowest ratio of any of the eleven flotorial districts, such a ratio is invidious per se under Reynolds. The population of 20F deviates from the mean of 63,864 by + 82.8%. Although the votes of the residents of Fort Bend County should equal approximately 2/3 of the total necessary to elect one Representative, they equal only 1/3 ,
The dilution of the value of these votes in the "appurtenant" counties such as Kleberg and Fort Bend denies equal protection of the law to the citizens who reside in these "appurtenant" counties and is impermissible on any ground, the Constitution of the State of Texas and prior history notwithstanding. The vote of any citizen must be approximately equal in weight to that of any other citizen in the State, Reynolds v. Sims, supra, and 50% is not "approximate equality." See Honsey v. Donovan, 236 F.Supp. 8 (D.Minn.1964), and in particular at page 20. As is demonstrated by footnote, valid flotorial districts can be created in Texas pursuant to said Section 26.
Before leaving our review of the flotorial districts, we further find that their composition is based upon more than one hundred years of precedent in Texas. And also, that the discrimination which occurs, invidious though it be, results from a good-faith attempt by the Legislature to meet the requirements of the federal Constitution, the State Constitution, and this Court. This is evidenced by the legislative history of H.B. 195, most of which is contained in the deposition of Honorable G. F. Mutscher taken by defendants and introduced in evidence, first by plaintiffs as their Exhibit 17 and then by defendants as their Exhibit 19. He was Chairman of the Committee on Congressional and Legislative Districts which conducted extensive hearings before undertaking to write the Bill.
Attached to Chairman Mutscher's deposition is an extract from the House of Representatives Journal, pages 3502-3505, under date of May 31, 1965. It is entitled "Remarks by the Honorable G. F. Mutscher Pertaining to House Bill No. 195," which we shall refer to as the "Mutscher report" and treat as the Committee report, since no formal Committee report as such appears to have been printed. The Mutscher deposition and report provide the most reliable evidence in the record as to what was done by the Legislature, and why, in the preparation of H.B. 195.
The Mutscher report explains why the Committee found it necessary to use flotorial districts, and it reflects their computation of the deviations of populations in such districts from the population of an ideal district. For example, Chairman Mutscher says they consist of "two districts with a deviation of more than 10%. * * * Both are 13% below the ideal population." The record is barren of any indication that any Member of the House, or anyone else, thought at that time that the Committee computations were incorrect. Since the Committee was using 15% deviation from the ideal district as its standard, and all districts so computed having met that standard, it is apparent that the flotorials would have been differently constituted had the Committee and the Legislature realized that the deviations in these districts should be computed as found by this Court. The deviations in these districts when computed as this Court finds they should be, were unintended and not anticipated.
To further test the composition of these districts and in considering the remedy to be adopted by this Court, we have hypothesized them as multi-member
By a comparison of the schedule contained in footnote 29 with the one in Appendix "C", it is seen that if the flotorial districts as presently composed were treated as multi-member districts and the remaining districts were left as presently composed, the maximum range of deviation would remain at 26.4% and the population-variance ratio would remain at 1.31 to 1. In other words, if this were done, the maximum range of deviation and population-variance ratio for all districts would remain as they now exist in the remaining districts. And this leads to our examination of plaintiffs' charges of population disparity in the remaining districts.
B. Other Than Flotorial—Remaining Districts:
In their original brief, plaintiffs predicate the unconstitutionality of the remaining districts primarily on the 26.4% maximum range of deviation in population. This maximum range extends from a minus 14.8% to a plus 11.6%, as related to the population of the ideal district. Plaintiffs assert this range to be unreasonable, unnecessary, and invidiously discriminatory. As authority, they cite Reynolds v. Sims, 377 U.S. at 577, 84 S.Ct. 1362 (1964); and, the recent three-judge court decision of Toombs v. Fortson, 241 F.Supp. 65 (N.D.Ga.1965), in which case the variances from the
Defendants say in general that if the population disparity is not manifestly unreasonable—that is, if it does not manifestly constitute invidious discrimination—it is (in the language of defendants' briefing) "within the limits of the Legislature's unreviewable discretion."
While not using the term "unreviewable discretion," plaintiffs generally acknowledge that a deviation of 4% is de minimis and therefore will not be noticed by a reviewing court. Without adopting either defendants' label of unreviewable discretion or plaintiffs' label of de minimis, it would seem that in the view of both plaintiffs and defendants there is a degree of deviation which a reviewing court will consider manifestly reasonable or reasonable per se. Thus, it would appear that the real difference between the parties as to what in the words of plaintiffs is "de minimis" or what in the words of defendants is "within the limits of the Legislature's `unreviewable discretion,'" is the degree of deviation from the ideal district, that is, whether it is 4% or 15%.
Until later elucidation might come from the Supreme Court, the Court in Toombs v. Fortson, supra, said that, for Georgia, it would "base any test as to the reasonableness of variances on the departure figure of 15%." In other words, any variance above 15% would be regarded as invidious per se by the Toombs Court. We do not regard Toombs as authority for holding either that the range of deviation in this case is invidious per se, or that, being less than 30%, it is manifestly reasonable. Perhaps it would be more convenient for plaintiffs and defendants if this Court were to set a maximum limit for reasonableness in deviation or variance, as was done in Toombs. But, in view of (a) the good response made by the Legislature to the Court's first order entered in this case, and (b) the lack of any necessity for doing so, the Court will not set such maximum limit at this time.
By pleading that this Court declare Senate Bill 318
Having set the frame of reference, we return to the particular deviations and ratio of H.B. 195. While not included in plaintiffs' brief, other computations are of significance in considering the maximum deviation in the evaluation of plaintiffs' charge. For example, the average deviation for the remaining districts is 12.7%, extending from a plus 6.01% to a minus 6.7%. The population of and deviations in all of the remaining districts as computed by the Court are shown in Appendix "C." The ratio of the population in the largest of the remaining districts to that of the smallest of such districts is 1.31 to 1.
In order to establish the lowest limit of invidiousness per se for use in our consideration of this case only, we accept the ratio of 1.7 to 1 provided by the Supreme Court in Lucas, supra.
By the Lucas standard, H.B. 195 at least arguably apportions the Texas House substantially on a population basis, and plaintiffs have the burden of persuasion to show that it is not so apportioned. But at the same time and to repeat, we do not hold that the 1.31-to-1 population variance ratio of the Bill, or its maximum deviation of 26.4% or its average deviation of 12.7%, places the Bill beyond the reach of this Court's review as may be contended by defendants.
References to percentages of deviation and ratios from other cases are not dispositive of this case because as the Supreme Court so cogently points out, "What is marginally permissible in one State may be unsatisfactory in another, depending upon the particular circumstances of the case." Reynolds, 377 U.S. at 578, 84 S.Ct. at 1390. The Supreme Court has not established "rigid mathematical standards" for evaluating legislative apportionments, but has observed that, "Rather, the proper judicial approach is to ascertain whether, under the particular circumstances existing in the individual State whose legislative apportionment is at issue, there has been a faithful adherence to a plan of population-based representation, with such minor deviations only as may occur in recognizing
Plaintiffs cite no case in which the total range of deviation in population comparable to the 26.4% and 12.7% in issue here, did not satisfy the command of Reynolds. Diligent research has disclosed no such case.
In following the judicial approach of Roman, supra, this Court will bear in mind the further teaching of the Supreme Court found in Reynolds at page 579 of 377 U.S., at page 1391 of 84 S. Ct., to the effect that "[s]o long as the divergences from a strict population standard * * * based on legitimate considerations incident to the effectuation of a rational state policy [are involved] some deviations from the equal-population principle are constitutionally permissible."
Basic to the consideration of this case is the proposition that any Texas reapportionment statute must first meet the requirements of the United States Constitution and then, to the extent there is no conflict, it must meet the requirements of the Texas Constitution, the applicable provision of which is Art. 3, Sec. 26.
This provision must be interpreted by this Court in order to determine the necessity, if any, for accommodating it to the requirements of the federal Constitution. This involves a question of State law, but our research has revealed no decision in point. The Court must therefore make its own interpretation.
In explanation of H.B. 195 and the State policy it is claimed to effectuate, defendants offered in evidence a copy of the opinion of the Attorney General of Texas dated May 1965, addressed to the Speaker of the House of Representatives.
The Court has concluded that the opinion of the Attorney General (a) correctly interprets the requirements of Section 26, and (b) correctly recognizes that if the keeping of counties intact should result in a violation of the federal Constitution, then the county lines would have to be violated, but only to the extent necessary for such compliance.
