Appellees Brief — White v. Regester

Supreme Court brief1973

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: INIONS SS Se Se Se Se ee ee ee ee ee oe ee ——— oo oe

RISDICTION ------~---.._______

an,

t.¥

NOE

mre nh 3

+ The adoption by the Redistrict-

: Board of one system of repre-

entative government for Harris

_ County and a differing systen,

"which favors affluent candidates

; and their supporters, for other

| virtually identical metropolitan

> areas of the state constitutes an

» unconstitutional discrimination.

A. There is no rational basis

for the disparate methods

of redistricting Texas

urban areas. -------....

The disparate redistricting

methods result in improper

discrimination, -----~-

No legitimate state interest

Supports the unequal treat-

ment of identically situated

a metropolitan areas. --~-

+ The variances in population among

_ the districts were not justified

| by any rational state policy.

(i)

3. The Court does not have juris-

diction of this appeal under

28 U.S.C. §1253. re eee Gee ane ey sam

CONCLUSION

PROOF OF SERVICE ---------~-~...

Cases:

CITATIONS

Abate v. Mundt, 403 U.S.

182 (1971)

Alabama State Teachers Assn.

- v. Alabama Public School and

cortege Authority, 393 U.S.

69) ------------.~----~-

Board of Regents v. New Left

Skaset Tonal Project, 407 U.s.

Bullock v. Carter, 405 U.S.

972) -------------------

Burns v. Richardson, 384 U.S.

RIE TAOGG) eoctewe wenn enna

Chavis v. Whitcomb, 305 F.Supp.

1364 (S.D. ind. 1969) --------

Connor v. Johnson, 402 U.S.

BT Se aici iterentercterenasinee

Dial v. Fontaine, 399 U.S.

REET. watiirmccrisiemnmnneeme

Fortson v. Dorsey, 379 U.S.

BE ir tiintigieniornisennen—

Gay v. Ruff, 292 U.S. 25 (1934)-

unn

v. Universit Committee

to End the War, S05 U.S. 383

T1976) -----==

Hutcherson v. Lehtin, 399

U.S. 522 (1970)

_Kilgarlin v. Martin, 252 F.

Supp. 4 (S.D. Tex. 1966),

rev'd in part sub nom

Kilgarlin v. Hill, 386 U.S.

Kirkpatrick v. Preisler, 394

U.S. 526 (1969) ee

McCann v. Babbitz, 400 U.S.

DE Career cist eemcmmeces

Mauzy v. Legislative Redis-

tricting Board,

8.W.2d 570

ex. 71) ee ee ee ee ee ee ee ee ee ee ee ee ee oe

Page

a7»

14,

33,

Moody v. Flowers, 387 U.S.

"57 11967) eee oe eases.

Perez v. Ledesma, 401 U.S. 82

nays ee “y. Sims, 377 U.S. 533

olds v. Sims, U

Skolnick v. Board of Commissioners,

369 U.S. 26 (1967) ------------

Skolnick v. Kerner, 260 F.Supp.

-D. IIT. 1566)

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

(Tex.

Smith v. Garza, 401 U.S. 1006

Unborn Child v. Doe, 402 U.S.

1571)

Whitcomb v. Chavis, 403 U.S.

71)

Constitutional provisions

and statutes:

United States Constitution,

First Amendment

United States Constitution,

Fourteenth Amendment

28 U.S.C. §1253

28 U.S.C. §2101(c)

28 U.S.C. §2281

Texas Constitution, Art. III,

§26

Texas Constitution, Art.

§28

State Apportionment Plan,

Representative Districts

NO. .72-147

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1972

BOB BULLOCK, ET AL., Appellants

DIANA REGESTER, ET AL., Appellees.

ON APPEAL FROM THE UNITED STATES DISTRICT

COURT FOR THE WESTERN DISTRICT OF TEXAS

BRIEF OF APPELLEES DR. GEORGE WILLEFORD,

MR. GENE DIEDRICK AND MR. THOMAS G. CROUCH

OPINIONS

_ The opinion of the District Court is re-

ported at 343 F.Supp. 704 (A.Jur.s. 1A-62A,

83A-109A).1 The opinion of Mr. Justice Powell

lea gur.s." refers to the separately-

bound Appendix to the Jurisdictional State-

Ment; "App." to the separately-bound appen-

dix to be printed; and "R." to the record.

References to Appellants' Brief are, un-

fertunately but unavoidably, to the pag-

_ination of the typewritten version of it.

rete wwe = 00 we _ z —

(2)

denying Appellants' request for stay is report

ed at 405 U.S. 1201 (A.Jur.S. 197H-201H).

JURISDICTION

The judgment of the District Court was

entered on January 28, 1972 (A.Jur.S. 63A-82a)?

and the notice of appeal (A.Jur.S. 114B-117p)

was filed on March 27, 1972. This Court noted

jurisdiction on October 10, 1972 (___ U.S.

App. ). Appellants contend that jurisdic-

tion in this Court exists under 28 U.S.C. §§125

and 2101(b). For the reasons set forth in Poj

3 below it is our submission that this appeal j

not within the jurisdiction of this Court.

CONSTITUTIONAL PROVISIONS

AND STATUTES INVOLVED

The First and Fourteenth Amendments to th

Constitution of the United States are involvei

as are Article III, Sections 26 and 28 of the

Constitution of the State of Texas (A.Jur.s.

174E, 175E), providing for the times and metho

of reapportioning the State for elections to

lower house of the State Legislature, the Sta

Apportionment Plan, Representative Districts

(A.Jur.S. 118C-132C), and 28 U.S.C. §1253.

QUESTIONS PRESENTED

1. Whether, in the factural circun-

stances revealed by this record, the adoption

20n February 8, 1972, the Court entered

an order modifying its original judgment,

noting that the modification "solely rect-

ifies clerical errors" (A.Jur.S. 110A).

(3)

' the Redistricting Board of one system of

resentative government for Harris County

and a differing system, which favors affluent

‘candidates and their Supporters, for other vir-

tually identical metropolitan areas of the

State constitutes an unconstitutional discrim-

ination.

i 2. Whether Appellants have justified the

‘admitted maximum population deviation of 9.9

eect between districts on the basis of any

Seg

legitimate State policy.

5, 3. Whether this Court has jurisdiction

of this appeal under 28 U.S.c. §1253.

STATEMENT

This is a reapportionment case in which

various officials of the State of Texas appeal

from the decision of a three-judge district

Court, handed down on January 28, 1972. That

Court entered declaratory judgment that the

Most recent state legislative redistricing

‘scheme was unconstitutional, ordered the re-

apportionment of two of the larger metropolitan

Counties of the State of Texas, and took no

action regarding the other 252 counties pend-

ing an opportunity for the Texas Legislature

to act. The reapportionment scheme under

attack was not the product of the Legislature

of the State of Texas but rather of a special

independent Board, the Legislative Redistrict-

ing Board, acting under extreme, self-incurred

time pressures.

