MR. JUSTICE WHITE delivered the opinion of the Court.
This case raises two questions concerning the validity of the reapportionment plan for the Texas House of Representatives adopted in 1970 by the State Legislative Redistricting Board: First, whether there were unconstitutionally large variations in population among the districts defined by the plan; second, whether the multimember districts provided for Bexar and Dallas Counties were properly found to have been invidiously discriminatory against cognizable racial or ethnic groups in those counties.
On October 15, 1971, the Redistricting Board's plan for the reapportionment of the Senate was released, and, on October 22, 1971, the House plan was promulgated. Only the House plan remains at issue in this case. That plan divided the 150-member body among 79 single-member and 11 multimember districts. Four lawsuits, eventually consolidated, were filed challenging the
A three-judge District Court sustained the Senate plan, but found the House plan unconstitutional. Graves v. Barnes, 343 F.Supp. 704 (WD Tex. 1972). The House plan was held to contain constitutionally impermissible deviations from population equality, and the multimember districts in Bexar and Dallas Counties were deemed constitutionally invalid. The District Court gave the Texas Legislature until July 1, 1973, to reapportion the House, but the District Court permitted the Board's plan to be used for purposes of the 1972 election, except for requiring that the Dallas County and Bexar County multimember districts be reconstituted into single-member districts for the 1972 election.
Appellants appealed the statewide invalidation of the House plan and the substitution of single-member for multimember districts in Dallas County and Bexar County.
We deal at the outset with the challenge to our jurisdiction over this appeal under 28 U. S. C. § 1253, which permits injunctions in suits required to be heard and determined by a three-judge district court to be appealed
We also hold that appellants, because they appealed from the entry of an injunction, are entitled to review of the District Court's accompanying declaration that the proposed plan for the Texas House of Representatives, including those portions providing for multimember districts in Dallas and Bexar Counties, was invalid statewide. This declaration was the predicate for the court's order requiring Dallas and Bexar Counties to be reapportioned into single districts; for its order that "unless the Legislature of the State of Texas on or before July 1, 1973, has adopted a plan to reapportion the legislative districts
The reapportionment plan for the Texas House of Representatives provides for 150 representatives to be selected from 79 single-member and 11 multimember districts. The ideal district is 74,645 persons. The districts range from 71,597 to 78,943 in population per representative, or from 5.8% overrepresentation to 4.1% underrepresentation. The total variation between the largest and smallest district is thus 9.9%
The District Court read our prior cases to require any deviations from equal population among districts to be
The District Court's ultimate conclusion was that "the apportionment plan for the State of Texas is unconstitutional as unjustifiably remote from the ideal of `one man, one vote,' and that the multi-member districting schemes for the House of Representatives as they relate specifically to Dallas and to Bexar Counties are unconstitutional in that they dilute the votes of racial minorities." Id., at 735.
Insofar as the District Court's judgment rested on the conclusion that the population differential of 9.9% from the ideal district between District 3 and District 85 made out a prima facie equal protection violation under the Fourteenth Amendment, absent special justification, the court was in error. It is plain from Mahan v. Howell, 410 U.S. 315 (1973), and Gaffney v. Cummings, ante, p. 735, that state reapportionment statutes are not subject to the same strict standards applicable to reapportionment of congressional seats. Kirkpatrick v. Preisler did not dilute the tolerances contemplated by Reynolds v. Sims with respect to state districting, and we did not hold in Swann v. Adams, 385 U.S. 440 (1967), or Kilgarlin v. Hill, 386 U.S. 120 (1967), or
We affirm the District Court's judgment, however, insofar as it invalidated the multimember districts in Dallas and Bexar Counties and ordered those districts to be redrawn into single-member districts. Plainly, under our cases, multimember districts are not per se unconstitutional, nor are they necessarily unconstitutional when used in combination with single-member districts in other parts of the State. Whitcomb v. Chavis, 403 U.S. 124 (1971); Mahan v. Howell, supra; see Burns v. Richardson, 384 U.S. 73 (1966); Fortson v. Dorsey, 379 U.S. 433 (1965); Lucas v. Colorado General Assembly, 377 U.S. 713 (1964); Reynolds v. Sims, supra.