In Reynolds the Supreme Court has said that there is no inherent federal constitutional infirmity in the maintenance of county integrity as the basis for legislative districts so long as any population variance between districts is not significant. The Court went on to observe that, "Indiscriminate districting, without any regard for political subdivision or natural or historical boundary lines, may be little more than an open invitation to partisan gerrymandering." 377 U.S. at 578, 579, 84 S.Ct. at 1390. The word "significant" is not defined in the Court's Opinion. This Court will accept the definition in Webster's Third New International Dictionary, which is consistent with Reynolds, as follows:
In this sense, neither the maximum range of deviation, the individual differences in deviation between particular districts, nor the population variance ratio of 1.31 to 1, as such, is significant. Whether or not these differences are important in the light of plaintiffs' claims of political and racial gerrymandering is discussed later.
Returning to our consideration of the deviations and population variance ratios of H.B. 195, plaintiffs rely heavily upon and quote extensively from Calkins v. Hare, 228 F.Supp. 824 (E.D.Mich. 1964), in support of their contention that virtual mathematical equality is necessary for constitutional validity of state legislative districts; and, indeed the language is thoughtful and impressive. But Calkins is a congressional case decided by the United States District Court for the Eastern District of Michigan, before the Supreme Court decided Reynolds, supra. The significance of this timing is that the Supreme Court in Reynolds, a state reapportionment case like this, relaxed the more severe requirement of Wesberry v. Sanders, 376 U.S. 1, 84 S.Ct. 526, 11 L.Ed.2d 481 (1964), which was followed in Calkins by saying, "Somewhat more flexibility may * * * be constitutionally permissible with respect to state legislative apportionment than in congressional districting." Calkins being a congressional case decided by a District Court, and Reynolds having been decided later by the Supreme Court, Calkins is not the beacon to be followed in this state reapportionment case.
In their Supplemental Brief, plaintiffs expand their argument concerning deviation in several different ways, the most significant of which concerns the burden of proof. Plaintiffs argue that this burden shifts to the defending party in an apportionment case when the attacking party shows that a better plan of apportionment could have been achieved. In the previous Section styled Burden of Proof, the Court rejected this concept.
Another argument contained in their later brief proceeds from a candid recognition that certain deviations, which in Supreme Court language they categorize as "minor," may be justified by a constitutionally permissible, rational State policy, if necessarily related to that policy.
Plaintiffs rely upon the Supreme Court language contained in Roman, supra, referred to numerous times in this opinion. The Court, there, used the word "taint" and from it, plaintiffs postulate what they call "the taint rule." But we find no new concept in the so-called taint rule. We are of the opinion that in Roman the Supreme Court simply used the noun "taint" in restating the elementary rule of constitutional law, that a classification having an arbitrary and therefore discriminatory basis violates the Equal Protection Clause. This argument will be evaluated by this elementary rule.
The main factual ground upon which plaintiffs rely to demonstrate the so-called taint of H.B. 195 concerns not ratios or percentages of deviation, which are the criteria of the controlling apportionment decisions, but instead concerns numbers. They argue that Dallas County, with a population of 951,527 is "patently" entitled to 15 Representatives instead of 14. Further, they argue that Bexar County should have received 11 Representatives rather than 10. They show that, arithmetically, the addition of a Representative in each district would almost achieve mathematical perfection, and that it would almost eliminate any deviation whatsoever in these districts. Plaintiffs query, "What possible `rational' and constitutionally permissible policy of State prevented the Texas Legislature from giving [these districts] the * * * representatives [their] population demanded?"
The answer is contained in their own evidence, the Arnold Foundation Monograph,
The Legislature did the same in their attempt to maintain county integrity within permissible limits of deviation. In his cross-examination, Chairman Mutscher explained their solution to these differences. He testified generally "that tolerances in some cases had to be adjusted in favor of the metropolitan areas and sometimes the other way." As to Dallas County, he testified that "After working with the delegation and trying to accept the advice that they had to pass on to us, they felt that the fourteen was a reasonable figure." Thus, in preparing its plan, the Legislature encountered substantially the same problems encountered by those who prepared the plans approved by plaintiffs, and went about solving these problems in much the same way.
For the purpose of further evaluating this argument concerning the claimed underrepresentations and overrepresentations, they have been tabulated in Table
Table 1 District County Complained of by Plaintiffs% Under- % Over- representation representation22 Harris 0 7.0 33 Dallas 7.0 0 57 Bexar 8.0 0 Percentages taken from Plaintiffs' Exhibit No. 4. ------------------------------------------------------------- ------------------------------------------------------------- Table 2Approved by Plaintiffs Proposed -------------------------------------------------------- Proposed County Plaintiffs' Plan *PARC "A" **PARC "B" *** District Composition Representation Representation Representation Over Under Over Under Over Under33 Gregg 0 8.7 96 Medina et al. 6.9 0 ------------------------------------------------------------------------------------ 17 Van Zandt 0 10.8 et al. 47 Bandera et al. 9.6 0 ------------------------------------------------------------------------------------ 14 Van Zandt 0 10.8 et al. 60 Potter 9.6 0 ------------------------------------------------------------------------------------
The percentages of underrepresentation complained of in Districts 33 and 57 of H.B. 195 as shown in Table 1 are conspicuously less than the percentage of underrepresentation urged by plaintiffs as constitutional for Gregg County (their proposed District 33) under their plan as shown in Table 2; and, the percentage of overrepresentation in District 22 is substantially the same (6.9% compared with 7.0%) urged by plaintiffs as constitutional for Medina and other counties (their proposed District 96). Also, the percentages complained of in the three H.B. 195 districts are substantially less than those which plaintiffs find constitutional in PARC Plans "A" and "B" for the counties shown in Table 2.
The three plans referred to in Table 2, which find such favor with plaintiffs, were prepared by experts in the field of government, working in the calm atmosphere of their academic pursuits. Their work was tedious and extended over long periods of time. Even with such care in preparation, these experts found it necessary to create districts containing underrepresentations and overrepresentations of the magnitude set forth in Table 2. The Court finds in the testimony of these experts and in their product, as well as in the testimony of Chairman Mutscher, a reasonable explanation and justification for the minor deviations of which plaintiffs here complain, in Districts 22, 33, and 57.
Next, in their Supplemental Brief plaintiffs urge their postulated "best plan rule" which we have not found articulated either as a new constitutional doctrine or as a gloss on an old doctrine. In their Supplemental Brief plaintiffs concede that the State policy to maintain county integrity in reapportionment "is an instance of a rationally and constitutionally permissible State policy which may justify population departures of a minor nature as necessarily related to that policy." But in the final analysis, this argument of plaintiffs proceeds on the premise that the deviations of H.B. 195 really are not of a minor nature.
The Court understands their best-plan-rule argument to be as follows:
This argument does not complain of the magnitude of the maximum or average range of deviations, or of the ratio of variance in population contained in H.B. 195, as was done in their first brief. Their argument here seems to be made in the alternative, but we regard it as being embraced within the attack last above mentioned, as to which we have held adversely to plaintiffs' position. But more importantly, in reviewing the validity of an apportionment statute, it is not within the reach of the Court's inquiry to determine which is the better or best, wiser or wisest, of two or more apportionment proposals.
The only function of this Court is to gauge the validity of an apportionment as adopted by the Legislature, by the requirements of the federal Constitution for which the best plan search is not appropriate. Whether or not the Legislature might have made a better or wiser choice than H.B. 195 is not a justiciable question because there is no judicially discoverable and manageable standard for reviewing the legislative choice as between one or more apportionment plans. Baker v. Carr, 369 U.S. 186, 217, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962); Coleman v. Miller, 307 U.S. 433, 454-455, 59 S.Ct. 972, 83 L.Ed. 1385 (1939).
The concern of the federal Constitution, and therefore of this Court, is not that which might have been done, but that which was done. Sincock v. Roman, 233 F.Supp. 615, at 619 (D.Del.1964), and Boineau v. Thornton, 235 F.Supp. 175, 182 (E.D.S.C.1964). We quote with approval from the Opinion of the Court in the latter case:
In conclusion, we find (1) that plaintiffs' have not discharged their burden of proving the remaining districts unconstitutional; and (2) that plaintiffs' evidence demonstrates that under the circumstances existing in Texas, the remaining districts provided for in H.B. 195 represent a faithful adherence to a plan of population-based representation and that they contain only minor deviations which the Court finds to be reasonable and therefore not arbitrary. Accordingly, the Court concludes that the remaining districts do not violate the Equal Protection Clause of the United States Constitution.
Plaintiffs contend that the apportionment of Texas into single-member, multi-member and flotorial districts, rather than into single-member districts only, is the arbitrary, capricious result of gerrymandering, for partisan advantage and that "their use constitutes a scheme designed to minimize or cancel out the voting strength of racial and political elements (i. e., the Republican Party, liberal democrats and the Negro race) within said districts." They claim that the combination plan of H.B. 195 results in constitutionally proscribed political and racial gerrymandering, which are embraced in Issue 2 and we shall take up first the claim of political gerrymandering.
