Motion to Dismiss — White v. Regester

CITATIONS

Board of Regents v. New Left

Education Project, 404 U.S.

541 (1972) -------------------

Connor v. Johnson, 402 U.S.

690 (1971) ------------------

Dial v. Fontaine, 399 U.S. 521

(1970) ------------------------

Gunn v. University Committee,

399 U.S. 383 (1970) ----------

Hutcherson v. Lehtin, 399 U.S.

522 (1970) -------------------

Kilgarlin v. Hill, 386 U.S.

170 (1967)--------------.--.-

Kirkpatrick v. Preisler, 394

U.S. 526 (1969) --------------

Mauzy v. Legislative Redis-

tricting Board, 471 S.W.2d

570 (Tex. 1971) --------------

McCann v. Babbitz, 400 U.S. l

(1970) -----------------------

Moody v. Flowers, 387 U.S. 97

(1967) -----------------------

Perez v. Ledesma, 401 U.S. 82

(1971) -----------------------

Reynolds v. Sims, 377 U.S. 533

(1964) -----------------------

Smith v. Craddick, 471 S.W.2d

375 (Tex. 1971) --------------

Smith v. Garza, 401 U.S, 1006

SY ee eee

Swann v. Adams, 385 U.S. 440

EF by) eee nN

Unborn Child v. Doe, 402 U.S.

M96 (1971) aes eee

Page

12

9,11

10

(ii) -

Cases-Continued

Whitcomb v. Chavis, 403 U.S.

124 (1972) -----------------

Constitutional provision and

statute:

Article III, Section 28, Texas

Constitution-<-----------"-

28 G.8<C- 1253 oce22ean2eoeereer2eeam

IN THE SUPREME COURT OF THE UNITED STATES

October Term, 1972

No. 72-147

BOB BULLOCK, ET AL.,

Appellants

Ve

DIANA REGESTER, ET AL.

ON APPEAL FROM THE UNITED STATES DISTRICT

COURT FOR THE WESTERN DISTRICT OF TEXAS

MOTION TO DISMISS OR AFFIRM

Pursuant to Rule 16(1) of the Rules of

this Court, Dr. George Willeford, Chairman

of the State Executive Committee of the Re-

publican Party of Texas, Mr. Gene Diedrick,

Chairman of the Executive Committee of the

Smith County, Texas Republican Party, and Mr.

Thomas G. Crouch, former Chairman of the Ex-

ecutive Committee of the Dallas County, Texas

Republican Party, move that the appeal be dis

missed, or, in the alternative, that the judg

ment of the district court be affirmed.

STAT EMENT

This is a direct appeal from an order of

a three-judge District Court for the Western

District of Texas holding that the State

(1)

(2)

legislative redistricting scheme for the

State of Texas is unconstitutional and order-

ing immediate reapportionment of two of the

State's 254 counties.

1. These cases involve the reapportion-

ment of the Texas Legislature subsequent to

and based on the 1970 Federal Census.

The Texas Constitution requires the State

Legislature to apportion the state into sen-

atorial and representative districts "at its

first regular session after the publication

of each United States decennial census”

(Article III, Section 28; App. 175E1). If

the Legislature fails to do so, “same shall

be done by the Legislative Redistricting

Board of Texas" (ibid.; App. 176E). In 1971

the Legislature adopted a redistricting plan

for the State House of Representatives, but

did not enact a plan for the State Senate

(App. 9A) °

On August 24, 1971, the Legislative Re-

districting Board began deliberations to

apportion the State into senatorial districts

(App. 187F). A few weeks later the Texas

Supreme Court held that the House redistrict-

ing plan was unconstitutional. Smith v.

Craddick, 471 S.W.2d 375 (Tex. 1971), repro-

duced at App. 178F-185F. The Legislative

Redistricting Board then refused to redis-

trict the House, asserting that it lacked

the power, but the Texas Supreme Court issued

a writ of mandamus ordering the Board to do

so. Mauzy v. islative Redistricting Board,

471 S.W.2d 570 oe 1971), reproduced at

App. 186F-194F. Thereafter, the Board adopted

redistricting plans for the Senate (on October

luapp." refers to the separately-bound

Appendix to the Jurisdictional Statement.

