# Bush v. Martin > District Court, S.D. Texas · January 5, 1966 · 251 F. Supp. 484 URL: https://www.frixlaw.com/law-library/cases/9745445 ## Case - **Full name:** George H. W. BUSH Et Al., Plaintiffs, v. Crawford MARTIN, Secretary of State of the State of Texas, John Connally, Governor of the State of Texas, Waggoner Carr, Attorney General of the State of Texas, Et Al., Defendants - **Court:** District Court, S.D. Texas - **Decided:** January 5, 1966 - **Citations:** 251 F. Supp. 484; 1966 U.S. Dist. LEXIS 7877 - **Precedential status:** Published - **Opinion:** Concurring in part by Noel - **Judges:** Noel, Brown, Ingraham - **Cited by:** 23 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9745445 ## Opinion text NOEL, District Judge (concurring in part and dissenting in part): The Court holds that House Bill 67 is constitutional, and with this I agree. Most of that with which I disagree, respectfully, is capsuled in that section of the Opinion of the Court entitled, “What of the Future?” and in sub-paragraph “Third” of the Court’s Decree. Essentially, my disagreement is with the Court’s retaining jurisdiction over the Texas Legislature until August 1, 1967. Having held H.B. 67 constitutional, I deem it unseemly, unsuitable and inappropriate that this Court should continue to retain jurisdiction. The evidence is in, extensive oral and written arguments have been had, and the Bill has been held constitutional. With respect, I say that it is now time for this Court to surrender its overlordship and dismiss this case. In "What of the Future?” the Opinion reminds the Texas Legislature and executive officials of their affirmative, constitutional duty to act, but it declines to pinpoint the area of the Court’s concern as to “the weaknesses or possible deficiencies in the H.B. 67 plan” and it declines to give guidance for “a close scrutiny and necessary revision of H.B. 67”; but it does express satisfaction over the “substantial contribution to the continuing legislative process and function” brought about by this litigation. In *519 euphemistic prose the Opinion hails the Texas Legislature forward, onward and upward, to grapple with an amorphous problem. The Legislature is left to do so without chart or compass or any standard by which to gauge its end product, except the population standard which heretofore has been constitutionally applied. Realistically read, this section of the Opinion says that while such “weaknesses and possible deficiencies” do not now condemn the Bill, they may possibly do so as of August 1, 1967, and therefore, pressure in the form of continuing jurisdiction should be applied in order to be sure that the suggested “close scrutiny and necessary revision” is accomplished. If H.B. 67 were unconstitutional, there would be some lawful reason in retaining jurisdiction of this case. But there can be no lawful reason for doing so after the Bill has been held to be constitutional. As the Opinion recognizes, in the 1966 elections (which are now upon us) a new House of Representatives and a new Senate will be voted on by the people of the State of Texas. The results of this case as expressed in the Opinion will be fresh in the minds of the electorate and all candidates for the Texas House and Senate. Among other important issues, what should or should not be done by the Legislature about further congressional reapportionment should and undoubtedly will be thought about, discussed and debated both by the candidates and by the voters. In any event, the opportunity for them to do so should exist, unfettered and unpressured by the threat of further action by this Court in this particular case. This case should not remain on the docket either as a stimulant or deterrent to the normal political processes, either of election to the Legislature or action by the Legislature. The views expressed in the Opinion are clearly stated. It must be presumed that these views will be read, weighed, debated and acted on by the people of Texas and their new Legislature as their lights best lead them. In this respect, it should faithfully be borne in mind by all concerned that under the Constitution as presently interpreted by the Supreme Court, as long as the requirements of substantial equality of population and no racial gerrymandering are met, it is the exclusive prerogative of the Legislature to determine the composition, shape, location and other characteristics of congressional districts. These latter legislative determinations involve purely political questions as contrasted with justiciable questions, and are not subject to judicial review. The question of further congressional reapportionment will undoubtedly be considered by the 1967 Legislature, even if this case is dismissed. The composition of the 1967 Legislature will be radically different from the unconstitutionally constituted Legislature