Although the etymology of the gerrymander is known,
The right protected is the right to vote, which is a personal right,
The philosophy of Reynolds is the protection of the rights of individuals. "Legislators represent people, not trees or acres. Legislators are elected by voters, not farms or cities or economic interests." 377 U.S. at 562, 84 S.Ct. at 1382. It is well to add that votes for legislators are not cast by political interests as such, but by individuals—people. As said by the Supreme Court:
In support of their contention of political gerrymandering, plaintiffs offered evidence purporting to show voting histories of certain areas, this for the purpose of demonstrating that if single-member districts were used, then a certain number of candidates of one party or another would be elected. These voting histories, however, do not prove that a certain area is Republican or Democratic, or liberal, conservative, moderate, or any other type Republican or Democrat, at any given time, but instead graphically point out the evanescence of a prevailing philosophy or political belief in particular areas of a community. The only demonstrable way available to fathom the political inclinations of a certain area at any given time is at the ballot box on a given election day.
The best example of this is Dallas County. According to the plaintiffs' interpretation of voting histories, a majority of the voters of Dallas County were Republicans in 1962 but were Democrats in 1960 and 1964.
A three-judge Court in Alabama observed:
This Court concludes that plaintiffs' allegation of political gerrymandering does not state a claim upon which relief may be granted. WMCA, Inc. v. Lomenzo, supra. And further, the Court finds that the record contains no evidence of probative force tending to support the factual allegations which plaintiffs make in support of their claim of political gerrymandering.
B. Racial Gerrymandering
Plaintiffs charge that the multi-member and flotorial districts are the result of ulterior motive and sinister design and that they are "the arbitrary and capricious result of gerrymandering for partisan advantage" and "a scheme designed to minimize or cancel out the voting strength of racial * * * elements (i. e., * * * the Negro race)," each in violation of the Equal Protection Clause of the Fourteenth Amendment.
Attacks upon an apportionment plan which allege that the Legislature harbored the sinister design of racial discrimination are familiar.
The racial gerrymandering charge stems from the dicta in Fortson v. Dorsey, supra, which observes that:
But plaintiffs have not demonstrated here that H.B. 195 effectively minimizes, cancels out, or even affects, the voting strength of any racial element. As a matter of fact, such a demonstration would be very difficult, if not impossible, before any election is held under the Bill. The Court has carefully reviewed the record related to this serious charge and finds as a fact that it does not contain a scintilla of probative evidence to substantiate plaintiffs' charges of racial gerrymandering. The testimony offered by plaintiffs in this area is highly conjectural and to the extent it proves anything, it tends as much to disprove as to prove the existence of such gerrymandering.
The testimony of C. B. Bunkley, an attorney from Dallas and a member of the Negro race, supports this finding of fact. Mr. Bunkley is politically experienced, having been a candidate for the Dallas City Council in 1959 and 1965. He testified that to his knowledge there had never been a successful Negro candidate for a city-wide office in Dallas, and based upon this, concluded that multi-member districts operate virtually to cancel out the voting strength, as measured by the opportunity to elect a Negro to office, of Negro elements in Dallas. He did not state explicit facts which would prove racial discrimination in the use of
Representative G. F. Mutscher, who served as Chairman of the Congressional-Legislative District Committee of the 59th Legislature and whose deposition was offered in evidence by plaintiffs, supra, made the following statements which are uncontradicted:
Plaintiffs' witness Dr. Clifton McCleskey testified that "* * * if one set out to draw single representative districts to achieve * * * the end of electing * * * negroes, [he thinks] this would be in and of itself a wrong application and approach." Since Dr. McCleskey is a professor of political science, we construe this testimony as meaning that in his opinion the federal Constitution would not permit drawing districts with the express purpose of electing members of any particular race.
Although Dr. McCleskey observed that one of the consequences of the use of multi-member districts is to submerge any minority elements within such a district, when read in full text it is clear he did not hold the opinion that multi-member districts were inherently unconstitutional, or that they caused H.B. 195 to be invalid. This is obvious from his use of both single-member and multi-member districts in his own PARC Plans, offered by plaintiffs as model plans for reapportionment. Dr. McCleskey also testified that one of the consequences of a single-member district plan, such as proposed by plaintiffs, would be to segregate Negroes from other voting groups and thus enhance their opportunity for election to office, but again, he did not suggest that such a plan would cause invalidity. Dr. McCleskey further testified that neither consequence should be the purpose of the Legislature. He did not purport to testify as to the intent of the Legislature and, although pressed, would not state that the Legislature intentionally used multi-member districts to submerge the votes of Negroes. In summary, Dr. McCleskey's "* * * position is that one should start with a principle for drawing boundary lines and apply that [principle], no matter what the consequence." As we view the Doctor's testimony, it was concerned with how best to reapportion, not whether or not the reapportionment of H.B. 195 resulted in racial gerrymandering.
Samuel B. Hamlett, called by plaintiffs and also discussed above, expressed the opinion by deposition that the use of multi-member districts submerged the voting strength of racial elements and made it difficult for this group to find expression through representation in any kind of member-at-large scheme. He also testified that, to his knowledge, no Negro had been elected to the State Legislature from Tarrant County since the Reconstruction period. Nowhere did he testify that the Legislature intentionally utilized multi-member districts to submerge the voting strength of Negroes or that H.B. 195 dilutes the weight of their vote numerically. He did not mention the long
No witness testified that racial considerations motivated the Legislature when it drew the district lines of H.B. 195, and the Court will not infer the existence of such a sinister motive in the action of the Legislature without clear proof thereof. No one testified that H.B. 195 dilutes the weight of the votes of Negroes as a race or as individuals in a manner different from any other group of citizens located in the same district.
Here, however, the testimony of plaintiffs' witnesses Bunkley and Hamlett argues in terms of voting strength of racial elements, which these witnesses seem to view, not as a right of equality in the weight of votes, but as a right to be represented by a person of one's own race. This is an erroneous legal premise, as shown by Dr. McCleskey's testimony and the authorities.
The pertinent constitutional provision for the allegation of racial gerrymandering is the Fourteenth Amendment which provides in Section 1: "* * * [N]or shall any State * * * deny to any person within its jurisdiction the equal protection of the laws." Case law adds the judicial gloss that a classification based solely upon race, creed, color or nationality constitutes an invidious discrimination which violates the Fourteenth Amendment.
Equal protection does not require formation of all single-member districts in a state's legislative apportionment scheme. Fortson v. Dorsey, supra. The use of multi-member districts is not unconstitutional on the ground that it deprives Negro citizens of a chance to elect a member of their race. Mann v. Davis, (U.S. Oct. 26, 1965).
As Dr. McCleskey clearly implied in his testimony, a plan drawn to favor or satisfy the demands of a particular racial group or element would be seriously constitutionally suspect, just as it would be unlawful to draw a plan intentionally to dilute their votes. In another case involving an allegation of racial gerrymandering, Mr. Justice Douglas, in dissent,
Thereafter, a three-judge court in Virginia, commenting upon the identical issue, answered the contention thusly:
The Supreme Court gave this language added weight, by affirming. Sims v. Baggett, 247 F.Supp. 96 (M.D.Ala.1965), which involved a charge of racial gerrymandering, was not cited in support of this charge by plaintiffs, and correctly so. We have examined that case on this point and find it clearly distinguished by its facts.
Viewed in the above light, the inherent weakness in this complaint of racial gerrymandering is apparent. There is no way to determine how many recognizable races, creeds or colors exist,
To measure this position in this light, it must be borne in mind that the Legislature would likewise have to provide similarly for "creeds" and "nationalities." In attempting to use this theory as a guideline, this Court could identify more combinations of races, creeds, and nationalities present in Texas today whose
Returning to the testimony of Mr. Bunkley and Professor Hamlett to the effect that multi-member districts make the election of Negroes more difficult, which is their reason for asserting that the voting strength of Negroes is submerged, it is appropriate to point out that the prior apportionment statute which this Court held invalid discriminated harshly against the metropolitan areas, generally.
H.B. 195 increases the representation of the metropolitan areas by 16 Representatives, or 46% over the prior statute, as follows:
Harris County - from 12 to 19 Representatives Dallas County - from 9 to 14 Representatives Bexar County - from 7 to 10 Representatives Tarrant County - from 7 to 8 Representatives
Although Negroes have not been elected from these metropolitan areas in recent years, which fact may be due in large part to the extreme dilutions present in these areas, undoubtedly both of these informed witnesses were aware of the history of the election of Negroes to the Texas Legislature from multi-member districts. The Court will judicially notice this history of the composition of the past membership of the Texas House of Representatives,
Additionally, apportionment of both houses of a bicameral state legislature is relevant to the Court's consideration of this claim. Maryland Committee for Fair Representation v. Tawes, supra. Plaintiffs allege that it would be difficult to elect a Negro to the Taxas House without a single-member district plan. The Senate, which also provides effective representation for its constituency, is apportioned on a single-member district basis by S.B. 547, increasing metropolitan representation by 7 Senators, or 175% over the prior statute, as follows:
Harris County - from 1 to 4 Senators Dallas County - from 1 to 3 Senators Bexar County - from 1 to 2 Senators Tarrant County - from 1 to 2 Senators
The Senate plan, which divides these metropolitan areas internally into single-member districts, should give Negroes and persons similarly situated in many of these districts excellent opportunities to elect a member of their race to the Legislature.