1. Events leading up to litigation.

Article III, Section 28, of the Constitu-

tion of the State of Texas provides that the

‘Texas Legislature shall, at its first regular

(4)

session after each decennial census, apportion

the State into senatorial and representative

districts. In addition it establishes, agains

a failure of the Legislature to apportion, the

Legislative Redistricting Board qt Texas, con-

posed of five elected officials. It also re.

quires that this Board meet within ninety

the end of such a failing legislative ses-

sion and itself redistrict the State within

sixty days of its first meeting. Thus the

62nd Session of the Texas Legislature convened

in January, 1971, under state constitutional

mandate to redistrict both Senate and House

(A.Jur.S. 9A). When it adjourned May 13, 197)

it had attempted to redistrict the House but

not the Senate (A.Jur.S. 9A). It was therefor

apparent by middle May of 1971 that action by

the Legislative Redistricting Board would be

necessary.

Ninety days were permitted for that

Board to meet; it first convened on August

24, 1971, the 85th day. See Mauzy v.

qcaisiative Redistricting Board, 471

W. , at 572 (Tex. 1571). By the

time it convened, the House redistricting

act passed by the Legislature had already

been declared by the state trial court to

violate Article III, Section 26, of the

Constitution of the State of Texas, a deci-

sion shortly affirmed by the Texas Supreme

Court. Smith v. Craddick, 471 S.W.2d 375

(Tex. 1971). The Board nevertheless refused

3fhe officials comprising the Board are

the Lieutenant Governor of Texas, the Speaker

of the the House of Representatives, the

Attorney General, the Comptroller of Public

Accounts, and the Commissioner of the General

Land Office (Art. III, §28, Tex. Const.).

(5)

“to redistrict the House until ordered to do

jo by the State Supreme Court on September

7, 1971, in the Mauzy decision. On that

late, over half of the sixty days granted

“ Board by the Texas Constitution to act

‘after convening had passed. October a3,

“1971 was the sixieth and last day. On Friday,

“October 22, 1971, the Board enacted its House

“plan, having enacted a Senate plan one week

earlier (A.Jur.S. 9A). These suits followed.

2. Procedural matters preliminary to trial.

“= The order of the three-judge court dealt

‘with four consolidated cases which were orig-

-dnally filed in four separate courts, the

‘Wnited States District Courts for the Eastern,

Northern, Southern, and Western Districts of

Texas, by four separate groups of plaintiffs

-A.Jur.S. 3A-6A). On December 13, 1971, Chief

Judge John R. Brown, Chief Judge of the United

‘States Court of Appeals for the Fifth Circuit,

entered an order constituting a three-judge

court in each of the four cases, consolidated

‘the cases for hearing and submission, and

transferred them to the Austin Division of

the Western District of Texas (A.Jur.s.

6A-7A). A joint pre-trial conference was held

din Austin, Texas, on December 22, 1971, and

@Judge Justice, the managing judge of the three-

Judge court, entered an order establishing ex-

“pedited discovery procedures (A.Jur.S. 8A).

Pursuant to that order the depositions of the

Members of the Legislative Redistricting Board,

the staff of that Board, and various public

officials and private citizens throughout

~the State of. Texas were taken during the week

“of December 27-31, 1971. On their Own motions,

Certain_of these Appellees, Dr. George

-Willeford and Mr. Gene Diedrick, respectively

Chairman of the Republican State Executive

Committee and Chairman of the Republican Execu-

tive Committee of Smith County, Texas, who had

(6)

been joined as parties defendant in the suit

filed in the Eastern District of Texas, were

realigned as parties plaintiff (A.Jur.s. 8A),

On December 31, 1971, a final pre-trial con-

ference was held where it was stipulated that

any evidencehcard in any one case could be

considered by the Court in all (A.Jur.s. 8A).

3. Conduct of the trial.

On January 3, 1972, the three-judge court

convened in Austin, Texas, heard live evidence

for three and one-half days, and received nm-

erous depositions containing further test

After closing arguments, the case was submitts

to the Court on January 6, 1972. Throughout

this extensive hearing the State of Texas mai;

tained, as it does before this Court, that it

had no obligation to\ introduce evidence or

otherwise to justify the reapportionment sche

of the Legislative Redistricting Board, conte

ing itself with the general position that any

population deviations between districts were

trivial ones resulting from the Board's effort

to observe county lines and ignoring, as does

its brief here, the question of the unequal

treatment by the Board plan of essentially

identical metropolitan areas: Houston, Dalla

and San Antonio. No evidence was offered by

the State to justify the population deviation

in the Board's scheme, nor any establishing ag .

State interest in the particular reapportionm@ *|

scheme adopted by the Board. Moreover, at thi =

conclusion of the hearing on January 6, 1973, 8

the Court requested that all parties submit

proposed alternative legislative reapportion-

ment plans, but the State of Texas refused to

submit any statewide plan or even a plan for

any portion of the State.

Plaintiffs, for their part, introduced

both lay and expert testimony and other evider

bearing on the motives and procedures of the

(7)

ard in adopting the plans under attack; the

culiar groupings and divisions of counties

be found in the plan; the want of differ-

an's districts;

tics, and past and present social and legis-

ive treatment accorded Texas' Negro and

can~American citizens--with special refer-

’ de-

d in para-

faph 4 following. We shall have occasion to

fer to specific portions of this evidence

the arguments to follow.

The three-judge Court considered the

“ease for twenty-two days and issued a detailed

curiam opinion, over sixty pages in length,

hich was accompanied by substantial separate

inions by both Judge Justice and Judge Wood.

Significant findings of the Court below.

The Court below found the State Senate

to be free from constitutional defect.