which passed H.B. 67. The comparative representation from the four great metropolitan areas of Texas will be as follows: 1965 Legislature 1967 Legislature House Senate House Senate Dallas 9 1 14 3 Ft. Worth 7 1 8 2 San Antonio 7 1 10 2 Houston 12 J_ I£ _4 Total 35 4 51 11 If the basic struggle over congressional reapportionment is between the urban and rural areas, as contended by plaintiffs, it goes without saying that with their vast new numerical power in the next Legislature and their alertness to the problem, the urban legislators from these four areas will work diligently to *520 cure any “weaknesses and possible deficiencies” which they find to exist in H.B. 67. They will have the benefit of the views expressed in the Opinion, the views of their constituents, and their own consciences to motivate them. They will not need any pending case on the docket of this Court to goad them into action. And lest there be concern that this reexamination might not occur in the event both great political parties should not have a substantial number of their own membership in the 1967 Legislature, which could happen, it must be remembered that the position of plaintiffs here has been urged by members of both the great political parties. I believe it inevitable that, even though this case should be dismissed, this same position would be presented to the 1967 Legislature with seriousness and vigor. When the 1967 Legislature has met, acted and adjourned, there will be a place and ample .time for examination of its product by all interested parties and all other citizens of Texas. Should anyone be aggrieved with such product, this Court would be open for business and a new suit could be filed immediately. This Court could be expected to act promptly on any such complaint, as it has heretofore. The only possible loss in time or expense to the parties would be the cost of filing suit and effecting service, nominal at most. But in the meantime, this federal Court would have shown a proper respect for and faith in the Texas Legislature, and particularly the 1967 Legislature, the members of which are yet to be elected. Turning now to the “constitutional duty” to improve H.B. 67 which the Opinion says “affirmatively rests upon * * * The Texas Legislature and all of the elective officials.” How can this duty be correctly discharged unless this Court furnishes the additional constitutionally required standards which will teach the Legislature and executive officials what in H.B. 67 should be improved and, if so, how it should be improved ? In Reynolds the Supreme Court made it crystal clear that population is the sole constitutional standard for reapportionment, except as it may be reasonably modified but not submerged in order to observe boundaries of political subdivisions. 1 If this Court wishes the Legislature to pass another bill by August 1967 — its third congressional reapportionment bill in a decade — the Court should delineate such additional constitutional standards, if any there be or should be, the satisfaction of which would assure the Legislature that its third bill would be immune from attack. Could such failure of the Court be due to the nonexistence of such additional constitutional standards? With respect, I say such do not exist. The reason such additional standards do not exist is that the two constitutional standards which I have mentioned are the only judicially discoverable and manageable standards heretofore discovered. All other criteria to be considered by the Legislature are therefore political in quality and not justiciable. 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). In suggesting that such additional standards exist but in failing to identify them, the Opinion focuses attention on the dilemma precisely envisioned by Mr. Justice Harlan’s dissenting opinion in Reynolds, 377 U.S. at pages 621 and 622, 84 S.Ct. at pages 1412 and 1413, 12 L.Ed.2d 506 , from which I quote: “Generalities cannot obscure the cold truth that cases of this type are not amenable to the development of judicial standards. No set of standards can guide a court which has to decide how many legislative districts a State shall have, or what the shape of the districts shall be, or where to draw a particular district line. No judicially manageable standard can determine whether a State should have single-member dis *521 tricts or multimember districts or some combination of both. No such standard can control the balance between keeping up with population shifts and having stable districts. In all these respects, the courts will be called upon to make particular decisions with respect to which a principle of equally populated districts will be of no assistance whatsoever. Quite obviously, there are limitless possibilities for districting consistent with such a principle. Nor can these problems be avoided by judicial