The Court finds as facts that H.B. 195 was not intended to constitute a scheme to minimize or cancel out the voting strength of the Negro race, that it does not do so, and therefore, it does not have the effect of discriminating against the Negro race. On the other hand, the Court finds, as shown by the legislative history, that the Legislature had as its purpose in passing H.B. 195 to distribute the 150 seats of the House of Representatives into districts of contiguous and compact territory with substantially equal population "to meet the criteria of the Federal Court."
We turn now to plaintiffs' Fifteenth Amendment charge that Negro disenfranchisement results from the use of multi-member and flotorial districts. In this connection, it is significant that the Supreme Court has expressly held that multi-member districts are not per se discriminatory.
In the broad governmental sense, a franchise is a right or privilege conferred by grant from a sovereign or a government and vested in an individual or group. Typically, such a right is constitutional or statutory. As is generally understood in the United States, the franchise is the personal right of the qualified individual to vote. Plaintiffs charge that H.B. 195 despoils this right, in violation of Section 1 of the Fifteenth Amendment, which provides:
To support this charge, plaintiffs rely upon Gomillion v. Lightfoot, supra, which involved a change in the municipal boundaries of Tuskegee, Alabama, by the State Legislature of Alabama. Whereas, its previous shape was a square, the resultant 28-sided figure created by the legislative action eliminated from the city
But the facts involved in Gomillion readily distinguish the action of the Alabama Legislature found to be invalid, from the action of the Texas Legislature evidenced by H.B. 195. In Alabama, Negroes who previously had had the right to vote in the municipal elections of Tuskegee suddenly had that right denied by a change in the boundaries of the city. Whereas, before the change they had had the municipal franchise to vote, the change in boundaries removed this franchise. Negroes no longer could participate in a municipal election of Tuskegee, and the Court stated:
House Bill 195 does not alter, but on the other hand continues, (1) the pattern of single-member and multi-member districts authorized and used for the first apportionment of Texas by the Constitution of 1845; or (2) the pattern of single-member, multi-member or flotorial districts specified in the first apportionment act of the Texas Legislature which was passed in 1848.
House Bill 195 does not suddenly redefine any previous urban area boundary. Indeed, the boundaries of the multi-member districts which embrace three of the four major urban centers—Dallas, Tarrant, and Bexar Counties—are identical with those which have obtained for several decades. And the fourth, Harris County, now merely embraces three districts rather than the previous one district, for the reasons explained by Representative Mutscher in his deposition offered in evidence by the plaintiffs. The three internal divisions of Harris County follow the congressional district lines which were set up in the congressional redistricting act. These congressional district lines were not attacked as such in Bush. Had there been thought to be any maldistribution or disenfranchisement of Negroes involved in redistricting Harris County for congressional purposes, we believe it safe to assume that the question would have been raised in the ably prepared and presented case of Bush.
The reapportionment of the Texas Senate following the Court's prior action in this case has not been attacked, and we therefore assume that plaintiffs deem it to meet the constitutional standard of "one man, one vote."
Therefore, on this charge of Negro disenfranchisement, the Court makes the same findings of fact and conclusions of law heretofore made in response to plaintiffs' charge of racial gerrymandering.
The plaintiffs' final challenge to H.B. 195, germane to Issue 4, is the allegation that it "contains a needless mixture of multi-member, flotorial, and single member districts, which reapportion the 150 House seats in a `crazy quilt' manner completely lacking in rationality, and it thus unconstitutional on this ground alone." The plaintiffs look not to the opinion of the Court but to an adjective phrase contained in the concurring opinion of Mr. Justice Clark in Baker v. Carr, supra, for this theory. In 369 U.S. at 258, 82 S.Ct. at 732 he remarked: "The discrimination here does not fit any pattern—as I have said, it is but a crazy quilt." The Court finds that H.B. 195 does not constitute a "crazy quilt" scheme of apportionment and once again emphasizes that the test for validity of an apportionment statute under Reynolds is substantial equality of population, which H.B. 195 satisfies except for the limited aspect already indicated.
It does not appear to the Court that Mr. Justice Clark intended his concurring opinion in Baker to create a new standard for measuring the constitutionality of an apportionment statute. His concurrence utilizes the legal shorthand of "crazy quilt" but provides no new theory of invalidity.
Plaintiffs argue that the combination plan of H.B. 195 is arbitrary and capricious because in certain districts a candidate for the Texas House must appeal to a larger number of people than a candidate for the United States House or a candidate for the Texas Senate, and that "historically, the framework of Texas State Government has always envisioned a system whereby one State Senator represents a larger area and a greater number of people than does one State Representative." However, such is not a fact. The Constitution of 1869, in Article 3, Sections 39 and 40, created 30 districts, each of which received one Senator and two or more Representatives.
Plaintiffs also challenge the use of flotorial districts under the same theory. However, inasmuch as these districts as presently constituted are invalid, the Court will not discuss them extensively here except to note their historical longevity.
Further, the reapportionment statute of 1848
Finally, the record does contain rational explanations for the use of these various types of districts.
Additional legitimate factors considered by the Legislature reflect a rational, permissible State policy underlying the use of multi-member districts:
As noted earlier, there is no constitutional infirmity inherent in the use of either multi-member districts in which the candidates are elected on a county-wide basis, Fortson v. Dorsey, supra; or, in flotorial districts, Reynolds v. Sims, supra; or, in single-member districts, Reynolds, 377 U.S. at 577, 84 S.Ct. at 1389, or, in a combination of such districts, Reynolds, 377 U.S. at 579, 84 S.Ct. at 1390.
Senate Bill 547, which reapportions the Senate of the State of Texas, utilizes single-member districts only, so that the entire scheme of apportionment of the State of Texas comports with the permissible policy implicit in the Court's opinion in Reynolds; i. e., it utilizes single-member districts in one house and achieves flexibility in the other. Inasmuch as there is the presence of a rational state policy which commends the scheme of apportionment in Texas, and there is the absence of any significant population disparity beyond the flotorial situation, the plaintiffs' "crazy quilt"
The Ewing group of intervenors complain of the method used in H.B. 195 to allocate Representative Districts to Harris County. The Legislature did not create a single multi-member district in Harris County, but instead created three multi-member districts within the county limits, in which districts the candidates run at large. The shape of these three districts conforms to the boundaries of the Congressional Districts concurrently established for Harris County. The Legislature apportioned Harris County in this manner pursuant to the policy of H.B. 195 which limits the size of any multi-member district to fifteen Representatives.
One very practical purpose of this latter limitation is to avoid overtaxing the capacity of the voting machines by limiting the size of a multi-member district to a reasonable population. The presence of more than fifteen names on a ballot would require the use of two machines to accommodate all of the candidates, and this result would increase enormously the expense of a general election in Texas. The policy will apply equally to all counties which attain a population of 1,000,000 or more, so this system is not an arbitrary discrimination toward Harris County. This is not an irrational state policy by any standard; and in the absence of substantial population disparity between these districts, the system is within the protective language of Reynolds, 377 U.S. at 579, 84 S.Ct. at 1391.
For all of the reasons previously mentioned which justify the use of multi-member districts, plus the additional practical reason of limiting the load on the voting machines, this Court holds that House Bill 195 does not deny equal protection of the laws to these intervenors from Harris County.
Because of the inequities present in the flotorial districts, this Court must correct this particular situation. It is appropriate that the Court should delineate here the basic premises governing the remedy that it will utilize.
The matter of remedy is within the bosom of a court of equity, and this proceeding requires the formulation of a solution which draws its vitality and efficacy from its peculiar propriety for apportionment of the Texas House of Representatives. That the Supreme Court of the United States left the matter of remedy to the discretion of the trial court seems clear. In Reynolds v. Sims, which is the lodestar in this area, the Court did not consider "* * * the difficult question of the proper remedial devices which federal courts should utilize in state legislative apportionment cases. Remedial techniques in this new and developing area of the law will probably often differ with the circumstances of the challenged apportionment and a variety of local conditions." 377 U.S. at 585, 84 S.Ct. at 1393. (Footnote omitted.)