(3)

15, 1971) and for the House (on October 22,

1971). (App. 9A.)

2. Four separate;cases were filed in

four district courts challenging the Board's

redistricting plans. On December 13, 1971,

the Chief Judge of the United States Court

of Appeals for the Fifth Circuit (Judge John

R. Brown) ordered a three-judge court in each

of the four cases, and consolidated the cases

and transferred them to the Austin Division

of the Western District of Texas. In view of

the February 7, 1972, filing deadline for

candidates for office, the parties agreed to

expedite discovery and that any evidence heard

in relation to any one case could be consid-

ered with regard to all of the cases. The

three-judge court convened on January 3, 1972,

and heard evidence for three and one-half

days. (App. 3A-8A.)

- Witnesses for the various plaintiffs

presented evidence showing population devia-

tions in the reapportionment scheme adopted

by the Legislative Redistricting Board, and

testified that the Board's plans discriminated

against Negroes, Mexican-Americans, and other

ethnic and political minorities, and also dis-

criminated on the basis of wealth. Appellants

called no witnesses and indicated that they

believed that they had no obligation to jus-

tify the Board's reapportionment scheme. At

the conclusion of the hearing on January 6,

1972, the court requested that all parties

submit proposed alternative apportionment

plans; several of the plaintiffs submitted

plans, but appellants did not. (App. 8A, 14A,

19A-24A, 29A-31A, 40A-42A, 47A-53A, 61A-62A).

The court issued its comprehensive opin-

ion (App. 1A-62A, 83A-109A) on January 28,

1972, more than a week before the filing

deadline. It held that the 9.9 percent

(4)

population deviation? in the redistricting

plan for the House of Representatives” was

not supported by any rational and consistent

state policy and did not reflect a "good

faith attempt to achieve population equality

as nearly as practicable,” and ruled that

accordingly the plan was unconstitutional

(App. 13A, n. 5; see App. 9A-24A).

While this holding made it unnecessary

“to decide other questions raised by the

plaintiffs pertaining to the entire State of

Texas," the court "“fe[lt] compelled” to de-

velop "some major points of consideration

for the Legislature, specifically * * * re-

garding multimembered districts" (App. 24A,

25A). The evidence “clearly established”

that "it simply costs more" for a candidate

to run for office and to communicate with

the electorate in multi-member districts than

in similarly situated single-member dis-

tricts (App. 27A). Although the metropoli-

tan areas of the State consisted of "very

similar urban electorates living in very

similar geographic and demographic sur-

roundings," they had been redistricted dif-

ferently--Harris County, the largest

2the 9.9 percent deviation was based on

appellants’ computations. The court below

pointed out that the plaintiffs, using a

different method, had calculated the total

population deviation "as about 29.3%, rather

than 9.9%," and noted as “significant” that

the total deviation for two counties alone

(Dallas and Bexar) was "a total of around

21,500 people” (App. 13A-14A, n. 5).

3the redistricting plan for the Senate

was not challenged on the basis of popu-

lation deviation, “although the total de-

viation is 4.5%, involving 16,213 people”

(App. 8A, n. 3).

(5)

metropolitan area, was divided into single-

member districts, while every other major

metropolitan area was made a multi-member

district (App. 30A). The court concluded

that this difference in treatment amounted

to an unjustified “classifying of candidates

and their abilities to run [for office] and

to form political associations according to

wealth, affecting basically and unequally

the poor, * * * and those not members of

established political parties" (ibid.).

With reference to Dallas County, the

court held that the multi-member district-

ing scheme for the House tended "to dilute

or cancel out the vote of Dallas County's

Negro minority," and that therefore "the use

of a multi-member district in Dallas County

[is] unconstitutional" (App. 42A). In Bexar

County, which includes San Antonio, the court

found that Mexican-Americans were an "“invid-

iously disadvantaged" minority group which

had been "effectively removed from the poli-

tical processes," and that the multi-member

House district for Bexar County gave that

group less opportunity to Participate in

elections successfully (App. 53A, 55A). It

concluded that single-member districts were

“constitutionally compelled" in San Antonio,

since they would “obviously be of benefit in

remedying the effects of past and present

discrimination against Mexican-Americans”

(App. 56A). The court rejected a claim that

the Senate districts in Bexar County had been

unlawfully gerrymandered to minimize the

political strength of San Antonio Republicans

(App. 56A-58A), and a claim that the Senate

districts in Harris County improperly di-

luted the votes of the Negro minority (App.

