Following judicial invalidation of the constitutional and statutory provisions governing the apportionment of the Texas State Legislature, the State Legislature reapportioned both the House and the Senate. Appellants
We affirm the District Court's action in permitting the 1966 election to proceed under H. B. 195 although constitutionally infirm in certain respects. In the particular circumstances of this case there is ample precedent for the court's action. See Drum v. Seawell, 383 U.S. 831; Toombs v. Fortson, 384 U.S. 210. We also affirm the court's judgment insofar as it held that appellants had not proved their allegations that H. B. 195 was a racial or political gerrymander violating the Fourteenth Amendment, that it unconstitutionally deprived Negroes of their franchise and that because of its utilization of single-member, multi-member and floterial districts it was an unconstitutional "crazy quilt."
In another respect, however, the District Court committed reversible error. Appellants alleged that in addition to the inequalities inherent in the floterial districts,
The District Court sustained the constitutionality of H. B. 195 on two grounds. First, it held that appellants had the burden not only of demonstrating the degree of variance from the equality principle but also of "negat[ing] the existence of any state of facts which would sustain the constitutionality of the legislation." 252 F.Supp. 404, 414. This, the court held, appellants had not done. At that time, of course, Swann v. Adams, 385 U.S. 440, had not been announced. Under that case it is quite clear that unless satisfactorily justified by the court or by the evidence of record, population variances of the size and significance evident here are sufficient to invalidate an apportionment plan. Without such justification, appellants' analysis of H. B. 195 made out a sufficient case under the Fourteenth Amendment.
Second, the District Court, not resting exclusively on its burden of proof ruling, found that the deviations from the equal population principle were amply justified here because they resulted from a bona fide attempt to conform to the state policy requiring legislative apportionment
Appellants also raise specific challenges to the provisions of H. B. 195 with respect to Dallas, Bexar, and Harris Counties. Dallas and Bexar Counties are relatively
Appellants complain that district 24 in Harris County is assigned only six representatives whereas district 22 in the same county with a slightly smaller population is assigned seven representatives. The court found the record to establish that the population in district 22 was growing rapidly as compared with district 24 and would soon justify the extra representative. This factual determination
The judgment is reversed in part and the case remanded for further proceedings consistent with this opinion.
It is so ordered.
MR. JUSTICE DOUGLAS, concurring.
While I join the opinion of the Court, I reserve decision on one aspect of the problem concerning multi-member districts.
Under the present regime each voter in the district has one vote for each office to be filled. This allows the majority to defeat the minority on all fronts. It is suggested that in multi-member districts each person be able to vote for only one legislator, the theory being that in that way a minority, either political or otherwise, would have a chance to elect at least one representative.
I am not sure in my own mind how this problem should be resolved. But in view of the fact that appellants claim that multi-member districts of Texas are constructed in such a manner that Negroes are effectively disenfranchised, I would reserve that question for consideration when the case is once again before the District Court.
MR. JUSTICE CLARK would affirm the judgment of the District Court.
MR. JUSTICE HARLAN and MR. JUSTICE STEWART would affirm the judgment of the District Court in its entirety, on the basis of the reasoning contained in MR. JUSTICE HARLAN'S dissenting opinion in Swann v. Adams, 385 U.S. 440, 447.
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 than one representative, all the representatives to which it is entitled shall be apportioned to that county.
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.