> plan for the State House of Representatives

3, however, found defective: The Court in-

cated that on one mode of computation the

a's plan provided for as much as 21.6 per-

t population deviation (A.Jur.S. 13a, n.5)

- found a deviation of 9.9 percent according

the State's own figures; found that the

‘State's justification of these deviations--

a ——

“

(8)

fitfully, 4 and that there was no evidence

to indicate why the Board had followed this

policy in some places and not in others

(A.Jur.S. 16A-18A); that the State had pre-

viously announced a firm policy that there

.were to be no multi-member, at-large dis-

tricts that encompassed more than 1,000,000

people (A.Jur.S. 20A-21A) and that the State

had abandoned this policy without explana-

tion; that the Legislative Redistricting

Board's plan was not the product of legis-

lative action but of a Board of five members,

only one of whom was a member of the legisla-

ture (A.Jur.S. 19A-21A); that it cost a po-

tential candidate for a position as represent-

ative to the State House of Representatives

in Dallas County, who must seek the votes

4vhe Board plan cuts the boundaries of 19

counties (A.Jur.S. 15A). Each of four

counties--Smith, Brazoria, Hidalgo and Jef-

ferson--is doubly dismembered, its surplus

population being divided between two other

districts (A.Jur.S. 16A). Appellees were

therefore at first perplexed to read in

Appellants' Brief statements such as "The...

reapportionment...makes only one division

of a small county.... (p. 6)." Apparently,

however, Appellants intend the reader to

understand by this language, not that only

one county is divided and that a small one,

but that of the many counties divided only

one is small; and that the Texas Constitu-

tion, Article III, §26, lays some special

emphasis on small counties. See, also,

the discussion at pp. 37-39, infra.

ail (9)

of a constituency of 1,327,000 people,> in

“Bexar County (800,000), and in other metro-

politan multi-member districts, a great deal

“more money to seek office than a candidate

for the same position from Harris County

(Houston), who must seek the votes of a con-

stituency of approximately 75,000 people

e ~fA.Jur.S. 28A-30A); that by the only evi-

dence before the Court there are no meaning-

ful differences between Harris and Dallas

Counties (A.Jur.S. 30A); that this difference

8, in treatment of equal urban electorates re-

a- sults in a classifying of candidates and

their abilities to run and form political

nt- associations according to wealth, affecting

basically and unequally the poor and those

not members of established political parties

(A.Jur.S. 30A); that the State offered no

justification for this disparate treatment

9 (A.Jur.S. 26A-34A); that there has been a

long history of racial discrimination by

the State of Texas against Negroes (A.Jur.

S. 38A-39A); that the multi-member appor-

tionment scheme operates to cancel the

voting strength of racial and political

finorities in Dallas County, Texas, and

that the political participation of Negroes

Sit is interesting to note, as the Court

below did (A.Jur.s. 38A), that thirty United

States Senators run to smaller constituencies

than had to be faced by one who wished to

represent Dallas County in the Texas House

of Representatives under the Board's multi-

Member plan.

The combined Senatorial constituencies

of Alaska, Nevada and Wyoming are signifi-

cantly smaller than this one county-wide .

district. The State admits that there is

mo legislative district in the United States

darger than Dallas County (R.~1086).

(10)

in Dallas County, Texas, had been a result

of the patronage of the Dallas Committee

for Responsible Government, a political

organization of powerful white business

leaders who designate the number of Negroes

who shall seek office and who select the

Negro candidates for office (A.Jur.S. 36A-

41A); that the record evidences a recurring

poor performance on the part of the Dallas

County delegation to the Texas House of

Representatives regarding Negro intérests

(A.Jur. S. 41A); that there has been a long

history of discrimination by the State

of Texas against Mexican-Americans (A.Jur.

S. 45A); that the multi-member apportion-

ment scheme opeates to cancel the voting

strength of racial, ethnic, and political

minorities in Bexar County, Texas (A.Jur.

S. 42A-56A); that the San Antonio Repub-

licans failed in their effort to prove

an unlawful gerrymander with respect to

the senatorial districts in Bexar County,

Texas (A.Jur.s. S6A-58A); that the Harris

County plaintiffs failed to prove that the

senatorial reapportionment scheme for those

senatorial districts located in Harris

County was unlawfully gerrymandered (A. Jur.

S. 58A-60A); that the legislature should be

given another Opportunity to establish a

statewide reapportionment plan, but that

the Board's particular multi-member appor-

tionment schemes in Dallas and Bexar Counties

contained such compelling constitutional de-

fects as to require immediate relief (A.Jur.

Ss. 61A-6 2A) .

5S. Progress of the appeal.

After timely notice of appeal, the State

sought a stay of the judgment insofar as it

reapportioned Dallas and Bexar Counties into

single-member districts in parity with Harris

County. Thi's was denied by Mr. Justice Powell

(11)

“with opinion. 45 U.s. 1201 (A.gur.s. 197H) .

‘Probable jurisdiction was noted on October 10,

1972 (App.” i

SUMMARY OF ARGUMENT

1. The Plan attacked unconstitutionall dis-

Sreganates between equals by adopting two

erent systems of representative govern-

ment for identical urban areas, one of

which favors the affluent candidate and his

Supporters.

The Legislative Redistricting Board has

decreed single-member districts, each in the

75,000-voter range, for Harris County, (Houston)

Texas, the largest urban area in Texas. For

all other ubran areas it dispensed a different

system of representation--at-large representa-

tives elected from multi-member districts. The

Dallas district contained 1,327,000 people and

elected 18 representatives on an essentially

county-wide basis. Over 830,000 people, elect-

ing 11 representatives, composed the Bexar (San

Antonio) district. The Dallas district is the

largest in the Country, more populous than 15

states, the Bexar district larger than 1l.

Such enormous districts unreasonably discrim-

inate against the inpecunious candidate and his

Supporters by making low-expense campaigns im-

possible and by placing them at the disposal of

the established and the affluent.

It was amply established, indeed undis-

puted in the record, that the Harris, Dallas

and Bexar urban electorates are essentially

identical for apportionment purposes, having

no demographic or geographic distinctions of

any civic significance. All contain discrete

and substantial pockets of Negro and Mexican-

American voters, who have a recent local his-

‘tory of racial and economic discrimination

(12)

imposed not only by societal but by state

action, and of Republicans, the minority

political party in Texas.

All governmental experts and most lay

witnesses who testified agreed, as has this

Court in its decisions, that the two systems

have markedly different consequences and that

the single-member system is the preferable

model of representative government. It is

clear in the record that representative

responsibility, voter knowledge and even

identification of candidates and representa-

tives, representative efficiency and ability

to represent the range of interests among

his constituents, all decrease in a progres-

sion at least arithmetical as constituent

numbers increase.

The reverse is true of the expense of

getting elected, which increases to a quan-

tum-jump at the point where bill-boards and

shoe-leather are no longer practical cam-

paigning tools. At this point, television

and newspaper techniques become essential.

As the record shows, these are inordinately

expensive, and tyrannically so in Dallas,

for peculiar local reasons. The record

further shows that, in Dallas and Bexar

Counties, the vastness of the electorate

produced by the Board's plan destroys any

hope of the non-affluent candidate and his

Supporters to conduct an effective campaign,

placing him at the disposal of the affluent

and established if he is to have any hopes

of success. It further shows that this

is precisely what has happened: in Dallas

County, it is the DCRG which determines

how many and who the Negro candidates will

be; in Bexar County, the GGL performs the

same office for Mexican-Americans. Without

such establishment support, the record shows,

it is impossible for a poor candidate to be

‘

sa (13)

nominated or elected; with it he can hardly

lose. And because of their submergence in

the partisan sea, the Republican areas are

customarily frozen out of success in county-

wide elections entirely, though they repeat-

edly win local races run on a smaller-dis-

trict basis both in Dallas and Bexar Counties.

