Appellants Reply Brief — White v. Regester

In Tus

Supreme Court of the Hnited States

OoctosEr Term, 1972

No. 72-147

Bos BuuLook, ET AL.,

Appellants,

v.

Diana REGESTER, ET AL.,

Appellees.

On AppeaL From Tue Unirep Srates Distrior Court

For Tue Western District Or Texas

REPLY BRIEF FOR APPELLANTS

Jonn L. Hix

Attorney General of Texas

Larry YorK

Executive Assistant

Attorney General

Lewis A. JonEs

Assistant Attorney General

Leon JAWORSKI i

Auton F. Curry

Special Assistant Attorneys

General

P.O. Box 12548, Capitol Station

Austin, Texas 78711

meee ea er

FIDELITY PRINTING COMPANY, INC., HOUSTON

Te Whee een

INDEX

I. Jurisdiction of this Appeal is proper under 28 U.S.C.

DR kitinindicn nica aeene Aeneas

' A. Jurisdiction of the Appeal from the injunction

below ordering single-member districts for

Bexar County and Dallas County. .................0

B. -Jurisdiction of the Appeal from the declaratory

judgment that the districting plan for the House

of Representatives for the entire State of Texas

violates the standard of one man, one vote. ........

II. The court below erred in basing its decision on the

procedures by which the Legislative Redistricting

Board adopted the districting plan, rather than by

fairly evaluating the plan on its own merits. ............

III. The State has met its burden of justifying the popu-

lation deviations among the legislative districts. ........

IV. The combination of single-member districts in Harris

County and multi-member districts in other urban

areas does not deny equal protection of the law. ........

A. The court below failed to find the different treat-

ment of Harris County to be unconstitutional.

B. The proper test of different treatment of differ-

ent metropolitan areas is whether there is a

rational basis, not whether there is a compelling

state interest, in the use of both single and multi-

ONE IOI xis cesictesiccsshsinsinceensns esi nersirecreseosssess

C. The State of Texas has demonstrated that the use

of single member districts in Harris County and

multi-member districts in other metropolitan

counties was not irrational. ..0............cccsseeeeeeeeee

1. The former 15 member ‘limitation in size of

multi-member districts in Texas was not a

“policy” binding upon the State. ..........0.0......

_ 2. The differing treatment of Harris County and

other metropolitan areas in Texas can be

TORE, seiiaiiciriebnienenne meinen

V. The record does not support the findings of the court

below and the assertions of Appellees here that

Negroes and Mexican Americans are effectively ex-

cluded from the political process due to the use of

multi-member districts in Dallas and Bexar County.

A. Analysis of the record in relation to the findings

concerning Dallas County. ............cccccsccssessesseseeeee

B. Analysis of the record in relation to the findings

concerning Bexar County. .0............ccccsecscscessceseeeeeee

PaGE

10

35

36

41

48

ii

TABLE OF CITATIONS

Board of Regents v. New Left Education Project, 404 U.S.

541 (1972)

Bolton v. Doe, 402 U.S. 936 (1971)

Bullock v. Carter, 405 U.S. 134 (1972)

Bush v. Martin, 251 F.Supp. 484 (8.D. Tex. 1966)

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

Fletcher v. Peck, 10 U.S. (6 Cranch) 87 (1810)

ait ne & Avocado Growers v. Jacobsen, 362 U.S. 73

1

Soca Committee to End the War, 399 U.S. 383

Holt v. City of Richmond, 459 F.2d 1093 (4th Cir. 1972),

cert. dented, 92 S.Ct. 2510

Hutcherson v. Lehtin, 399 U.S. 522 (1970)

James v. Strange, 407 U.S. 128, ......, 92 S.Ct. 2027, 32 L.Ed.