With due regard for these standards, the District Court first referred to the history of official racial discrimination in Texas, which at times touched the right of Negroes to register and vote and to participate in the democratic processes. 343 F. Supp., at 725. It referred also to the Texas rule requiring a majority vote as a prerequisite to nomination in a primary election and to the so-called "place" rule limiting candidacy for legislative office from a multimember district to a specified "place" on the ticket, with the result being the election of representatives from the Dallas multimember district reduced to a head-to-head contest for each position. These characteristics of the Texas electoral system, neither in themselves improper nor invidious, enhanced the opportunity for racial discrimination, the District Court thought.
The same is true of the order requiring disestablishment of the multimember district in Bexar County. Consistently with Hernandez v. Texas, 347 U.S. 475 (1954), the District Court considered the Mexican-Americans in Bexar County to be an identifiable class for Fourteenth Amendment purposes and proceeded to inquire whether the impact of the multimember district on this group constituted invidious discrimination. Surveying the historic and present condition of the Bexar County Mexican-American community, which is concentrated
Based on the totality of the circumstances, the District Court evolved its ultimate assessment of the multimember district, overlaid, as it was, on the cultural and economic realities of the Mexican-American community in Bexar County and its relationship with the rest of the county. Its judgment was that Bexar County Mexican-Americans "are effectively removed from the political processes of Bexar [County] in violation of all the Whitcomb standards, whatever their absolute numbers may total in that County." Id., at 733. Single-member districts were thought required to remedy "the effects of past and present discrimination against Mexican-Americans," ibid., and to bring the community into the full stream of political life of the county and State by encouraging their further registration, voting, and other political activities.
The District Court apparently paid due heed to Whitcomb v. Chavis, supra, did not hold that every racial or political group has a constitutional right to be represented in the state legislature, but did, from its own special vantage point, conclude that the multimember district, as designed and operated in Bexar County, invidiously excluded Mexican-Americans from effective participation in political life, specifically in the election of representatives to the Texas House of Representatives. On the record before us, we are not inclined to overturn these findings, representing as they do a blend of history and an intensely local appraisal of the design and impact of
Affirmed in part, reversed in part, and remanded.
APPENDIX TO OPINION OF THE COURT
The Redistricting Board's plan embodied the following districts:
Percent Average Deviation Multi- (Under) Over District Population member Over (Under) 1 76,285 1,640 2.2 2 77,102 2,457 3.3 3 78,943 4,298 5.8 4 71,928 (2,717) (3.6) 5 75,014 369 .5 6 76,051 1,406 1.9 7 (3) 221,314 73,771 ( 874) (1.2) 8 74,303 ( 342) ( .5) 9 76,813 2,168 2.9 10 72,410 (2,235) (3.0) 11 73,136 (1,509) (2.0) 12 74,704 59 .1 13 75,929 1,284 1.7 14 76,597 1,952 2.6 15 76,701 2,056 2.8 16 74,218 ( 427) ( .6) 17 72,941 (1,704) (2.3) 18 77,159 2,514 3.4 19 (2) 150,209 75,104 459 .6 20 75,592 947 1.3 21 74,651 6 .0 22 73,311 (1,334) (1.8) 23 75,777 1,132 1.5 24 73,966 ( 679) ( .9) 25 75,633 988 1.3 26 (18) 1,327,321 73,740 ( 905) (1.2) 27 77,788 3,143 4.2 28 72,367 (2,278) (3.1) 29 76,505 1,860 2.5 30 77,008 2,363 3.2 31 75,025 380 .5 32 (9) 675,499 75,055 410 .5 33 73,071 (1,574) (2.1) 34 76,071 1,426 1.9 35 (2) 147,553 73,777 ( 868) (1.2) 36 74,633 ( 12) ( .0) 37 (4) 295,516 73,879 ( 766) (1.0)