Harris County, by comparison, is accorded

the benefits of a neutral and non-discrim-

inatory system of single-member districts

having electorates in the 75,000 population

range, which are reachable by various cam-

paigning methods.

Nothing inherent in the Texas situa-

tion causes these disparities; it is the

Board's plan which does so. |

Though neither districting method is

ordinarily impermissible, on this record

showing at-large districts of the size and

in the circumstances presented by Dallas and

Bexar are even more invidious than the Texas-

size filing fees invalidated in Bullock v.

Carter, 405 U.S. 134 (1972). They are con-

stitutionally infirm for the reasons there

stated, as well as on general First and

Fourteenth Amendment principles of freedom

of political association, due process, and/

equal protection. At any rate, they are

plainly invalid unless shown to be reason-

ably necessary to some legitimate state

objective, rationally pursued.

Appellants' brief does not discuss the

questions raised by this point, though its

argument to the trial court discussed little

else. The sole justification for the Board

plan advanced by the brief is the preserva-

tion of county lines, which is irrelevant

to these questions. These are as well-

preserved by single-member as by at-large

_@istricts within the county...

(14)

The Board members testified to no ra-

tional bases for these decisions. Two sug-

gested local sentiment in Dallas as their

guide. That local sentiment in Dallas was

for at-large races is utterly refuted by

the record. The record further shows that

it was similarly refuted before the Board,

at its meager and perfunctory hearings.

The record also shows that the supposed ’

state policy advanced to the district court

and this Court in Kilgarlin v. Martin,

252 F.Supp. 404, at ita (S.D. Tex. 1964),

‘rev'd in part sub nom. Kilgarlin v. Hill,

386 U.S. 120 (1967), of Timiting districts

to 1,000,000 population, was ignored by

the Board. /

One Board member testified that time

pressure and schedule conflicts among Board

members prevented their being able to divide

urban areas, another that Dallas had always

been multi-member so why change it, and

another that he was for single-member dis-

tricts but thought a majority of the Board

would vote against them so never proposed

them.

These are all the reasons advanced by

anyone, formally or informally, for the dis-

parate treatment given Harris, Dallas and

Bexar by the Board. There was no legitimate

State policy involved, and very little

policy at all. Since no justification is

shown, and since the plan is seriously and

invidiously discriminatory between citizens

equally situated, it must fail.

a. & llants were required to justify the

admitted, significant population devia-

tion between Hlatetote and the arguments

Offered do not do so.

(16)

and an insistance on being more constitu-

tional than the Supreme Court of Texas.

Instead, in fact, the plan contains

nineteen departures from the actual con-

stitutional mandate--nineteen counties are

divided--and four direct violations of the

Texas Supreme Court's explicit warning in

Craddick against fragmenting counties in

more than two parts. Other glaring defic-

iencies, some of which are detailed in the

Opinion below (A.Jur.s. 13A-18A), appear in

the plan, producing unnecessary deviations

‘for reasons unrelated to preserving county

lines.

Nor is there any evidence of the vaunt-

ed “good faith effort" by the Board. The

House plan was, in fact, drawn by the Lt.

Governor's assistant, Mr. Spellings, within

about a 48-hour period, starting from scratch,

He did so with only one instruction from any

Board member, not to use urban single-member

districts except in Harris County, and the

plan which he drew was blessed by the Board

the next day. And the record even contains

an admission by one Board member that it

was his understanding that the Board was

striving, not for population equality be-

tween districts, but for deviations which

did not exceed 5 percent off the average

(Calvert Dep. 25). See Kirkpatrick v.

Preisler, 394 U.S. 526, at 531 (1969).

3. The Three-Judge District Court did not

enter an injunction having statewide

ct, therefore jurisdiction in this

ourt is lacking.

The only injunctive relief granted by

the Court below had impact on only two of

the State's 254 counties. Jurisdiction in

this Court under 28 U.S.C. §1253 therefore

does not exist. Under such decisions of

(17)

. this Court as Gunn Vv. Universit Committee

to End the War, 399 U.S. 383 11370) and

Board of Regents vy. New Left Educational

roject, 704 U.S. 541 (1572), as well as

ckelshaus vy. Chavis, 403 u.s. 914 (1971)

an tcomb v. Chav Ss, 403 U.S. 124, 138,

ARGUMENT

1. THE ADOPTION BY THE REDISTRICTING

BOARD OF ONE SYSTEM OF REPRESENTATIVE GOVERN-

Equal Protection requires "...the uni-

form treatment of persons standing in the

same relation to the governmental action

questioned or challenged." Reynolds Vv.

Sims, 377 U.s. 533, at 565. “The voters

comprising the multi-member constituencies

(18)

of Dallas and Bexar Counties® constitute

bodies standing in the same relationship to

the exercise of the state's apportioning

power as those of Harris County; for no or

no sufficient reason, that power has dealt

with the sensitive area of their franchise

in a manner not only significantly differ-

ent, but calculated to disadvantage further

the poor, the minority, the outsider. The

instance at hand is most extreme: the larg-

est multi-member legislative district known

_ by any participant in the proceedings to |

exist in this nation. We emphasize that

these arguments are entirely independent of

those grounded in population deviation and

the other deficiencies of the Board plan,

though. the cumulative effect of all these

deficiencies is peculiarly invidious.

A. There is no rational basis for

the disparate methods of redis-

tricting Texas urban areas.

The Dallas County district consists

of..more thdn 1,300,000 persons (A.Jur.s.

37A), and is the most densely populated area

in Texas (R. 386). Its population exceeds

that of fifteen states (A.Jur.S. 38A). Under

the Board plan, eighteen representatives,

well over one-tenth of the state lower house,

were to be elected at large from this district

This was almost certainly the largest legis-

lative district in the United States. Appel-

lants admit (R. 1028) there was none larger.

Almost one-third of the membership of the

Sand those of the other metropolitan,

multi-member districts in Texas under the

Board plan.

(19)

United States Senate runs to smaller con-

stituencies (A.Jur.S. 38A); by the current

census, United States Congressmen from Texas

are elected from constitutencies roughly one-

third the size of this monstrous district.

Submerged within the area's population lie

geographically-discrete, significant, ethnic

minorities, Negroes and Mexican-Americans,

and a like political one, Republicans (R.

201, 728, 229).