2d 600 (1972) 18

Lucas v. Colorado General Assembly, 377 U.S. 713 (1964) 41

Mauzy v. Legislative Redistricting Board, 471 8.W.2d 570

(Tex. 1971) 15, 21

McCann v. Babbitz, 400 U.S. 1 (1970) 8

Mitchell v. Donovan, 398 U.S. 427 (1970) 8

Moody v. Flowers, 387 U.S. 97 (1967) 4, 8,9

Perez v. Ledesma, 401 U.S. 82 (1971) 12

Roe v. Wade, 41 U.8S.L.W. 4213 (January 22, 1973) 11, 12

Ruckelshaus v. Chavis, 403 U.S. 914 (1971) 3

Skolnick v. Board of Commissioners, 389 U.S. 26 (1967),

on remand, 435 F.2d 361 (7th Cir. 1970) 3, 6, 7,8

Skolnick v. Kerner, 260 F.Supp. 318 (N.D. Ill. 1966), appeal

dismissed, 387 U.S. 91 (1966)

Smith v. Craddick, 471 S.W.2d 375 (Tex.Sup. 1971) 21, 24-25, 26-27

Smith v. Garza, 401 U.S. 1006 (1971) 8

Whitcomb v. Chavis, 403 U.S. 124, 138 n.19 (1971)

Whitcomb v. Chavis, 403 U.S. 914 (1971)

Trex. Const. art. ITI, § 26

Tex. Constr. art. III, § 28

28 U.S.C. § 1253

28 U.S.C. § 2281

Tex Rev. Crv. Star. ANN. art. 1959 —3 (Supp. 1972) .......

In THE

Supreme Court of the Hnited States

Ocroser Term, 1972

No. 72-147

Bos BuLLocK, ET AL.,

Appellants,

v.

_ Diana REGESTER, ET AL.,

Appellees.

On AppzaL From Tue Untrep States Distaicr Court

For Tue WeEsTERN District Or Texas

REPLY BRIEF FOR APPELLANTS

REPLY BRIEF FOR APPELLANTS

It is virtually impossible for Appellants to respond to

each and every argument advanced in the six briefs (includ-

ing one amicus) filed in support of the judgment below.

That most contain factual assertions not supported by the

record is obvious from a spot check of their references

thereto,! and Appellants will not burden this Court with a

1 For example, the brief filed on behalf of Dr. George Willeford

et al asserts, at p. 37 n.16, that Robert Spellings, who partici-

pated in drawing the House plan, “did not recall ‘preserving

county lines’ when asked about his guidelines, though he named

others (Spellings Dep. 76).” But the referenced testimony (8

App. 2294) clearly reveals that Spellings was being asked about

the “guidelines you were instructed to follow in drafting of the

map, — we are talking about the senatorial map?” There is no

provision of the Texas Constitution similar to Article III, Sec-

tion 26, which requires the preservation of county lines in

senatorial districting. According to the Amicus Brief, Mutscher

is said to have “confessed himself ‘baffled’ at the seeming irra-

tionality of the plan (id., [Mutscher Dep.] 29).” Amicus Brief

p. 14. An examination of the reference (8 App. 2416) clearly

reveals that the witness was referring to the Senate plan (see

id. at 2420), and that his only objections to the House plan was

that he felt it was against the wishes of the House members

and unnecessarily paired incumbents against each other (id. at

2429-30). These are common errors found in Appellees’ record

references: attributing testimony as to the Senate plan to the

House plan, the only plan in question on this appeal.

For the proposition that the Board “members troubled them-

selves little to learn each others’ views” the Amicus points to

p. 18 of Martin’s Deposition. At that page (6 App. 1579)

Martin testified :

“T consulted with other members of the Board, the other

four of them, informally. I believe all of them visited my

office on one occasion or the othe’, and I visited in the office

of, I believe, all of the other members with the exception of

the Speaker, and we had various telephone conversations, and

the great bulk of the work was done by staff members. . . .”

Q “You say, then, as I understand it, that you consulted

with three out of the four other Board members .. .”

A “I consulted with all of them. I limited it to the Speaker.

The Speaker came to see me, I believe, on two occasions. I

did not visit his office. In other words, we exchanged visits

between offices, and if I misled you, I am sorry. I went to

all of them’s offices with the exception of the Speaker’s Office.