The Supreme Court did not set any explicit limits upon the trial court's discretion in the matter of remedy in any of the major decisions rendered with Reynolds v. Sims.
Thus, this Court finds no authoritative expression which limits it in fashioning the remedy which it deems appropriate in the circumstances. The customary concepts of equitable discretion will be utilized, both as to the manner and timing of relief.
The Court solicited comment from the parties concerning a decree similar to the one of Toombs v. Fortson, 241 F.Supp. 65 (N.D.Ga.1965). There, the Court held that the proposed plan of apportionment of the Georgia state house of representatives, though constitutionally insufficient, would be accepted as an interim plan and the legislature would be given an opportunity to reapportion Georgia properly by May 1, 1968.
Plaintiffs strenuously oppose such a decree on two grounds:
The Court cannot agree, for reasons which follow.
The 1961 apportionment act, originally attacked by plaintiffs and set aside by this Court, contained flotorial districts, but plaintiffs did not challenge their validity in the original complaint. At that time plaintiffs did not intimate (a) that this type of district was inherently discriminatory, (b) that the use of flotorial districts resulted in an invidiously discriminatory population disparity,
Now, what has just been said is not intended as criticism of the motives or conduct of any of plaintiffs, particularly the Member plaintiffs who undoubtedly had good reasons for not doing so. But these facts do have bearing, indeed persuasion, upon this Court which has the duty to do equity between all parties in fashioning its remedy. Had even the possibility of the defect in the flotorial districts been pointed out to the Legislature, it could have been cured very simply by requiring all Members from these districts to run at large as in any other multi-member district.
Concededly, reapportionment is a legislative function,
The Legislature has not had an opportunity to consider carefully or comply with this new challenge;
The question that plaintiffs raise about severability or non-severability of H.B. 195 is academic. First, H.B. 195 will not be severed if the Legislature enacts a new statute prior to August 1, 1967. Second, the intent of the Legislature will not be thwarted
The Taylor intervenors suggest that this Court order the Texas Legislative Redistricting Board to reapportion the State into single-member districts. Under the Texas Constitution, this remedy is not feasible, as the Board serves a limited function not suited to this proceeding.
The most meritorious suggestion, viewed in the traditions of equity practice, is that of Peter O'Donnell, Chairman of the State Republican Executive Committee, who urges the appointment of a special master in chancery who could develop a plan of apportionment for the Court's approval. Although courts elsewhere have used this approach,
The decree attached to this Opinion as Appendix "E" details the plan of relief which the Court adopts. To summarize the decree briefly, it sustains H.B. 195 as valid in all respects but for the eleven flotorial districts which contain invidiously discriminatory population disparities; it approves H.B. 195 as a valid interim plan of apportionment for purposes of the 1966 elections, but it orders that if the Legislature does not rectify the unconstitutional dilution of votes which results from voting in these districts as is now provided for, by Tuesday, August 1, 1967, then until the Legislature does so rectify this unconstitutional result, these flotorial districts shall become multi-county, multi-member districts and the candidates therein shall run at large. Additionally, the decree provides that the parties respectively bear their own costs.
The above and foregoing constitutes the Court's findings of fact and conclusions of law in this case.
JOHN R. BROWN, Circuit Judge (concurring):
I concur fully in the result. And I concur fully in the opinion except for that division styled "Burden of Proof."
It took nearly 175 years to come to Baker v. Carr's recognition that legislative bodies—as are the Judiciary, the Executive, the Administrators—are not only under the Constitution but amenable to judicial scrutiny. See Gomillion v. Lightfoot, 5 Cir., 1959, 270 F.2d 594, 599 (dissenting opinion), rev'd, 1960, 364 U.S. 339, 81 S.Ct. 125, 5 L.Ed.2d 110. I think that as this hard-fought, hard-won right begins to flower, we ought not to stunt its growth by artificial, and rigid, standards out of another day. Certainly not until the development of this new approach demonstrates that such standards are appropriate and needful.
The Court does not need, the Court does not use, them here. Rather, as the opinion so carefully emphasizes, the Court factually finds affirmatively that: (1) there is no political gerrymandering; (2) there is no racial gerrymandering; (3) there is no Fifteenth Amendment Negro disenfranchisement; (4) there is no crazy quilt; and (5) excepting flotorial districts, there is no population disparity. Conversely, as a factual matter, we find affirmatively that there are acceptable rational explanations afforded in this record for the action of the Texas Legislature in this apportionment and in the use of the various types of districts employed (see text accompanying notes 62-64, supra, and items (1) through (5) in text at note 63, supra, 252 F.Supp. 443). The efforts to cast this into three mutually exclusive areas—(1) de minimis at one extreme, No. (3) per se at the other, with the second being (2) "the area of the big middle"—really solves nothing. In none is judicial inquiry avoided. In each there is a judicial
Moreover, these are not just ordinary cases if, indeed, any serious constitutional issue may be so characterized. This, as was the parallel congressional case, is one in which this very Court struck down the predecessor statute. Instead of the Court using its acknowledged equity power to formulate and impose a court-directed plan, it followed, with evident wisdom, the process once again applied of leaving it first to the Legislature. But the Court retained jurisdiction as it does again. The legislation under attack was enacted in response to that conditional judicial order. That order contemplated that the product of the legislature would be tested to determine whether there was any need to exercise the reserved power to enter a subsequent equity decree and to determine whether the product was constitutionally acceptable. Legislation brought into being under those circumstances to meet a specific challenge in a specific case bears little resemblance to the situation in which after routine enactment, private or public parties attack the constitutional validity of a new bill. I do not mean to say that such responsive legislation is suspect. This, like talking in terms of "presumptions" (see note 8 and accompanying text), just affords another stumbling block to the simple, though profound and awesome, judicial inquiry in this new and rapidly developing area.
The constitutional imperative is plain. The substantive standard is clear. Why not take the record and lay it against those standards and then see whether it does or does not measure up? The one thing always obvious in any reapportionment bill is the numerical result. The problem necessarily then relates to a qualitative evaluation of factors which do or do not justify the deviation. If there are rational significant state policies, then it is the state which knows this better than any other party. To say that individual plaintiffs seeing widespread numerical disparity have to undertake to prove the negative of any possible conceivable rational basis in a state of 254 counties and a population of nearly 10 million is to insulate state activity from meaningful judicial inquiry. Worse, in the name of a procedural standard to expedite the trial of cases, it is to commit the Judiciary to an incongruous process in which, to scrutinize the needle which must exist to overcome the numerical deviation, the attackers must first stack and then unstack the hay. The prospect becomes all the more irrational when, as in Texas and in our two cases (state and congressional), the parties and the Court are put to the awkward task of reconstructing a legislative history from reports of political pundits, news reporters' accounts of heated exchanges, or the like.
If, as some long thought, this is a "political thicket," then I think that the law must work out both the substantive and procedural rules as the nature of the serious problem requires. We ought, therefore, to postpone as long as possible any hard choice. What the burden of proof rule should be, I do not know. I think it should be hammered out from experience. Because the opinion on this score forecloses this opportunity for pragmatic experimentation and would commit the Court to a rigid policy born of quite different controversies, I must, with deference, register this difference.
The original plaintiffs were the following:
All allege that they are duly qualified voters in Texas and taxpayers. They bring suit in their own behalf and for all voters similarly situated. The cause has both lost and gained plaintiffs since rendition of summary judgment by this Court on January 11, 1965. The following have dropped out, all State Representatives: Myra Banfield, Ben Barnes, John E. Blaine, Jack Crain, David Crews, Wayne Gibbens, Forrest A. Harding, George T. Hinson, James L. Slider, and Bill Walker. Certain plaintiffs have been added, who will "broaden the base of the class, and * * * make it more representative." They are:
Plaintiffs sue in their own behalf and for all voters similarly situated. Plaintiffs, and thus the parties who align with them, contend that House Bill 195 is unconstitutional on five major grounds:
(1) That it submerges population as the controlling consideration in the apportionment of seats in the Legislature, especially in the eleven flotorial districts wherein the right to vote allegedly is diluted substantially;
(2) That exclusive of the flotorial districts, it deviates arbitrarily and unreasonably from the population of the ideal or average district;
(3) That it accomplishes partisan gerrymandering through the use of multimember districts, allegedly designed to cancel out or minimize the voting strength of racial or political elements—specifically, Republicans, liberal Democrats, and Negroes;
(4) That through the use of multi-member districts in major urban centers, it deprives Negroes of their right to vote, in violation of the Fifteenth Amendment; and
(5) That it "contains a needless mixture of multi-member, flotorial, and single member districts, which reapportion the 150 House seats in a `crazy quilt' manner completely lacking in rationality * * *."