Likewise”under the Board plan, eleven

at-large House delegates were to be elected

from the Bexar cigs strict, site of the

City of San Antonio. ifhrs area presents a

picture differing from that just described

in Dallas County in two respects only. The

Bexar district's population is 830,000 plus

(A.Jur.S. 48A), exceeding that of eleven

states (A.Jur.S. 38A), and the Mexican-

American is in a numerical plurality (A.

Jur.S. 49A). However, the same minority

pockets, ethnic (R. 524-7) and political

(R. 983) exist.

From these two multi-member districts,

then, were to come a total of twenty-nine

_ representatives to the 150-member Texas

House, almost one-fifth of its entire men-

_ bership. Other multi-member districts

throughout Texas, all metropolitan and

none shown to differ materially from any

_ Other Texas urban area except in popula-

_ tion, were to contribute an additional

thirty-one members to the House (A.Jur.s.

119C-126C). These districts range in size

from the Tarrant County (Ft. Worth) dis-

trict, with its 600,000-plus population

(A.Jur.S. 28A), down to Hidalgo County--

sundered in three but relentlessly multi-

membered as well (A.Jur.s. 125C) --with

_ its 145,000 core district (A.Jur.S. 28A).

—. Had Harris County, which emcompasses the

(20)

City of Houston, been similarly dealt

with by the Board, its twenty-three at-

large delegates, with the other multi-

member district delegates, would have

constituted a tidy majority of the Texas

House.

But it was not. Instead Harris

County, alone of all the metropolitan

areas of the state, was divided into

single-member districts, twenty-three

of them. And this despite the fact, un-

disputed in this record, that the geograph-

ic and demographic characteristics of Harris

County were virtually identical to those

of Dallas and of Bexar Counties (A.Jur.

S. 30A). No witness was able to point

out any difference between their essen-

tially similar, urban electorates; on the

contrary, many testified there was no mat-

erial difference (R. 233, 300, 370-1, 840).

B. The disparate redistricting methods

result in improper discrimination.

At first blush it may seem that the

Board's decision’ that Dallas County and

others similarly situated should be multi-

member while Harris (Houston) alone should be

single-member is without significant conse-

quences to voter or candidate. After all,

assuming the population arithmetic comes out

satisfactorily, the voters lumped together in

the multi-me®ber pool have, collectively, the

7If such it was. As we shall shortly

note, the testimony of the Board members

indicates that at best the "decision" was

simply something that happened, the product

of inattention, misapprehension, indiffer-

ence and inertia. .

(21)

same sort of proportionate strength in the

legislature which they would have had from

aggregated single-member districts compris-

ing the same population. Moreover, it is

arguable that the multi-member constituent

“possesses at least one and perhaps two ad-

vantages over his single-member counterpart.

He clearly has a greater number of legisla-

tors both beholden and aspiring to his vote

and hence presumably attentive to his views.

And since multi-member districts appear in-

exorably to produce local political sub-

parties,® with their sponsored slates of

candidates, there may be a greater degree

of cohesiveness among delegations so elect-

ed, at least among those running on the same

slate. On the other hand, the single-member

district clearly possesses numerous advant-

ages, which led the governmental experts who

testified (R. 228, 301-2), as well as this

Court in a prior opinion, 9 to favor it as

a preferable model of representative govern-

ment: improved rapport between representa-

tive and constituent, resulting in better

accountability to the voter and a better

Opportunity for the representative to know

his constituents' views; a manageable range

of interests to represent, as contrasted

. with the impossibility in a large multi-

member district for the representative to

_ §Fepresent the vast range of conflicting

nment (DCRG) for county

elections, both in Dallas County (R. 686),

and the Good Government League (GGL) in

Bexar County (R. 1002).

-_ %connor v. Johnson, 402 U.S. 690,. 692

(1971).

(22)

views and interests necessarily encompassed

even if he could know them (R. 228, 289,

344-5); and, more practically yet, the

multi-member representative's inability

even to respond to the mass of communica-

tions directed to him from his aggregated

constituents (R. 451, 817).

Neither method of redistricting is

automatically impermissible. Indeed,

this Court has consistently held that ord-

inarily a state may choose either of the

two models of representation. E.g., Whitcomb

v. Chavis, 403 U.S. 124 (1972); Burns v.

Richardson, 384 U.S. 73 (1966); Fortson Vv.

Dorsey, 379 U.S. 433 (1965). But the multi-

member districts presented in this case are

not ordinary. Their extraordinary size

combined with the significant minority

pockets dispersed throughout them render

them, as the Court below found, constitu-

tionally infirm.

In Dallas and Bexar Counties, the vast-

ness of this amorphous electorate confronted

‘by the potential candidate rules out all can-

paigning save the high-expense methods of

television, radio and newspaper (R. 834, 632,

641). Dallas presents a further turn of the

screw: because of its high-density population,

the cost of television, calculated by refer-

ence to number of viewers, requires the cand-

idate to pay for large amounts of useless

coverage beyond the district in order to be

seen within it (R. 834); the major newspaper

in Dallas is in parity because of its state-

wide circulation, upon which its advertising

rates are quite-properly calcuated (R. 836-7).

Door-to-door campaigning and other methods

appropriate to local, low-budget races are

thus consigned by the redistricter to the

rubbish heap (R. 232, 253-4, 641).

(23)

With them go all hopes of the poorly-

financed candidate to campaign for nomination

in the all-important Democratic primary (and

of those who would vote for him of their

chance to do so), as well as most hopes of

the minority Republicans to achieve the name-

identification in general elections needful

to any reasoned hope of success (R. 823,

847, see 811-13).

And so, propelled by the heavy hand of

the redistricter, the minority or inpecun-

ious candidate who maintains despite all re-

strictions his desire to run, knocks on the

bosses’ door with hat in hand. Unable to

bear the expense of his own campaign, yet

still wishing a chance to win, he has no

other choice (R. 789). The uncontradicted

testimony of witness after witnessl0 estab-

lished that in Dallas County is virtually

impossible, because of the county-wide dis-

trict, to be nominated for the Legislature

unless the candidate is acceptable to and

Supported by the DCRG.

Thus is is the DCRG which decides how

many Negroes (R. 427) and which ones (R. 261)

will be nominated by the Democratic Party in

Dallas. As Mr. William H. Clark, III, a

director of the DCRG, testified, for the 1972

races the DCRG had decided to pick three Negro

nominees and one Mexican-American (R. 943).

And in San Antonio, it is the GGL which

performs the same function as to the Mexican-

10see, €-g-., the testimony of the follow-

ing witnesses: Weiser (R. 218-221); Mauzy

(R. 341, 348); Conrad (R. 404); Holmes (R.

445); Allen (R. 695).