I don’t recall going there. I might have, but I don’t recall

it right now.” (emphasis added throughout unless otherwise

indicated).

The Bernal Brief asserts that the Board made no use of the

plan adopted by the legislature and held deficient in Smith v.

Craddick. Bernal Brief p. 6. To the contrary, Mr. Spellings

testified that in drawing the plan, when he got to certain urban

areas and it was necessary to split counties, he relied on the

Legislative Council as to how to do it since they had helped

prepare the prior plan. 8 App. 2249. And Mr. Johnson of the

Legislative Council unequivocally testified that in supplying

suggestions to Spellings, he used portions of the prior plan that

had escaped criticism in Smith v. Craddick. 6 App. 1878. This,

of course, is the practice, frequently indulged in by Appellees,

of attributing to the Board as a whole the action or thought-

processes of a single member or staff member.

3

catalog of these unsupported statements. Instead, the pur-

pose ef this brief is to identify and reply to the primary

legal arguinents advanced by Appellees.?

I.

THIS COURT HAS JURISDICTION OF THIS

APPEAL UNDER 28 U.S.C. § 1253; THE THREE-JUDGE

COURT BELOW WAS PROPERLY CONVENED;

AND THE ORDER REDISTRICTING BEXAR

AND DALLAS COUNTIES HAS

A STATEWIDE IMPACT

Appellees contend that this Court lacks jurisdiction under

28 U.S.C. § 1253,' citing primarily Skolnick v. Board of

Commissioners, 389 U.S. 26 (1967); Board of Regents v.

New Left Education Project, 404 U.S. 541 (1972); Gunn v.

University Committee to End the War, 399 U.S. 383 (1970) ;

Ruckelshaus v. Chavis, 403 U.S. 914 (1971); and Whitcomb

v. Chavis, 403 U.S. 124, 138, n.19 (1971). There are actually

two separate jurisdictional questions: (1) Does this Court

have jurisdiction to consider the redistricting of Bexar

County and Dallas County into single-member districts?

and (2) Does this Court have jurisdiction to consider the

judgment of the Court below that the redistricting plan for

the entire State for the Texas House of Representatives

violates the Equal Protection Clause of the Fourteenth

Amendment? These two questions will be considered separ-

ately.

2 For convenience, when this brief refers to certain arguments

having been made by “the Appellees”, Appellant merely means

that one or more, but not necessarily all, of the Appellees have

made the same. Where pertinent, the particular party making

the assertion is identified by reference to that party’s brief.

8 Appellants did not argue the jurisdictional issue in their ori-

ginal brief, as this Court noted probable jurisdiction on October

10, 1972, in spite of the fact that the appellees had urged the

Court to dismiss for lack of jurisdiction.

4 Willeford Brief at 40-45; Regester Brief at .........

4

A. This Court Has Jurisdiction to Consider the Appeal

from the Injunction Ordering Single-Member Districts for

Bexar. County and Dallas County.

1. Appellees incorrectly state the law.

Appellees’ arguments, simply stated, are that the order

of the court below redistricting Bexar County and Dallas

County into single-member districts was of only “local” as

opposed to “statewide” impact, and that, even though the

three-judge court was properly convened, this Court lacks

jurisdiction if the order of the three-judge court has less

than “statewide” impact.® In this regard appellees rely pri-

marily upon Board of Regents v. New Left Education Proj-

ect, supra.® There the Court ruled that a three-judge court

had been improperly convened, because the challenged

rules of the Board of Regents applied only on the campuses

of three of the twenty-three four-year State colleges and

universities of the State of Texas, and were therefore

“local” rather than “statewide” regulations. 404 U.S. at

543-44, The Court relied upon Moody v. Flowers, 387 U.S.

97 (1967), where it was held that a three-judge court was

improperly convened to consider the districting scheme for

electing members of the Houston, Alabama, County Board

of Revenue and Control. In Moody v. Flowers, this Court

stated the rule defining its jurisdiction under 28 U.S.C.