Percent Average Deviation Multi- (Under) Over District Population member Over (Under) 38 78,897 4,252 5.7 39 77,363 2,718 3.6 40 71,597 (3,048) (4.1) 41 73,678 ( 967) (1.3) 42 74,706 61 .1 43 74,160 ( 485) ( .6) 44 75,278 633 .8 45 78,090 3,445 4.6 46 (11) 826,698 75,154 509 .7 47 76,319 1,674 2.2 48 (3) 220,056 73,352 (1,293) (1.7) 49 76,254 1,609 2.2 50 74,268 ( 377) ( .5) 51 75,800 1,155 1.5 52 76,601 1,956 2.6 53 74,499 ( 146) ( .2) 54 77,505 2,860 3.8 55 76,947 2,302 3.1 56 74,070 ( 575) ( .8) 57 77,211 2,566 3.4 58 75,120 475 .6 59 (2) 144,995 72,497 (2,148) (2.9) 60 75,054 409 .5 61 73,356 (1,289) (1.7) 62 72,240 (2,405) (3.2) 63 75,191 546 .7 64 74,546 ( 99) ( .1) 65 75,720 1,075 1.4 66 72,310 (2,335) (3.1) 67 75,034 389 .5 68 74,524 ( 121) ( .2) 69 74,765 120 .2 70 77,827 3,182 4.3 71 73,711 ( 934) (1.3) 72 (4) 297,770 74,442 ( 203) ( .3) 73 74,309 ( 336) ( .5) 74 73,743 ( 902) (1.2) 75 (2) 147,722 73,861 ( 784) (1.1) 76 76,083 1,438 1.9 77 77,704 3,059 4.1 78 71,900 (2,745) (3.7) 79 75,164 519 .7 80 75,111 466 .6 81 75,674 1,029 1.4 82 76,006 1,361 1.8
Percent Average Deviation Multi- (Under) Over District Population member Over (Under) 83 75,752 1,107 1.5 84 75,634 989 1.3 85 71,564 (3,081) (4.1) 86 73,157 (1,488) (2.0) 87 73,045 (1,600) (2.1) 88 75,076 431 .6 89 74,206 ( 439) ( .6) 90 74,377 ( 268) ( .4) 91 73,381 (1,264) (1.7) 92 71,908 (2,737) (3.7) 93 72,761 (1,884) (2.5) 94 73,328 (1,317) (1.8) 95 73,825 ( 820) (1.1) 96 72,505 (2,140) (2.9) 97 74,202 ( 443) ( .6) 98 72,380 (2,265) (3.0) 99 74,123 ( 522) ( .7) 100 75,682 1,037 1.4 101 75,204 559 .7
MR. JUSTICE BRENNAN, with whom MR. JUSTICE DOUGLAS and MR. JUSTICE MARSHALL join, dissenting in No. 71-1476, ante, p. 735, and concurring in part and dissenting in part in No. 72-147.
The Court today upholds statewide legislative apportionment plans for Connecticut and Texas, even though these plans admittedly entail substantial inequalities in the population of the representative districts, and even though the States have made virtually no attempt to justify their failure "to construct districts . . . as nearly of equal population as is practicable." Reynolds v. Sims, 377 U.S. 533, 577 (1964). In reaching this conclusion, the Court sets aside the judgment of the United States District Court for the District of Connecticut holding the Connecticut plan invalid, and the judgment of the United States District Court for the Western District
At issue in No. 71-1476, Gaffney v. Cummings, is the 1971 reapportionment plan for election of members of the House of Representatives of Connecticut. The plan was premised on a 151-member House, with each member elected from a single-member district. Since the population of the State was 3,032,217, according to 1970 census data, the ideal would fix the population of each district at 20,081. In fact, the population of many
The District Court held the state plan invalid on the ground that "the deviations from equality of populations of the . . . House districts are not justified by any sufficient state interest."
Although appellant failed to offer cogent reasons in explanation of the substantial variations in district population, the Court nevertheless upholds the state plan. The Court reasons that even in the absence of any explanation for the failure to achieve equality, the showing of a total deviation of almost 8% does not make out a prima facie case of invidious discrimination under the Fourteenth Amendment. Deviations no greater than 8% are, in other words, to be deemed de minimis, and the State need not offer any justification at all for the failure to approximate more closely the ideal of Reynolds v. Sims, supra.
The Texas reapportionment case, No. 72-147, White v. Regester, presents a similar situation, except that the range of deviation in district population is greater and the State's justifications are, if anything, more meager. An ideal district in Texas, which chooses the 150 members of the State House of Representatives from 79 single-member and 11 multimember districts, is 74,645. As
As the District Court's opinion makes clear, the variations surely cannot be defended as a necessary byproduct of a state effort to avoid fragmentation of political sub-divisions. Nevertheless, the Court today sets aside the District Court's decision, reasoning, as in the Connecticut case, that a showing of as much as 9.9% total deviation still does not establish a prima facie case under the Equal Protection Clause of the Fourteenth Amendment. Since the Court expresses no misgivings about our recent decision in Abate v. Mundt, 403 U.S. 182 (1971), where we held that a total deviation of 11.9% must be
The proposition that certain deviations from equality of district population are so small as to lack constitutional significance, while repeatedly urged on this Court by States that failed to achieve precise equality, has never before commanded a majority of the Court.