(24)

American, hand-picking candidates (R. 1002)

without reference to the Mexican-American

communities' wishes (R. 1003) and rolling

over the pitiful efforts of the "Barrio"

candidates (R. 629) by means of massive

expenditures (R. 628-9). Two of the State's

own witnesses admitted the restrictive ef-

fect on the Mexican-American franchise of

the Bexar County multi-member district. Mr.

Barrera, a former Secretary of State of

Texas, at first testified that such dis-

tricting prevented Mexican-Americans from

having a full participation in Bexar County

political processes (R. 558), and later

backed off to the point of averring that

under it they do not get as "representative

a representation" (R. 584). Mr. Garza, a

ten-year GGL member and City Councilman

(R. 618-19), felt that the multi-member dis-

trict offered the Mexican-American a full

but “rather restrictive" opportunity (R.

624). As for the effect on Republicans, it

was Mr. Garza's view that they were more dis-

criminated against in San Antonio than the

ethnic minorities (R. 622).

That the same observation is true in

Dallas was amply born out by the testimony

of Fred Agnich, founder of a major Dallas-

based concern and a Republican House delegate

(R. 808-830). He outlined the crushing bur-

den imposed by the multi-member Dallas dis-

trict on candidate recruitment (R. 811), oc-

casioned by the tremendous sums required by

the necessary use of television in such a

district (R. 813). A serious, expert study

made in 1970 by professionals indicated that,

to have a chance to win, a fifteen-man Repub-

lican ticket would need $162,000 minimum to

$220,000 optimum, with each candidate rais-

ing additional money for his own race (R.

814-15). Agnich himself spent $31,000 on

his 1970 campaign (R. 815) which, despite

(25) j

his wide and favorable community reputation

(R. 809), procured him the $4,800 per yearll

office by the margin of 730 votes out of

247,000 cast (R. 816).

Such financial t

reason, is the direct result of these swol-

len, multi-member

of the poor-~especially the poorest:

Mexican-Americans of the "Barrio" (R. 524-

525) and Negroes (R. 343).

It should be e

referred

- It well may be, for

example, that because of constitutional re-

quirements of population parity combined

with the vast and thinly-populated areas of

West Texas, districts must necessarily be

there created which are more expensive to

campaign in than a shoe-leather, single-

member district in the Houston inner city.

Such situations are unavoidable in the

nature of things and have no bearing on

the case at bar: here we treat of matters

which might and should have been otherwise

but for the Board.

Finally, it was undisputed in the re-

cord that the larger the multi-member dis-

trict, the mor

“expense campaign

techniques. As has been noted, there are

none larger than the Board's Dallas mon-

llpius per diem and mileage during the

Sessions. Tex. Const., Art. III, §24.

(26)

strosity and few than its Bexar. and Tarrant

County delineations. :

The Board's choice of these multi-member

districts thus presents yet another feature

of the Texas political system calculated,

like the filing fees invalidated by this

Court in Bullock v. Carter, 405 U.S. 134

(1972), to fall with heavy and unequal ef-

fect on voters and candidates according to

their economic status. It would be hard to

find language more apposite to the case at

bar than that of Chief Justice Burger speak-

ing for a unanimous Court in that case:

"Many potential office seekers

lacking both personal wealth and

affluent backers are in every

practical sense precluded from

seeking the nomination of their

chosen party, no matter how qual-

ified they might be and no matter

how broad or enthusiastic their

popular support. The effect of

this exclusionary mechanism on

voters is neither incidental nor

remote. Not only are voters sub-

stantially limited in their choice

of candidates, but also there is

the obvious likelihood that this

limitation would fall more heavily

on the less affluent segment of .

the community whose favorites may

be unable to pay the large costs

required by the Texas system. To

the extent that the system requires

candidates to rely on contributions

from voters in order to pay the :

assessments, a phenomenon that can

hardly be rare in light of the size

of the fees, it tends to deny some

voters the opportunity to vote for

a candidate of their choosing; at

the same time it gives the afflu-

(27)

ent the power to place on the

ballot their own names or the names

of persons they favor. Appellants

do not dispute that this is endemic

to the system. This disparity in

voting power based on wealth can-

not be described by reference to

discrete and precisely defined

segments of the community as is

typical of inequities challenged

under the Equal Protection Clause,

and there are doubtless some in-

stances of candidates represent-

ing the view of voters of modest

means who are able to pay the re-

quired fee. But we would ignore

reality were we not to recognize

that this sytem falls with unequal

weight on voters, as well as cand-

idates, according to their economic

status.

"Because the Texas filing-fee

scheme has a real and appreciable

impact on the exercise of the fran-

chise, and because this impact is re-

lated to the resources of the voters

Supporting a particular candidate,

we conclude, as in Harper, that the

laws must be ‘closely scrutinized'

and found reasonably necessary to

the accomplishment of legitimate

state objectives in order to pass

constitutional muster." . 405 U.S. %

134, at 143-4, —

In Harris County, by contrast, twenty-

three single-member districts were decreed by

the Board (A.Jur.S. 127C-128C), each of approx-

imately 75,000 persons, reachable by a variety

of campaigning methods including inexpensive

ones, which do not unreasonably favor the afflu

Mm ent candidate (R. 232).

(28)

No legitimate state interest su rts

the unequal treatment of identical}:

situated metropolitan areas.

The serious injury that falls upon th

residents of Dallas and Bexar Counties and of

the other metropolitan areas of Texas because

of the Board's choice of multi-member repre-

sentation for them, rather than single-member

representation as provided for the residents

of Harris County, could possibly be justified,

like any injurious unequal treatment, by som

important state interest that was fostered by

that choice. The record here, however, does

not reveal that any state interest was fosters

by the Board's choice.

The only justification proffered for the

unequal treatment was that the apportionment

systems employed were preferred by the resid

of the areas where they were used.l2 As to

Harris County this is doubtless correct; but

as to Dallas County, as noted by the Court be

low (A.Jur.S. 31A),

untrue.

Dallas and that a majority of those who appea

ed before it were for single-member districts

(R. 436). Presentations were made before

the Board itself by Dallas witnesses to like

effect (R. 61, 354). And to cap all, the

Board was furnished the testimony of Victor

F. Robertson, Jr., a highly qualified (R.

775) public opinion and market research

analyst, regarding the results of various

l2vartin Dep. 31, Calvert 13.

(29)

public opinion podls taken by him in the

‘Dallas area from 1966 (R. 791) through late

1968 (R. 792) and extended to the date of

his testimony (R. 792-3), for Clients rang-

ing from the AFL-CIO through the CCA and

Conservative Democrats to the Republicans

(R. 777). He testified before the Board

and before the Court below that these showed

a basic and continuing trend in Dallas of

almost 3 to 1 in favor of Single-member dis-

tricts among those who made a choice (R.

