# Motion to Dismiss — White v. Regester

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Motion to Dismiss
- **Published:** January 1, 1973
- **Citation:** 412 U.S. 755

## Text

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)

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386414_0171%3A07. Public record. Not legal advice.