58A-60A) .

The court did not prescribe a new re-

districting plan for the whole State, but

(6)

instead gave the Legislature until July l,

1973, “to perform its functions of redis-

tricting" (App. 61A). In Dallas and Bexar

Counties, however, the court concluded that

immediate relief was required in view of

the “particularly compeling constitutional

infirmities” shown there, involving "racial

inequalities and hindrances," and accord-

ingly adopted single-member redistricting

plans for those counties (App. 62A).4

3. On February 1, 1972, appellants

applied for a stay of judgment, claiming

“that if the redistricting of Dallas and Bexar

Counties into single-member districts under

the court's order was allowed to go into ef-

fect in the forthcoming elections, the re-

structuring of representation in those coun-

ties that would ensue could not be undone if

this Court subsequently reversed the decision

below. Mr. Justice Powell, noting that "the

only present necessity to consider a stay

relates to the District Court's decision with

respect to multi-member districts in Dallas

and Bexar Counties,” denied the stay on Feb-

ruary 7, 1972 (App. .199H, 197H-201H). The

State election process consequently pro-

ceeded in accordance with the district court's

decision; primary elections have been

4vhe court set aside for the 1972 elec-

tions the requirement that candidates for

the House reside in the single-member dis-

trict to be represented, to facilitate the

"transition from multi-member districts in

Dallas and Bexar Counties to single-member

districts” (App. 62A), and also ordered

state officials to “adopt and implement any

and all procedures necessary to properly

effectuate the orders of this Court” (App.

64A). Appellants do not challenge either

of these matters in this appeal.

(7)

conducted using the redistricting plan for

the House found to be deficient, except in

Dallas and Bexar Counties, where the pri-

maries were held pursuant to the single-

member districting plans adopted by the

court.

ARGUMENT

The only issues raised by appellants

are whether the court below erred in holding

that the House redistricting plan for the

whole State is unconstitutional or in order-

ing single-member districts for Dallas and

Bexar Counties. We believe that these issues

are not within the jurisdiction of this Court,

and accordingly that this appeal should be

dismissed. Alternatively, we contend that

the district court correctly determined these

issues by applying settled principles to the

particular facts of this case, and that ple-

nary review of its decision is not warranted.

1. Section 1253 of Title 28, United

States Code, circumscribes in precise terms

this Court's jurisdiction of direct appeals

from three-judge courts: " * * * [A]ny party

may appeal to the Supreme Court from an order

granting or denying * * * an interlocutory or

permanent injunction in any civil action * * *

required by any Act of Congress to be heard

and determined by a district court of three

judges." The order of the district court

declaring unconstitutional the redistricting

plan for the entire State did not grant or

deny any injunction. The court explicitly

refrained from doing so, instead allowing

the State Legislature until July 1, 1973,

"to perform its functions of redistricting”

(App. 61A). Since the court below "has issued

neither an injunction, nor an order granting

or denying one,” this Court has "no power

under §1253 * * * [to] deal with the merits

(8)

of this case” as concerns the plan for the

State as a whole. Gunn v. University Com-

mittee, 399 U.S. 383, 390 (1970) (footnote

omitted).5 See, also, Whitcomb v. Chavis,

403 U.S. 124, 138 n. 19 (1972); Unborn

Child v. Doe, 402 U.S. 936 (1971); Smith v.

Garza, 401 U.S. 1006 (1971); McCann Ve

Babbitz, 400 U.S. 1 (1970); Hutcherson

vy. Lehtin, 399 U.S. 522 (1970); Dial v.

Fontaine, 399 U.S. 521 (1970).