792-3). ;

This powerful testimony received vary-

ing receptions from the Board members who

heard it. Lt. Governor Barnes was not pres-

ent, but knew-of the polls from newspaper

reports (Barnes Dep. 126). His only re-

sponse was to note the importance to polls

of how the question is asked (Barnes Dep.

126).13 attorney General Martin recalled

the testimony regarding the poll, testified

that he considered it (Martin Dep. 90-91),

and further testified that he multi-membered

Dallas County in a disinterested response to

the wishes of the people there (Martin Dep.

—A3yr, Robertson's question was (R. 794):

"AS you noticed, Dallas County voters

will choose 15 members for the Texas House

of Representatives this year. Some people

think each member should be elected from

his own individual district. Some think ”

he should be elected by the whole county.

In your Opinion which is better, individual

.~ districts or county-wide?"

(30)

31, 63).44 mr. Calvert, the Comptroller o¢

Public Accounts, testified that the wishes

of the people in Dallas moved him also to

multi-member it (Calvert Dep. 13), that he

did not recall any testimony about a 61

percent poll favorable to single-member

districts, which made very little impres-

sion on him and which he gave very little

consideration (Calvert Dep. 62-63). Calvert

testified as well that he paid small atten-

tion to the testimony before the Board,

since there were always two sides to it

(Calvert Dep. 65-66), referring to the

testimony by a pejorative epithet (Calvert

Dep. 66). Even if majority wishes were a

justification for depriving identifiable

groups of an equal opportunity to partic-

ipate in the political process, it was

plainly established in this case that the

imaginary majority wish was at best a post

hoc rationalization for the Board's choice.

A final some-time justification, offer-

ed by the state to the District Court in the

1966 case of Kilgarlin v. Martin, 252 F.Supp.

404 (S.D. Tex. 1366), rev'd in pazt sub non.

Kilgarlin v. Hill, 386 U.S. 120 (1967), was

the supposed state policy of providing single-

member districts for counties upon their at-

taining a population of one million or more.

The state interest fostered by this policy

is unclear, but it apparently has been aban-

doned since the Dallas County multi-member

district contains more than 1.3 million peo-

ple and elects so many legislators that the

candidates for that office are too numerous

14General Martin added that that the

decision to multi-member Dallas County was

_ not mathematical at all, but political

(Martin Dep. 37).

(31)

to be listed on the standard voting machine

(R. 342, 370-371).

It is inescapable on this record that

no state policy was involved in the handling

Of Dallas County (or, apparently, any other

metropolitan district), and the many and

differing explanations offered for their

actions by the members of the redistricting

Board only emphasize this.

Board Member Armstrong believed that

multi-member treatment of urban areas other

than Houston was a non-decision, resulting

from time pressure, schedule conflicts, and

the inability of the Board to get together

and do something different (Armstrong Dep.

17). Board Member Calvert gave his reasons

as being the desires of the people in Dallas,

already discussed, and observed that Dallas

had always been multi-member, so why change

it? (Calvert Dep. 69-70). Board Member

Martin cited the wishes of the people as his

sole reason (Martin Dep. 63). Board Member

‘Mutscher testified that he voted against

both the House and Senate plans prepared by

the Board and signed neitHer (Mutscher Dep.

15). The Appendix to the Jurisdictional

Statement is apparently erroneous in indi-

cating (131C) that he did. And Board Member

Barnes did not know when the decision was

made, but insofar as he decided, did so on

the basis of how he thought the other Board

members would vote (Barnes Dep. 97, 98).

It is thus plain that the Board's choice

of multi-member districts for Dallas and

Bexar Counties and the other metropolitan

areas of Texas, while the residents of Harris

County enjoyed single-member districts, was

not made to foster any state interest, com-

pelling or otherwise. And that choice, be-

Cause of the particular facts in Texas found

(32)

to exist by the Court below, resulted in the

denial of basic First and Fourteenth Amend-

ment rights.

2. THE VARIANCES IN POPULATION AMONG

THE DISTRICTS WERE NOT JUSTIFIED BY ANY

RATIONAL STATE POLICY.

This Court's many reapportionment deci-

sions establish that the Fourteenth Amend-’

ment's requirement of equal protection of

the laws imposes on the states an obligation

to make a good faith effort to assure that

equal numbers of people have equal repre-

sentation in state legislative bodies. Ther:

is some room for slight variances, but if

the apportionment of representation actually

achieved results in more than minimal devia-

tion then the state must show that some in-

portant state interest justified the in-

equality. See, e.g., Abate v. Mundt, 403

U.S. 182 (1971).

The Board's plan here resulted in a 9.9

percent variance between the largest and the

smallest legislative districts, or approx-

imately 7,400 people. Even when a deviation

has been the result of a good faith attempt

to achieve equality, this Court has never

found any deviation presented to it to be

per se minimal and hence to réquire no ex-

planation. Nevertheless, Appellants argue

that no justification is required for this

deviation, and this was the entire content

of their position in the Court below. Here,

however, Appellants go on to argue that

-even if the deviation is not minimal it

is justified on the ground that it was the

necessary consequence of a good faith ef-

fort of the Board to preservé county lines.

This effort, the argument runs, though car-

ried through “at the admitted expense of

* (33)

ater population deviations," resulted in

++-@ reapportionment of the state that

makes Only one division of a small county..."

(Appellants' Brief 8, 6). And the devia-

tion under the Board's plan was not impro-

r since "...what variances there were

{are) ‘well within the limits established

by this Court's prior decisions, and with

only one fully-explained defarture from

the mandate of the state constitution”

(Appellants' Brief 4).

1. Appellants contend that no justifi-

cation is required of the deviation here be-

cause it is within the premissible limits

set forth by this Court in Reynolds vy Sims,

377.U.S. 533 (1964). The Court beYow re-

jected this contention on the ground that

this Court's subsequent decision in

Kirkpatrick v. Preisler, 394 U.S. 526 (1969),

“Bay substantially erode the ‘tolerance’

dictim in Reynolds” (A.Jur.S. 12A). Appel -

lants' position basically is that Kirkpatrick

has no application to Texas legislative dis-

tricts, since that case involved andbis

limited to congressional redistricting.

Appellants are right to attack ‘the

Kirkpatrick rule for if it applies there

is an end of the matter. This Court stated

there that "the State must make a good-faith

effort to achieve precise mathematical egal-

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*

(394 U.S. at 530-531). There js no "math-

ematical equality” under the plan devised

here. It contains a 9.9 percent maximum

deviation, deviation ratio of 1.1 tol,

and an avesate deviation of 1.82 percent,

all by the State's own calculations (Appel-

lants' Brief 11). Appellants did not attempt

(34)

to justify these except by general reference

to the State Constitution's “prohibition"

against cutting county lines, an argument

spurious in several respects as we shall

deomonstrate shortly. Thus if Kirkpatrick

has application, Appellants cannot prevail.