With the exception of ground number four, all of the alleged violations, if proven, would constitute denials of equal protection of the laws under the Fourteenth Amendment. Plaintiffs pray the Court to declare that H.B. 195 is unconstitutional
Numerous intervenors were permitted to file interventions and participate in the hearing. Those referred to as the Taylor intervenors consist of the following:
They sue in behalf of all voters similarly situated. They align themselves with the plaintiffs and adopt their pleadings, asserting that Texas should be redistricted into 150 single-member districts of equal population to assure them equal representation and their votes equal weight. They pray the Court to declare H.B. 195 unconstitutional and to adopt their proposed single-member-district plan of apportionment, either by direct court order or by an order requiring the Legislative Redistricting Board of Texas to so apportion the State. See Art. 3, § 28 of the Texas Constitution.
Other intervenors referred to as the Ewing intervenors consist of the following:
All allege that they are residents of Harris County, Texas. They sue in behalf of all persons similarly situated.
The Ewing intervenors, representing themselves to be qualified voters of Harris County, Texas, allege that H.B. 195 is unconstitutional because it treats Harris County differently from all other counties in the State by placing ths 19 representatives allocated to Harris County in three separate multi-member districts within the county limits rather than in one multi-member district consisting of Harris County, thus violating the equal protection clause of the Fourteenth Amendment. These intervenors, claiming to represent all of the voters in Harris County as a class, pray that the Court declare House Bill 195 unconstitutional only with regard to those provisions dividing Harris County into three multi-member districts. They pray that the Court enter its order requiring representatives from Harris County to be elected at large, county-wide. Their prayer is in effect that Harris County be constituted one multi-member district rather than three.
Certain named defendants are the following state and party officials:
Although served with copies of the pleadings and briefs through counsel of
In answer, defendants refute plaintiffs' contentions in detail and question the accuracy of their examples. Defendants assert that plaintiffs "are only able to represent their own point of view, which is a minority point of view, not only in their own county but in their legislative district and in the State of Texas as a whole." Defendants pray that the Court declare H.B. 195 constitutional in all respects and award them their costs.
A named defendant is Peter O'Donnell, Jr., Chairman of the Texas State Republican Executive Committee, who filed an answer admitting all of the allegations of the plaintiffs' First Amended Complaint and praying that this Court take jurisdiction to determine the rights and duties of the parties herein. Although styled as a defendant herein, in his brief this defendant aligns himself as a plaintiff and adopts the brief filed by plaintiffs. Therefore, when the term "defendants" is used in the opinion, it will not include the Chairman of the State Republican Executive Committee unless so stated.
The Court permitted the filing of statements by one group and one individual, appearing herein as amicus curiae. The first amicus statement is that of a group of thirty-two legislators headed by F. DeWitt Hale of Corpus Christi, Texas. They assert that they are not parties nor attorneys of record in this cause but are interested in the outcome only as duly-elected public officials of the State of Texas because it will affect the policies of government of the State of Texas. The gist of their statement is that the majority of the Legislature has no quarrel with the decisions of the Supreme Court of the United States which require apportionment on the basis of population and which hold that factors such as historical political boundaries, communities of interest, and other rational state policies may constitutionally be considered in drawing district lines, so long as the resulting plan does not violate the basic requirement that representation be based upon population. Further, as members of the Legislature, they state that they have dedicated their efforts to achieve this result in the State of Texas. Finally, they assert that they represent a cross-section of thinking both in the Legislature and in the State of Texas, and suggest that it would be erroneous for the Court to conclude that the plaintiff-legislators, Senators Eckhardt and Kennard and Representatives Johnson and Gates, reflect the thinking of that body because "* * * [M]ost members are opposed to the position taken by plaintiffs."
The second amicus statement is that of Robert W. Hainsworth, a lawyer admitted to practice before this Court and a member of the Negro race, who requested this Court to defer decision upon the issue of racial discrimination through the use of multi-member districts, pending his appeal to the Supreme Court of the United States of Hainsworth v. Martin, 386 S.W.2d 202 (Tex.Civ.App.1965), error ref. n. r. e., which raises the identical issue under the old statute. The Court vacated the appeal as moot, 86 S.Ct. 256 (U.S. Oct. 25, 1965), and denied a petition for rehearing, 86 S.Ct. 532 (U.S. Jan. 18, 1966).
Subsequent to the hearing of this cause, the Court invited the parties to brief further the question of the relief or remedy which should be ordered by the Court with regard to the situation in the flotorial districts, in the event H.B. 195 should be held invalid as to such districts. The Court suggested that a decree similar to the one in Toombs v. Fortson,
The parties replied in a variety of ways. Plaintiffs filed an extensive brief which reargued the entire case before concluding with their view of the proper remedy. They contend (1) that the Court lacks authority to stay redress for any length of time, declining discussion of postponement of remedy beyond August 1, 1967 as being too remote; (2) that this Court has no alternative but to enjoin the 1966 elections under H.B. 195 and grant relief effective almost immediately; (3) that the Court has no duty to resubmit the matter to the Legislature sitting in regular session, because that body has had its one allowable chance to apportion Texas in a constitutional manner and has failed; and (4) that the Court lacks the power to sever H.B. 195 and to strike down the flotorial districts only. Plaintiffs assert that the Court, either itself initially or after reference to a master, must promulgate a complete, new plan of apportionment for the 1966 elections. Finally, they suggest that the Court should "announce certain general standards, guidelines, and criteria to provide a basis for review of future apportionment acts."
Defendant O'Donnell, although having aligned himself with plaintiffs, suggests similar remedies but in somewhat different order. First, he suggests appointment of a special master in chancery to formulate a plan subject to the Court's approval. Alternatively, if no master be appointed, he asks that the Court (1) hold H.B. 195 invalid, (2) enjoin all elections thereunder, and (3) return the ultimate responsibility for the adoption of a constitutional plan of apportionment to defendants again, forcing the convention of a special session of the Legislature.
Defendants state their order of preference, in the event the Court should reach the question of remedies, to be as follows: (1) that the Court should recognize H.B. 195 as a valid interim procedure, but order the Legislature to reapportion the State properly subsequent to the 1970 census; or (2) that the Court should recognize H.B. 195 as a valid interim procedure, but order the legislators from the flotorial districts to run at large therein if the Legislature does not correct the discrimination in these districts by August 1, 1967; or (3) that the Court should recognize H.B. 195 as a valid interim procedure, but hold it invalid as of August 1, 1967 if not amended by such date; or (4) that the Court should require the legislators from the flotorial districts to be elected at large therein for the 1966 elections and subsequent elections. They assert that the Court would be in error to enjoin the holding of elections under H.B. 195. Defendants answer plaintiffs' contentions by asserting (1) that the Court does not lack authority to stay redress; (2) that the Court would err in enjoining the 1966 elections under H.B. 195; (3) that the Legislature has had no opportunity to correct this particular deficiency, if it be a deficiency; and (4) that the Court obviously has the power to sever.