Nor are the district court's orders

prescribing single-member districts for

Dallas and Bexar Counties appealable under

Section 1253. Those orders were premised

on the "particularly compeling constitu-

tional infirmities" (App. 62A) found to ex-

ist in those two counties but not shown to

exist elsewhere. And the multi-member dis-

tricting scheme used for Dallas and Bexar

Counties was not part of a uniform plan; in-

stead, multi-member districting was used,

it was indicated, because of the special

needs and wishes of the people in those two

counties, and there was no overall state-

wide plan (see App. 19A-21A, 31A-35A). The

evidence showed that each legislative dis-

trict in the State was constructed as an

independent, autonomous unit, based on the

peculiar circumstances which the Legisla-

tive Redistricting Board determined existed

there. Furthermore, the court's orders

affect only two (Dallas and Bexar) of the

5as the Court pointed out in Gunn, even

if the action of the district court could be

considered a denial of an injunction because

the injunctive relief sought was not forth-

coming, there still would be no jurisdiction

in this Court since "appellants could not

appeal from an order in their favor” (399

U.S. at 390, n. 5).

(9)

State's 254 counties, and 29 of the 150

seats in the Texas House of Representatives.

In this context, it is clear that the

multi-member district plans for Dallas and

Bexar Counties had only a local impact, and

were not expressive of official, statewide

policy. A three-judge court is not required

to consider the constitutionality of that

kind of state statute. Board of Regents v.

New Left Education Project, 404 U.S. 541

(1972); Perez v. Ledesma, 401 U.S. 82, 86-

88 (1971); Moody v. Flowers, 387 U.S. 97

(1967). Therefore, the district court was

"acting in the capacity of a single-judge

court” in its orders pertaining to Dallas and

Bexar Counties, and consequently "there is no

jurisdiction in this Court to review" those

orders under Section 1253 (Perez v. Ledesma,

supra, 401 U.S. at 86).

2. In any event, the district court

did not err in holding that the House re-

districting plan was unconstitutional or in

ordering single-member districts for Dallas

and Bexar Counties. :

A. The House redistricting plan

for the State, according to appellants’ own

computations, involves a population devia-

tion of 9.9 percent. Appellants’ contention

that this deviation is within permissible

limits and is justified by valid policy con-

siderations is insupportable. This Court

has indicated that in congressional dis-

tricting, "the State [must] make a good-faith

effort to achieve precise mathematical equal-

ity. * * * Unless population variances among

congressional districts are shown to have re-

sulted despite such effort, the State must

justify each variance, no matter how small."

Kirkpatrick v. Preisler, 394 U.S. 526, 530-

531 (1969). To be sure, "[(s]omewhat more

(10)

flexibility may * * * be constitutionally

permissible with respect to state legisla-

tive apportionment than in congressional

districting" (Reynolds v. Sims, 377 U.S.

533, 578 (1964)); but "the overriding objec-

tive" in devising state legislative dis-

tricts, as with congressional districts,

“must be substantial equality of population

among the various districts" (id. at 579),

and the State must justify all deviations.

See, also, Kilgarlin v. Hill, 386 U.S. 120

(1967); Swann v. Adams, 385 U.S. 440 (1967).

In the present case, as the district

court pointed out, "the State has not at-

tempted to explain in terms of rational state

policy its failure to create districts equal

in population as nearly as practicable, nor

has the State sought to justify a single

deviation from precise mathematical equal-

ity" (App. 14A). Appellants' claim that the

population deviations are justified by "the

State constitutional mandate for county in-

tegrity” (J.S. 10) was properly rejected

by the court below as not supportable on the

record here, since in fact the policy of

preserving county boundaries “has been

blatantly violated" (App. 16A; see, also,

id. at ppg 15A-21A, 33A-34A). Thus while,.

as appellants note (J.S. 11), this Court in

Kilgarlin v. Hill, supra, indicated that a

state policy requiring legislative appor-

tionment plans to respect county boundaries

wherever possible might justify some popu-

lation deviation, in view of the abandon-

ment of that policy as concerns the present

plan "there is simply no credibility left

in the rationale advanced by the State in

Kilgarlin" (App. 34A).