Nor do Appellants fare any better if

Kirkpatrick does not apply. This record

reveals a melding of (1) enormous, multi-

member districts, unequally imposed on

equivalent voters, undisputedly having the

effect of favoring the affluent candidate

and his supporters at the expense of the

less affluent, and (2) unjustified poysie-

tion deviations of almost 10 percent.15

As such, it is like neither Abate nor

Whitcomb v. Chavis, and is different from

any prior case decided by this Court ex-

cept, in some respects, Bullock v. Carter,

supra. But it combines the worst features

of the plans presented in all those cases,

and adds other bad ones. The combined ef-

fect is to render the’ plan here constitu-

tionally infirm even under the principles

of Reynolds v. Sims.

2. Appellants’ claim that the Board

made a good faith effort to achieve popula-

15the Board's plan has other graceless

features as well. For example, the State's

own witness, Representative Paul Silber of

Bexar County, admitted that Senate District

21, which combines the Republican area of

San Antonio with 11 or more Border and

South Texas Counties, was "an outright

political gerrymander" (R. 984).

(35)

tion equality is not borne out by the record.

We have already shown how the Board went at

its task.

It commenced by refusing to act at all

to redistrict the House, proceeding only

when directly ordered to do-so by the Supreme

Court of Texas. With twenty-six days left,

it still dallied until it had to do what Lt.

Governor Barnes called a 10-day job (Barnes

Dep. 149). One of its members testified

that because of the "peculiar situation"

in which the Speaker of the House found him-

self, he did not really participate in its

counsels and it was actually a four-man board

(Calvert Dep.“ 40). The same member approved

the plan under the mistaken impression that

it provided multi-member Senatorial Districts

for Dallas County, and was still not sure

at his deposition whether it did or not

(Calvert Dep. 47-8). Another testified

that so far as he knew, the Board gave the

staff members who drew the plan no instruc-

tions about how to do it (Armstrong Dep. 20).

And finally, one member testified that the

House and Senate plans were both put together

by Lt. Governor Barnes and two of his assis-

tants, a Mr. Spellings and an aide of his

(Mutscher Dep. 24).

Mr. Spellings amply confirmed this and,

indeed, narrowed the matter even further.

He testified that he drew the plans (Spellings

Dep. 15-16) at Barnes' direction and with

only one instruction from Barnes, which was

not to use single-member districts except in

Harris County (Spellings Dep. 9-10, 34-35).

He talked about the House plan with only one

Other Board member, but did not ask his opin-

ion because he knew it already (id. at 35), ana

in fact disregarded it in preparing the plan

.{id. at 19). Most of the Senate plan was

(36)

his (id. at 56-57); he drew a plan he thought

the Board would accept, but not under its

dictation (id. at 62). He did the drawing

and made the basic decisions (id. at 159),

and the Board knew this (id. at 161). He

drew the entire House plan between a Tuesday

afternoon at 5:00 p.m. and early in the after-

noon on the succeeding Thursday, starting

from scratch (id. at 29). The plan which he

drew was adopted the next day by the Board

(id. at 17-18). And he did all this with

no prior redistricting experience, except

in the last 24 hours of the prior legisla-

tive session (id. at 115). All this is un-

disputed, and makes clear that the final

result was not the Legislature's plan, or

even the Board's plan--it was Mr. Spellings'

plan.

Moreover, the record contains a tantal-

izing clue that this Court's expressed fear

in Kirkpatrick, that "...to consider a cer-

tain range of variances de minimis would en-

courage legislators to strive for that range

rather than for equality..." (394 U.S. at

531), has here been realized. Attorney Gen-

eral Martin testified that his instructions

and advice were, in the Kirkpatrick vein, to.

keep percentage deviations to zero if poss-

ible (Martin Dep. 35). Board Member Calvert,

however, a non-lawyer who looked to Martin

for legal advice (Calvert Dep. 17-18), some-

how got a different message: that population

variations between districts were not to

exceed 5 percent off the average (id. at

25). So viewed, the resulting maximum devia-

tion of 9.9 percent between districts in the

Board plan, as computed by the State (Appel-

lants' Brief 11), was either a success al-

though a very near run thing or a stunning

coincidence.

i a ee a eee a ee

(37)

3. The basic justification advanced

for the population disparities is that the

Board sought to maintain county lines "...at

the admitted expense of greater disparities

in population deviation..." (Appellants'

Brief 8).16 The general argument is a rather

standard after-the-fact treatment of the vari-

ances. But its "small county" phase is

imaginative and ingenious.

Appellants assert that the Board "...a-

dopted a plan with the lo

, wi ces there

were within the limits established by this

and with only one,

from the mandate of

(id. at 3-4). ana

"..-attempted to

l6mr. Spellings, who as discussed above

devised and drew the plan, did not recall

“preserving county lines" when asked about

is guidelines, though he named others

(Spellings Dep. 76). In fairness, Mr.

Spellings must: have paid some attention

tO county lines, at least as a. convenience,

since he did preserve a great number of

(38)

Considering that the plan cuts the boung-

aries of 19 counties, and literally explodes

four of them into three pieces each,17 these

statements in Apellants' Brief are confusing,

We believe that they indicate that Appellants

have constructed an argument of some clever-

ness by reasoning backward in this manner

from the facts. Red River County is the smal).

est of the counties which is divided, and is

also the only county divided the division of

which can rationally be justified. On these

facts, Appellants belatedly conclude that it

was the Board's rational policy not to divide

‘small counties, and that its plan succeeds

brilliantly in this regard because only one

small county is divided and that unavoidably.

And Appellants now discern that what the Texas

Constitution, Art. III, §26, as explicated by

the Texas Supreme Court in Smith v. Craddick,

supra, forbids--or especially forbids--is

dividing small (or perhaps rural, Appellants'

Brief 6) counties. Thus, by construing the

Texas Constitution to forbid the division of

small counties, rather than counties generally,

Appellants are able to tailor their argument

to fit the record, to claim that the "one

departure” from the mandate of the state con-

stitution is fully justified, and to make the

laudatory statements quoted regarding the

Board plan.

The argument fails for various reasons.

In the first place, neither Article III, §26,

nor the Texas Court's opinion in Smith v.

Craddick lays any special emphasis on small

Or rural counties. It was "...the wholesale

cutting of county lines...." and the fact that

"...fa]lthough Grayson County has a popula-

17opinion below, A.Jur.S. 15A, 16A;