The Court reasons, however, that Kirkpatrick v. Preisler,
Moreover, even if Kirkpatrick should be deemed inapplicable to the apportionment of state legislative districts, the reasoning that gave rise to our rejection of a
Although not purporting to quarrel with the principle that precise mathematical equality is the constitutionally mandated goal of reapportionment, the Court today establishes a wide margin of tolerable error, and thereby undermines the effort to effectuate the principle. For it is clear that the state legislatures and the state and federal courts have viewed Kirkpatrick as controlling on the issue of legislative apportionment, and the outgrowth of that assumption has been a truly extraordinary record of compliance with the constitutional mandate. Appellees in No. 71-1476 make the point forcefully by comparing the extent of inequality in the population of legislative districts prior to 1969, the year of our decision in Kirkpatrick, with the extent of inequality in subsequent years.
To appreciate the significance of this encouraging development, it is important to understand that the demand for precise mathematical equality rests neither on
Moreover, if any approach ascribes too much importance to abstract numbers and too little to the realities of malapportionment, it is not Kirkpatrick's demand for precise equality in district population, but rather the Court's own de minimis approach. By establishing an arbitrary cutoff point expressed in terms of total percentage variance from the constitutional ideal, the Court fails to recognize that percentage figures tend to hide the total number of persons affected by unequal weighting of votes. In the Texas case, for example, the District Court pointed out that
Finally, it is no answer to suggest that precise mathematical equality is an unsatisfactory goal in view of the inevitable inaccuracies of the census data on which the plans are based. That argument, which we implicitly rejected in Kirkpatrick v. Preisler, supra,
"The Legislature shall, at its first regular session after the publication of each United States decennial census, apportion the state into senatorial and representative districts, agreeable to the provisions of Sections 25, 26, and 26-a of this Article. In the event the Legislature shall at any such first regular session following the publication of a United States decennial census, fail to make such apportionment, same shall be done by the Legislature Redistricting Board of Texas, which is hereby created, and shall be composed of five (5) members, as follows: The Lieutenant Governor, the Speaker of the House of Representatives, the Attorney General, the Comptroller of Public Accounts and the Commissioner of the General Land Office, a majority of whom shall constitute a quorum. Said Board shall assemble in the City of Austin within ninety (90) days after the final adjournment of such regular session. The Board shall, within sixty (60) days after assembling, apportion the state into senatorial and representative districts, or into senatorial or representative districts, as the failure of action of such Legislature may make necessary. Such apportionment shall be in writing and signed by three (3) or more of the members of the Board duly acknowledged as the act and deed of such Board, and, when so executed and filed with the Secretary of State, shall have force and effect of law. Such apportionment shall become effective at the next succeeding statewide general election. The Supreme Court of Texas shall have jurisdiction to compel such Commission [Board] to perform its duties in accordance with the provisions of this section by writ of mandamus or other extraordinary writs conformable to the usages of law. The Legislature shall provide necessary funds for clerical and technical aid and for other expenses incidental to the work of the Board, and the Lieutenant Governor and the Speaker of the House of Representatives shall be entitled to receive per diem and travel expense during the Board's session in the same manner and amount as they would receive while attending a special session of the Legislature. This amendment shall become effective January 1, 1951. As amended Nov. 2. 1948."
"The members of the House of Representatives shall be apportioned among the several counties, according to the number of population in each, as nearly as may be, on a ratio obtained by dividing the population of the State, as ascertained by the most recent United States census, by the number of members of which the House is composed; provided, that whenever a single county has sufficient population to be entitled to a Representative, such county shall be formed into a separate Representative District, and when two or more counties are required to make up the ratio of representation, such counties shall be contiguous to each other; and when any one county has more than sufficient population to be entitled to one or more Representatives, such Representative or Representatives shall be apportioned to such county, and for any surplus of population it may be joined in a Representative District with any other contiguous county or counties."
"Except as otherwise provided by law, any party may appeal to the Supreme Court from an order granting or denying, after notice and hearing, an interlocutory or permanent injunction in any civil action, suit or proceeding required by any Act of Congress to be heard and determined by a district court of three judges."
Deviations After 1970 Percentage of Range of Deviations Number of States States Senate: Under 1% 3 6.7% 1-5% 21 46.7% 5-10% 8 17.8% 10-15% 5 11.1% Over 15% 8 17.8% House: Under 1% 4 9.5% 1-5% 16 38.1% 5-10% 8 19.1% 10-15% 4 9.5% Over 15% 10 23.8%