§ 1253 as follows:

“This Court has jurisdiction of these direct appeals

under 28 U.S.C. § 1253 only if the respective actions

were ‘required ... to be heard and determined by a

district court of three judges.’ Section 2281 of 28 U.S.C.

requires that a three-judge court be convened in any

case in which a preliminary or permanent injunction

5 Willeford Brief at 42-43.

6 Ibid; Regester Brief at ............

5

is sought to restrain ‘the enforcement, operation or

execution of any State statute by restraining the action

of any officer of such State in the enforcement or ex-

ecution of such statute... .’ The purpose of § 2281 is

‘to prevent a single federal judge from being able to

paralyze totally the operation of an entire regulatory

scheme ... by issuance of a broad injunctive order’

(Kennedy v. Mendoza-Martinez, 372 U.S. 144, 154, 9

L.Ed.2d 644, 652, 83 S.Ct.554), and to provide ‘pro-

cedural protection against an improvident statewide

doom by a federal court of a state’s legislative policy.’

Phillips v. United States, 312 U.S. 246, 251, 85 L.Ed.2d

800, 805, 61 S.Ct. 480. In order for § 2281 to come into

play the plaintiffs must seek to enjoin state statutes ‘by

whatever method they may be adopted, to which a

;

¥

x

Z

x

re

s

State gives her sanction. .. .” American Federation of

Labor v. Watson, 327 U.S. 582, 592-593, 90 L.Ed. 873,

880, 66 S.Ct. 761. ‘

“The Court has consistently construed the section

as authorizing a three-judge court not merely because

a state statute is involved but only when a state statute

of general and statewide application is sought to be

enjoined.” 387 U.S. at 101.

The Republican Appellees contend that, under the ration-

ale of Moody v. Flowers, even though they and the other

plaintiffs challenged the entire State redistricting scheme

embodied in a statute of general and statewide application,’

the order of a three-judge court determines jurisdiction in

this Court, and that an order that has “local” rather than

7 Plaintiff Curtis Graves moved to sever his case on grounds that

he had challenged only senatorial districting of Harris County,

and asserted that the convening of a three-judge court was

improper. The court denied Graves’ motion, saying: “we con-

elude that the plaintiff is challenging a state statute of general

application throughout the state and is then seeking to remedy

by injunction one county’s apportionment scheme.” (A.Jur.S.

at 7A) (emphasis is the court’s).

‘?

6

“statewide” impact will not sustain this Court’s jurisdic-

tion.®

Appellees confuse the requirements of two separate and

distinct jurisdictional statutes. The propriety of convening

a three-judge court is determined by 28 U.S. § 2281;° the

jurisdiction of the Supreme Court of a direct appeal is

determined by 28 U.S.C. § 1253,!° which allows a direct

appeal “from an order granting or denying . . . an injunc-

tion” in a case that must be heard by a three-judge court.

This Court has jurisdiction if (1) a three-judge court was

properly convened and (2) the appealing party was either

enjoined or was denied injunctive relief.

Appellees erroneously argue that the State may not

appeal from an injunction whose impact is local, without

regard to the issue of whether a three-judge court was

properly convened. Appellees’ error is demonstrated by

their misplaced reliance on Skolnick v. Board of Commis-

stoners, 389 U.S. 26 (1967), which Appellee Willeford dis-

cusses as follows:

“That this Court has no jurisdiction when the order

of the District Court has only local impact was re-

8 Willeford Brief at 42-43.

928 U.S.C. § 2281 states that: “An interlocutory or permanent

injunction restraining the enforcement, operation or execution

of any State statute by restraining the action of any officer of

such State in the enforcement or execution of such statute or

of an order made by an administrative board or commission

acting under State statutes, shall not be granted by any district

court or judge thereof upon the ground of the unconstitution-

ality of such statute unless the application therefor is heard and

determined by a district court of three judges under section

2284 of this title.”