reliance on legislative judgments so far as possible. Reshaping or combining one or two districts, or modifiying just a few district lines, is no less a matter of choosing among many possible solutions, with varying political consequences, than reapportionment broadside.82 “82. It is not mere fancy to suppose that in order to avoid problems of this sort, the Court may one day be tempted to hold that all state legislators must be elected in statewide elections.” The Opinion expresses concern that if the Legislature does not correct the weaknesses and possible deficiencies of H.B. 67 at the next session, such might not be done until after the next decennial census. Even if this should occur, the elapsed time would not be wanting in respectable precedent, for historically, under federal law the decennial reapportionment of the House of Representatives follows the decennial census, provision for which is found in 2 U.S.C.A. § 2a. Congress employs and follows the decennial census figures in reapportioning the Congress for the next ensuing decade, even though state populations may change radically during such period. Undoubtedly, the reasons for this are not only that the federal census is the sole universally accepted method now in existence for tabulating precise population figures, but that adjustments made decennially are reasonable and need not be made more frequently. In Reynolds the Supreme Court recognizes but does not condemn the fact that “* * * reapportioning no more frequently than every 10 years leads to some inbalance in the population of districts toward the end of the decennial period and also to the development of resistance to change on the part of some incumbent legislators.” 377 U.S. at 583 , 84 S.Ct. at 1393 . Indeed, the Court states: “Decennial reapportionment appears to be a rational approach to readjustment of legislative representation in order to take into account population shifts and growth.” Ibid. Examining reapportionment statutes more frequently than every ten years would require interim population statistics. Any statistics used should be statewide and free from bias, but the Opinion admits in note 107 that such interim statistics would be mere estimates. Should the estimate come from the Texas Bureau of Business Research, from Chambers of Commerce, public utilities, cities, market research companies, the highway department, or some other source ? The list of possible sources for “guesstimates” is limited only by the imagination of man. In a case of claimed invidious discrimination, the burden of proving and determining population, and therefore population disparity, other than through the decennial census would be enormous for the parties as well as the Court. Each party would, .of course, choose the statistics most favorable to his point of view. In an age of mobile population, estimates, even responsible estimates, frequently prove to be absolutely incorrect, and should not be the basis for legislative action. Undoubtedly, these are the reasons the Congress relies solely on the decennial census. I am of the view that any apportionment based upon population statistics other than the decennial census would be extremely unwise for either the Legislature or this Court. The Opinion worries that H.B. 67 will govern the election of congressmen for ten years, but such worries seem to be founded upon two assumptions: (1) that the Legislature will not reapportion in 1973; or (2) that if the Legislature does reapportion in 1973, then at that *522 time H.B. 67 may be deficient. The second assumption is expressed in the phrase, “effective review (and relief) would be postponed until the election of 1974.” The answer to these worries is that judicial review will be available in late 1973, early enough to correct any deficiencies prior to the 1974 congressional elections; and judicial review should conform as much as possible, to a schedule based primarily upon a decennial reapportionment scheme. Again with respect, I say we should allow the Texas Legislature time to get into phase with the decennial census for congressional reapportionment purposes, and not require legislation and review every two years — such a process wastes legislative and judicial resources unnecessarily. This Court struck down the former congressional apportionment statute two years ago. Bush v. Martin, 224 F.Supp. 499 (S.D.Tex.1963). Two years later the Legislature passed House Bill 67, challenged in this proceeding. The Opinion now admonishes the Legislature that improvement on H.B. 67 must be effected by 1967 to retain the Courtis “approval.” With or without legislation, there will be another hearing in 1967. Although the Supreme Court in Reynolds says: “ * * * [W] e do not regard the Equal Protection Clause as requiring * * * biennial reapportionment * * 377 U.S. 583 , 84 S.Ct. 1393 , this Court is in