Nor are appellants' other purported

justifications persuasive. The suggestion

that the present plan should be sustained

because the deviations were the necessary

(11)

result of “practical politics" (J.S. 14)

is squarely at odds with this Court's ad-

monition in Kirkpartick v. Preisler, supra:

"We agree with the District Court that

‘the rule is one of "practicability" rather

than political “practicality."' * * *

Problems created by partisan politics can-

not justify an apportionment which does not

otherwise pass constitutional muster" (394

U.S. at 533). And appellants' assertion

"that trivial variations 5 or 10 percent

either way from the optimum, or even a

little higher, should be set aside only

when it can be shown such variations result

in meaningful effect on the processes of

government” (J.S. 17-18) is little more than

an attempt to have the Court adopt a de

minimis test, a course which it rejected in

Kirkpatrick as “inconsistent" with the

“whole thrust" of the equality of popula-

tion standard (394 U.S. at 530).

B. Plenary review of the orders

below requiring single-member districts for

Dallas and Bexar Counties is not now war-

ranted. Those orders were not stayed, and

accordingly the State election process has

gone forward pursuant thereto. Primary

elections have been held, and general elec-

tions probably will be completed before this

Court could review the decision below. As

appellants pointed out in their stay appli-

cation, the restructuring of representation

incident to the decision below thus largely

has been, or shortly will be, effected, and

that cannot be undone. In this circumstance,

there is no reason for further review of

these orders.

Moreover, appellants’ arguments con-

cerning these orders are without merit.

This Court has made clear that "when district

courts are forced to fashion apportionment

- (12)

plans, single-member districts are prefer-

able to large multi-member districts as a

general matter." Connor v. Johnson, 402

U.S. 690, 692 (1971). Despite this, appel-

lants contend that the court below erred in

ordering single-member districts for Bexar

County, on the ground that Mexican-Americans,

who the court found have been and are dis-

criminated against, are not a minority and

should not be entitled to favored treatment.

Constitutionally-guaranteed equal protection

does not require, however, that one be ina

minority. Instead, the inquiry is whether

a person, or an identifiable group, is

treated differently than other, similarly

situated persons or groups without justifi-

cation. And especially in an apportionment

@ase like this one, where the whole ques-

tion is whether each person has an equal vote

so that a majority of voters are assured of

being able to elect the candidate of their

choice, it is clear that there is no require-

ment that persons discriminated against be

members of a "minority" in a numerical sense

before they are entitled to receive what

' the Constitution demands, an equal vote.

Appellants do not suggest that Mexican-

Americans are not the subject of discrimina-

tion, or that single-member districts are

not needed to remedy this situation. The

court's order does not provide favored

treatment for Mexican-Americans, as appel-

lants claim, but merely gives them “a rea-

sonable chance" to overcome "past and pres-

ent discrimination" and to participate in

elections (App. 56A).

The assertion that the order regard-

ing Dallas County is not proper because

there is no showing that the voting power

of Negroes was diluted under the proposed

plan does not comport with the record in

this case or the district court's factual

-e

(13)

findings. There is ample evidence estab-

lishing that the multi-member district in

Dallas County discriminates against poor

persons in that county as compared with Pper-

sons in Harris County, where single-member -

districts are used (App. 27A-30A); that no

viable state policy supports the unequal

treatment thus accorded Dallas County citi-

zens (App. 31A-35A); that the black commun-

ity in Dallas County "has been effectively

excluded from participation in the Democratic

primary selection process" (App. 40A); and

that the interests of that community have

been inadequately represented in the State

House of Representatives (App. 41A, 42A).

On these facts, the court below correctly

concluded that appellees met the standard

set forth in Whitcomb v. Chavis, supra, of

proving that the multi-member district in

Dallas County “unconstitutionally operate[s]

to dilute or cancel the voting strength of

a or political elements" (403 U.S. at

144).

CONCLUS ION

For the foregoing reasons, the appeal

should be dismissed, or, in the alternative,

the judgment of the district court should be

affirmed.

Respectfully submitted.

THOMAS G. GEE,

WM. TERRY BRAY,

Attorneys.

August 1972.

CERTIFICATE OF SERVICE

I hereby certify that three (3) copies

of this Motion to Dismiss or Affirm have. %

been served upon each adverse party and ead

other party separately represented in this ©

proceeding by United,States air mail, post-!

age prepaid, this day of August, 1972, |

addressed to counsel for said parties at =

their respective post office addresses. .

liu Torrey V

Wm. Terry Bray)