The Hale amicus curiae group expressed an order of preference for possible remedies. First, they desire (1) that the Court approve H.B. 195 as a valid interim measure until completion of the 1970 Federal Census, subsequent to which the Legislature would validly reapportion the State as required by law; or (2) that the Court outline the standards under the Fourteenth Amendment which it deems necessary for the Legislature to satisfy; and (3) that the Court retain continuing jurisdiction of the cause. Second, they ask if the Court should not proceed as first suggested, that the Court uphold H.B. 195 as a valid interim measure until the next regular session of the Legislature, commencing January 1, 1967, and afford that body the opportunity to correct the deficiencies prior to August 1, 1967, failing which, the Court should order that the candidates from the dominant and appurtenant counties all run at large from the counties comprising the respective flotorial districts, thus making multi-member districts out of the flotorial districts. If the Court should deem immediate relief to be proper, they prefer
Districts Not Having Constituent
Counties in a Flotorial DistrictNumber of Representatives Population Percentage of District District Per Per Representative Deviation from Ideal Number Total District District of 63,8641 59,971 1 59,971 - 6.09 2 60,906 1 60,906 - 4.62 3 62,464 1 62,464 - 2.19 4 63,549 1 63,549 - 0.49 5 67,367 1 67,367 + 5.48 6 68,813 1 68,813 + 7.75 7 67,767 1 67,767 + 6.11 8 60,357 1 60,357 - 5.49 9 *245,659 4 61,415 - 3.83 10 60,877 1 60,877 - 4.67 11 63,889 1 63,889 + 0.03 12 70,808 1 70,808 + 10.87 13 69,436 1 69,436 + 8.72 16 61,282 1 61,282 - 4.04 17 57,551 1 57,551 - 9.88 18 57,604 1 57,604 - 9.80 21 *140,364 2 70,182 + 9.89 22 *417,283 7 59,612 - 6.65 23 *408,409 6 68,068 + 6.58 24 *417,396 6 69,566 + 8.93 25 66,272 1 66,272 + 3.77 26 67,361 1 67,361 + 5.47 27 59,683 1 59,683 - 6.54 28 55,772 1 55,772 - 12.67 29 65,119 1 65,119 + 1.96 30 63,896 1 63,896 + 0.05 33 *951,527 14 67,966 + 6.42 34 67,045 1 67,045 + 4.98 41 66,706 1 66,706 + 4.45 42 71,301 1 71,301 + 11.64 43 63,067 1 63,067 - 1.24 44 66,961 1 66,961 + 4.85 49 *180,904 3 60,301 - 5.58 50 70,105 1 70,105 + 9.77 51 69,992 1 69,992 + 9.59 52 *538,495 8 67,312 + 5.39 53 61,571 1 61,571 - 3.59 54 56,594 1 56,594 - 11.38 55 64,815 1 64,815 + 1.49 56 56,750 1 56,750 - 11.13 57 *687,151 10 68,715 + 7.59
Districts Not Having Constituent
Counties in a Flotorial DistrictNumber of Representatives Population Percentage of District District Per Per Repsentative Deviation from Ideal Number Total District District of 63,86458 70,845 1 70,845 + 10.93 59 69,184 1 69,184 + 8.33 60 68,621 1 68,621 + 7.45 63 60,846 1 60,846 - 4.72 64 64,067 1 64,067 + 0.31 65 61,112 1 61,112 - 4.30 66 70,874 1 70,874 + 10.97 67 *314,070 5 62,814 - 1.64 70 67,717 1 67,717 + 6.03 71 64,630 1 64,630 + 1.19 72 70,357 1 70,357 + 10.16 73 60,884 1 60,884 - 4.67 74 55,055 1 55,055 - 13.79 75 62,165 1 62,165 - 2.66 78 55,517 1 55,517 - 13.07 79 59,774 1 59,774 - 6.40 80 *115,580 2 57,790 - 9.51 81 54,385 1 54,385 - 14.84 82 60,508 1 60,508 - 5.25 83 66,478 1 66,478 + 4.09 84 56,528 1 56,528 - 11.48 85 *123,528 2 61,764 - 3.28 86 56,793 1 57,793 - 9.50
Average Overrepresentation - 6.70% Average Underrepresentation - 6.01% ______ Average Range 12.7%
Dear Mr. Speaker:
As a result of the analyzing and briefing of Section 26, Article III of the Texas Constitution of 1876 and the recent decisions of the U. S. Supreme Court on the subject of state reapportionment, this office has reached the following legal conclusions.
1. Whenever a single county has sufficient population to be entitled to more
2. Multi-representative counties may be apportioned so that the representatives can run at-large within the county or from individual districts within the county or, a combination of any of these methods.
3. If a single county does not have sufficient population to entitle it to one representative, such county shall be joined with one or more contiguous counties until the proper population ratio is achieved. The above cited provision of the Texas Constitution requires that counties be kept intact and their boundaries not be violated.
4. Should the keeping of counties intact result in a violation of the Supreme Court "one man, one vote" rule, then the county lines must be violated but only to the extent necessary to carry out the mandate of the Supreme Court. In all other instances, county lines must remain intact and multi-county districts or flotorial districts be formed by the joining of complete and contiguous counties.
The above legal conclusions have been set out as clearly and concisely as possible. These conclusions have been reached by a thorough analysis of the Texas constitutional provisions as well as recent federal court decisions. Our research has also thoroughly developed the legislative history and legislative interpretation of the legislative sessions immediately prior to and immediately subsequent to the adoption of the constitutional provisions involved.
IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION
This cause having come on for trial at which all parties, including intervenors and amicus curiae, were present by counsel; and the Court having heard the evidence and having considered the pleadings, evidence, and arguments of counsel; and the Court being of the view that a Decree should be entered granting relief to the plaintiffs only to the extent hereinafter specified, for the reasons set forth in the Court's Opinion filed this day which constitutes also the Court's findings of fact and conclusions of law under Federal Rules of Civil Procedure 52(a);
It is therefore ORDERED, ADJUDGED, and DECREED by the Court:
FIRST: The Court hereby declares that the present apportionment of Representative Districts for the State of Texas as set forth in House Bill 195, 59th Legislature, Vernon's Texas Sess. Law
SECOND: In conducting any election for the nomination or election of any Member of the House of Representatives of the State of Texas, the named defendants, individually and in their respective official Representative capacities, and their respective agents, officers and employees, are hereby enjoined from enforcing, applying or following said House Bill 195, (a) as to invalid Districts 15F, 20F, 32F, 36F, 38F, 40F, 46F, 48F, 62F, 69F, and 77F; and (b) as to Districts 14, 19, 31, 35, 37, 39, 45, 47, 61, 68, and 76, which, though valid, are hereinafter recomposed with the invalid Districts to create new, valid, multi-member Districts.
THIRD: Pending enactment by the State of Texas of a new apportionment act in substitution for or amendment of said House Bill 195 which complies with the requirements of the Constitution of the United States and other applicable law, the counties embraced in Representative Districts numbered 14, 15F, 19, 20F, 31, 32F, 35, 36F, 37, 38F, 39, 40F, 45, 46F, 47, 48F, 61, 62F, 68, 69F, 76, and 77F in House Bill 195 are hereby recomposed in multi-member districts and each such District shall bear the number and shall be entitled to elect the number of Representatives indicated for it, as follows:
FOURTH: Representative Districts 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 16, 17, 18, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 33, 34, 41, 42, 43, 44, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 63, 64, 65, 66, 67, 70, 71, 72, 73, 74, 75, 78, 79, 80, 81, 82, 83, 84, 85, and 86 of House Bill 195 are not changed to any extent and such Districts together with Districts 14, 19, 31, 35, 37, 39, 45, 47, 61, 68 and 76 as herein composed shall constitute the Representative Districts of the State of Texas. All other provisions of House Bill 195 except those enjoined in paragraph SECOND above shall remain in full force and effect.
SIXTH: The parties shall bear their own costs.
SEVENTH: The Court retains jurisdiction of this complaint for such other and further orders as may be required.
"Sec. 26a. Provided however, that no county shall be entitled to or have under any apportionment more than seven (7) Representatives unless the population of such county shall exceed seven hundred thousand (700,000) people as ascertained by the most recent United States Census, in which event such county shall be entitled to one additional Representative for each one hundred thousand (100,000) population in excess of seven hundred thousand (700,000) population as shown by the latest United States Census; nor shall any district be created which would permit any county to have more than seven (7) Representatives except under the conditions set forth above. * * *"
"1. Does the apportionment scheme under review effect a deviation from the norm of equal popular representation and work a dilution of relative individual voting power?
"2. If the first inquiry is answered in the affirmative, is the departure so substantial or `major' as to constitute per se an invidious discrimination?
"3. If the departure is not invidiously discriminatory per se, is it supported by a rational and constitutionally permissible state policy?
"Burden of Proof: The Legitimation of Deviation
The point of departure in analysis of the reaportionment decisions in terms of the intended basis of review of apportionment deviation and the placing of the burden of proof relative to such concern is found in the Reynolds opinion, at 377 U.S.  579 [84 S.Ct. 1362, 1391, 12 L.Ed.2d 506]:
The key words in the quoted text are the first three, `So long as.' These words of limitation make it clear that the burden of proof rests with the defenders of the apportionment scheme under attack to show that the divergences in question are based on (i) legitimate considerations (i.e., constitutionally permissible ones), and (ii) rational state policy."
McGowan v. State of Maryland, 366 U.S. 420, 81 S.Ct. 1101, 6 L.Ed.2d 393 (1961). (Plaintiff must prove exceptions in Sunday closing laws have no reasonable basis.)
Madden v. Com. of Kentucky, 309 U.S. 83, 60 S.Ct. 406, 84 L.Ed. 590 (1940). (Plaintiffs must prove statute which taxed out-of-state bank at higher rate than within-state banks was "hostile and oppressive discrimination.)
Metropolitan Cas. Ins. Co. of New York v. Brownell, 294 U.S. 580, 55 S.Ct. 538, 79 L.Ed. 1070 (1935). (Foreign corporation must prove state arbitrarily discriminates against it when compared to domestic corporations subject to its regulation.)
Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 31 S.Ct. 337, 55 L.Ed. 369 (1911). (Plaintiffs must prove statute which permitted pumping water from wells not penetrating rock, and prohibited wells penetrating, was arbitrary in distinction.)
Erb v. Morasch, 177 U.S. 584, 20 S.Ct. 819, 44 L.Ed. 897 (1899). (Plaintiff does not prove denial of equal protection because statute on its face regulates railroads in same town differently, but must prove difference is arbitrary.)