effect putting it on a biennial basis. This Court cannot assume the Supreme Court will answer all of the open questions of law, such as burden of proof, by 1967. If the Court is to give an interim approval to H.B. 67 as indicated in the Opinion, it is under a duty to decide the basic issue of burden of proof which has been consciously avoided. Without having such conclusion of law before it, the Supreme Court cannot review this Court's determination of whether plaintiffs have the burden of proving H.B. 67 or its successor unconstitutional or whether defendants have the burden of proving it constitutional. If another hearing is to be had in this case in 1967, it will be of great importance to all concerned that the Supreme Court shall have answered that question. In conclusion of my disagreement with “What of the Future?,” I will note that the Reporter System contains no case in which a federal court has stricken down any reapportionment statute, congressional or state legislative, in which the range of deviation is as low or as small as that of H.B. 67. Also, it reflects no case decided by any federal court in which the case has been held on the docket pending “improvement” by the legislature. This supports the action of the Court in holding H.B. 67 constitutional, but also, it strongly supports the suitability and appropriateness of a dismissal at this time. In the beginning, I indicated my concurrence in the Opinion of the Court except as to the subject matter capsuled in the section entitled “What of the Future ?” But in concurring, I shall briefly elaborate my views with respect to the claimed underrepresentation and over-representation as expressed in numbers of people, rather than in percentages 2 It is true that such percentages, when multiplied by the total population of Texas, reflect large numbers of people, as set forth in the Opinion. The percentages look small but the population figures sound large. Although interesting, this underrepresentation expressed in numbers of people is not dispositive and is somewhat misleading. Actually, the numbers of people affected as such should be accorded little if any weight. Assume arguendo, that the fifteen districts which deviate from the Ideal by 5% or more, deviate not 5% but only to the extent of 3% or 2%, or even 1%. Under any such assumption, plaintiffs’ contention that 5,263,524 Texans live in underrepresented districts would be equally true, numerically speaking. Therefore, in determining the constitutionality or unconstitutionality of a par *523 ticular apportionment, it is the degree of underrepresentation or deviation from the Ideal in a particular district, or the average deviation from the Ideal for all districts, which is significant. For the purpose of the Court’s evaluation from a constitutional standpoint, dilution or disparity which results in invidious discrimination is a question of degree and must be expressed or measured in terms of percentage — not in terms of the numbers of people affected by such percentage. Subject to this concurrence in part therewith and dissent in part therefrom, I have joined in the Opinion of the Court and the Decree of the Court. *524 *525 APPENDIX D DECREE This cause having come on for trial at which all parties, including intervenors, were present by counsel and the Court having heard the evidence and having considered the pleadings, evidence and argument of counsel and being of the view that a decree should be entered in accordance with the opinion of the majority of the Court as reflected in the opinion prepared for the Court by Judge John R. Brown and the special concurrence of Judge Ingraham and the opinion of Judge Noel concurring in part and dissenting in part, which constitutes also the Court’s findings of facts and conclusions of law under F.R.Civ.P. 52(a), filed this date, it is therefore ordered, adjudged and decreed by the Court: FIRST: The Court hereby declares that the present apportionment of Congressional Districts under H.B. 67, Tex.Laws 1965, ch. 349, at 743 [Tex.Rev.Civ.Stat.Ann. art. 197b] is for the present constitutional and therefore valid; SECOND: Plaintiffs’ and Intervenors’ prayers that Defendants be enjoined from conducting 1966 congressional elections pursuant to said H.B. 67 is hereby denied. THIRD: The Court retains jurisdiction of the cause for such other and further orders as may be required and to enable the Texas Legislature, during its 60th regular session convening January 1967 and any special sessions through July 1967, to reconsider and revise as necessary said H.B. 67. . There is, of course, the Constitutional prohibition against racial gerrymandering, -which is not involved in this case. . See pp. 498-500 of the Opinion under sub-title “Sheer Numerical Disparity.’ --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9745445. Public record. Not legal advice.