10 28 U.S.C. § 1253 states that: “Except as otherwise provided by

law, any party may appeal to the Supreme Court from an order

granting or denying, after notice and hearing, an interlocutory

or permanent injunction in any civil action, suit or proceeding

required by any Act of Congress to be heard and determined

by a district court of three judges.”

(

affirmed in Skolnick v. Board of Commissioners, 389

U.S. 26 (1967). In that case an appeal was taken from

an order by a three-judge court denying an injunction

of that portion of a statewide judicial apportionment

that affected Cook County, Illinois. See Skolnmick v.

Kerner, 260 F.Supp. 318 (N.D. Ill. 1966). The claim

in the lower court was that the scheme debased the

votes of racial and religious minorities in Cook County.

The three-judge court denied relief; on appeal this

Court vacated and remanded the order of the lower

court, citing Moody v. Flowers.”™

In fact, there were two completely separate Skolnick

cases. Skolnick v. Kerner, 260 F.Supp. 318 (N.D. Ill. 1966),

did involve a challenge to the Cook County, Illinois por-

tion of a state-wide judicial districting scheme. This Court

did not, as in Moody v. Flowers, vacate the order of the

district court and remand for entry of a fresh decree to

allow appeal to the court of appeals, but instead, without

referring to Moody v. Flowers, merely stated in a per

curiam opinion that “[t]he motion to dismiss is granted

and the appeal is dismissed for want of a substantial

federal question.” Skolnick v. Kerner, 387 U.S. 91 (1967).

The second Skolnick case, as revealed in the opinion of

the Seventh Circuit following the appeal of that second

case to this Court, involved a separate and distinct chal-

lenge to the districting of Cook County, Illinois for elec-

tion of the members of the Cook County Board of Com-

missioners.!2 This second Skolnick case had been brought

before a three-judge court that was improperly convened,

11 Willeford Brief at 43.

12'The district court opinion in the second Skolnick case was

apparently. unreported as there is no citation to the district

court opinion in either this Court’s opinion, Skolnick v. Board

of Commissioners, 389 U.S. 26 (1967), or in the subsequent

opinion of the Court of Appeals, Skolnick v. Board of Com-

missioners, 435 F.2d 361 (7th Cir. 1970).

8

as it involved, just as did Moody v. Flowers, supra, a

challenge to the districting of a local governing board.

It was this second, local Skolnick case in which the Supreme

Court held that it had no jurisdiction of the appeal:

“The judgment of the District Court is vacated and

the cause is remanded in order that the District Court

may enter a fresh decree from which appellant may,

if he wishes, perfect a timely appeal to the Court of

Appeals. Moody v. Flowers, 387 U.S. 97, 18 L.Ed. 2d

643, 87 S.Ct. 1544.” Skolnick v. Board of Commission-

ers, 389 U.S. 26 (1967) (per curiam).

The remainder of the cases cited by the Appellees as

supporting a lack of jurisdiction may be divided into two

categories: (1) those holding that a three-judge court was

improperly convened because the pleadings failed to chal-

lenge a statute or regulation of: statewide application”

and (2) those holding that this Court has no jurisdiction

where the three-judge court did not enter an order either

enjoining or denying injunctive relief to the appellant.**

The three-judge court here was properly convened (Ap-

pellees do not, and cannot, argue otherwise ; their challenge

was of a statute of statewide application, redistricting the

entire State of Texas, and was additionally an expression

of State policy), and the three-judge court did enter an in-

junction against Appellants. This Court therefore has jur-

isdiction with regard to the ruling concerning Dallas and

Bexar Counties under 28 U.S.C. § 1253.

13 Board of Regents v. New Left Education Project, 404 U.S. 541

(1972) ; Hutcherson v. Lehtin, 399 U.S. 522 (1970).