State of Missouri v. Lewis, 101 U.S. 22, 25 L.Ed. 989 (1879). (Plaintiff must prove use by state of different methods of judicial appeal in different parts of state is unreasonable.)
A slightly different method of apportionment governed from 1869 until 1875. See note 46 infra.
Percentage of Pop. Variance Ratio Flotorial Deviation from of Flotorial District Districts Ideal District to Smallest District
Under H.B. 195 Counties Population of 63,864 in H.B. 195 of 54,38515F x Smith 86,350 * Rusk 36,421 ________ 122,771 + 92.2% 2.26 to 1 20F x Brazoria 76,204 * Ft. Bend 40,527 ________ 116,731 + 82.8% 2.13 to 1 32F x Grayson 73,043 * Collin 41,247 * Rockwall 5,878 ________ 120,168 + 88.2% 2.21 to 1 36F x McClennan 150,091 * Coryell 23,961 ________ 174,052 + 172.5% 3.20 to 1 38F x Bell 94,097 * Williamson 35,044 ________ 129,141 + 102.2% 2.37 to 1 40F x Travis 212,136 * Burnet 9,265 ________ 221,401 + 246.7% 4.07 to 1 46F x Nueces 221,573 * Kleberg 30,052 ________ 251,625 + 294.0% 4.63 to 1 48F x Cameron 151,098 * Willacy 20,084 * Kenedy 884 * Brooks 8,609 ________ 180,675 + 182.9% 3.32 to 1 62F x Taylor 101,078 * Jones 19,299 * Haskell 11,174 ________ 131,551 + 106.0% 2.42 to 1 69F x Ector 90,995 * Winkler 13,652 * Loving 226 * Reeves 17,644 ________ 122,517 + 91.8% 2.25 to 1 77F x Lubbock 156,271 * Crosby 10,347 ________ 166,618 + 160.9% 3.06 to 1 Average Percentage of Deviation + 147.3% ====================================================
x Denotes "dominant" counties which also comprise by themselves another state representative district.
* Denotes "appurtenant" counties whose citizens vote in only one state representative district.
DISTRICT COUNTIES REPRESENTATIVES POPULATIONA Bell 1 94,097 B Williamson 1 35,044 Milam 22,263 Robertson 16,157 Falls 21,263 _______ 94,727 F Bell 1 94,097 Williamson 35,044 Milam 22,263 Robertson 16,157 Falls 21,263 _______ 188,824 Analysis1. Ideal average district 63,864 × 3 191,592 2. Population of Districts A, B, and F 188,824 _______ 3. Total deviation 2,768 ======= 4. Average deviation/District ( 2,768 ) ( ----- ) 922 ( 3 ) 5. Per cent deviation/District ( 922 ) ( ----- ) 1.4% ( 63,864)
The proper view of the method, of course, requires that each citizen's vote receive its proper weight. The voters in Milam County should be able to elect one-third of a representative, and they could: 22/94 + 22/188 = 66/188 or 1/3 the voters in Bell County should be able to elect one and one-half representatives, and they could: 94/94 + 94/188 = 282/188 or 1½. Thus, this flotorial district would be valid in all respects. The Court emphasizes that the foregoing is an example only, which does not indicate any feeling or opinion of this Court as to how the Legislature should compose any particular district in the future. Neither is it a suggestion that this area of Texas be apportioned in this manner.
It should be noted that this type of flotorial district has historical precedent from Texas' earliest days. See, for example, the 1850 apportionment statute in which Gillespie and Comal Counties constituted District 43, Bexar and Medina Counties constituted District 44, and the four counties combined constituted (flotorial) District 45. Other examples in that statute of flotorial districts in which all constituent counties had separate, additional representation are Districts 3 and 9. See note 20 supra. Under the 1853 statute, additional examples are Districts 11, 14, 25, and 58, note 20 supra. Under the 1860 statute, examples are Districts 25, 30, 33, and 52, note 20 supra. There are examples under the statutes of 1875 (9); 1882 (15, 51, 62, and 72); 1892 (13, 17, 24, 48, 64, 70, and 72); 1911 (38, 59, 67, and 127); 1921 (38 and 60); and 1951 (15F), note 20 supra.
Treated as Flotorial DistrictNo. of Ratio to District Population Rep's. Deviation 54,385*15F 122,771 1 + 92.2% 2.26 20F 116,731 1 + 82.8% 2.13 32F 120,168 1 + 88.2% 2.21 36F 174,052 1 + 172.5% 3.20 38F 129,141 1 + 102.2% 2.37 40F 221,401 1 + 246.7% 4.07 46F 251,625 1 + 294.0% 4.63 48F 180,675 1 + 182.9% 3.32 62F 131,551 1 + 106.0% 2.42 69F 122,517 1 + 91.8% 2.25 77F 166,618 1 + 160.9% 3.06
Treated as Multi-Member DistrictPopulation No. of Ratio to District Per Representative Rep's. Deviation 54,385*15F 61,385 2 - 3.9% 1.13 20F 58,365 2 - 8.6% 1.07 32F 60,084 2 - 5.9% 1.10 36F 58,017 3 - 9.2% 1.07 38F 64,570 2 + 1.1% 1.19 40F 55,350 4 - 13.3% 1.02 46F 62,906 4 - 1.5% 1.16 48F 60,225 3 - 5.7% 1.11 62F 65,775 2 + 3.0% 1.21 69F 61,258 2 - 4.1% 1.13 77F 55,539 3 - 13.0% 1.02
* Population of smallest district under H.B. 195.
Thigpen v. Meyers, 211 F.Supp. 826 (W.D.Wash.1962), aff'd. 378 U.S. 554, 84 S.Ct. 1905, 12 L.Ed.2d 1024 (1964); Thigpen v. Kramer, Civil No. 5597, W.D. Wash., Mar. 9, 1965; Toombs v. Fortson, 241 F.Supp. 65 (N.D.Ga.1965); Stout v. Bottorff, 246 F.Supp. 825 (S.D.Ind. 1965).
Preisler v. Doherty, 365 Mo. 460, 284 S.W.2d 427 (1955); People ex rel. Woodyatt v. Thompson, 155 Ill. 451, 40 N.E. 307 (1895); People ex rel. Carter v. Rice, 135 N.Y. 473, 31 N.E. 921, 16 L.R.A. 836 (1892); Preisler v. Hearnes, 362 S.W.2d 552 (Mo.S.Ct.1962); Jackman v. Bodine, 44 N.J. 414, 209 A.2d 825 (1965); Silver v. Brown, Cal.S.Ct. Sep. 1, 1965, 46 Cal.Rptr. 308, 405 P.2d 132.
H.R. 5505, 89th Congress, 1st Sess., and House of Representatives Report No. 140, 89th Congress, 1st Sess.
45 Am.Pol.Sci.Rev. 153 (1951).
The Model Plan (Senate Bill 318) contains thirty-three plats showing how certain of the districts would be composed. In all instances where district lines are not contiguous with county lines, their composition is described by census and sub-census tracts.
This Monograph is significant because it contains Senate Bill 318, introduced in the Texas Senate by plaintiff Senators Spears and Kennard and which in their pleadings plaintiffs pray that this Court declare to be the scheme of apportionment for the House of Representatives. Professor Spain explains in the Monograph that plaintiffs' plan (Senate Bill 318) was "designed by Professors Luther G. Hagard and Samuel B. Hamlett * * * [and] * * * involved numerous professional consultations in which the present writer [Professor Spain] was privileged to share." The Monograph designates the apportionment plan "A Model for Texas," and plaintiffs have embraced it in their pleadings, evidence, and briefs. Plaintiffs' plan, Senate Bill 318 and the Arnold Foundation Plan, being one and the same, provides a maximum range of deviation from the ideal district from a maximum "overage" or minus 8.7% to a maximum "underage" or plus 6.9%, or a maximum range of 15.6%.
NEGRO LEGISLATORS IN TEXAS
NUMERICAL ROSTER* CONSTITUTIONAL CONVENTION, 1868-69 9 delegates Twelfth Legislature, 1871 2 Senators, 9 Representatives Thirteenth Legislature, 1873 2 Senators, 6 Representatives Fourteenth Legislature, 1874 1 Senator, 6 Representatives CONSTITUTIONAL CONVENTION, 1875 6 delegates Fifteenth Legislature, 1876 1 Senator 3 Representatives Sixteenth Legislature, 1879 1 Senator 7 Representatives Seventeenth Legislature, 1881 1 Senator 4 Representatives Eighteenth Legislature, 1883 2 Representatives Nineteenth Legislature, 1885 2 Representatives Twenty-first Legislature, 1889 2 Representatives Twenty-second Legislature, 1891 1 Representative Twenty-third Legislature, 1893 1 Representative Twenty-fourth Legislature, 1895 2 Representatives
* Source-Brewer, Negro Legislators in Texas (1935).