14 Whitcomb v. Chavis, 403 U.S. 914 (1971) ; Bolton v. Doe, 402

U.S. 936 (1971); Smith v. Garza, 401 U.S. 1006 (1971) ; Me-

Cann v. Babbitz, 400 U.S. 1 (1970) ; Gunn v. University Com-

mittee To End the War, 399 U.S. 383 (1970) ; Dial y. Fontaine,

399 U.S. 521 (1970); and Mitchell v. Donovan, 398 U.S. 427

(1970). ¥

9

2. The injunction ordering redistricting of Dallas and

Bexar Counties has a “statewide impact.”

Though Appellees are in error in contending that the

propriety of convening a three-judge court depends on the

scope of the relief granted rather than the scope of the

relief sought, this Court would have jurisdiction even if

Appellees were correct: the injunction ordering the redis-

tricting of Bexar and Dallas Counties has a “statewide”

impact. The officials who would have been elected in Bexar

and Dallas Counties under the challenged districting plan

would have been State legislators and would have com-

prised approximately one-fifth of the total membership of

the State House of Representatives.

The officials elected under the challenged districting

scheme in Moody v. Flowers, supra, were clearly merely

county officials whose powers were limited to the area of

Houston County, Alabama.’* Moody v. Flowers is therefore

distinguishable from the instant case, which concerns the

validity of a Statewide districting enactment of the Legis-

lative Redistricting Board (hereinafter the “Board’”), a

quasi-legislative entity established by the Constitution of

the State of Texas, Article III, Section 28 (A. Jur. S. 175E-

176E), and authorized to redistrict the entire State of

Texas upon failure of the State Legislature to enact a valid

redistricting staute. The actions of the court below, in strik-

ing down the enactment of the Board, radically changed

the manner of electing Representatives to the House of

Representatives of the Texas Legislature from Dallas and

Bexar Counties, which contain, respectively, populations of

15 “T]he constitutional attack was directed to a state statute deal-

ing with matters of local concern —the apportionment and

districting for one county’s governing board. The statute is not

a statute of statewide application, but relates solely to the affairs

“ me in the State.” Moody v. Flowers, 387 U.S. 97, 102

10

1,327,000 people and 830,000 people, electing eighteen and

eleven representatives respectively. It cannot be questioned

that legislators elected from Bexar and Dallas Counties

are State officials, not county officials as in Moody v.

Flowers, and that their powers extend to the entire State

of Texas. Any change in the manner by which these State

officials are elected therefore must, of necessity, have a

“statewide impact.” Dallas and Bexar Counties together

elect twenty-nine out of the 150 members of the Texas House

of Representatives. Changing the manner of election of

these representatives therefore must unavoidably have a

significant impact on the composition of the lower house of

the Texas Legislature, and undoubtedly has an effect on the

entire State.'*

B. This Court has Jurisdiction of the Declaratory

Portions of the Judgment of the Court Below Under the

Pendent Jurisdiction of This Court.

It need not be decided whether, under current case law,

this Court would have jurisdiction of this appeal had

the court below granted Appellees no injunctive relief.

See, e.g., Whitcomb v. Chavis, 403 U.S. 914 (1971). The

court below having granted injunctive relief, and this

Court having jurisdiction over the portion of the case

relating to the ordered single-member districts for Bexar

County and Dallas County, this Court should also consider

the declaratory portion of the order of the court below

under the pendent jurisdiction of this Court, because the

16 If Appellees’ argument were carried to its logical conclusion, a

three-judge court would never be required to pass on the con-

stitutionality of a state redistricting plan as long as the plan

contained at least some ideal districts so that any court-imposed

redistricting would extend to less than the entire state and,

according to Appellees’ point of view, would have less than

statewide impact.

11

findings of the court below that the State had failed to

follow a rational plan in redistricting involved both the

multi-member district /single-member district issue and the

issue of mathematical equality of the populations of the

various districts.

It is clear from a reading of the opinion of the court

below and from a reading of Appellees’ briefs that the

decision below was predicated upon a dislike by the court

for the procedures of the Board. The court and the Ap-

pellees have decided that the actions of the Board do not

constitute a rational state policy because of (1) the

frequency of Board meetings, (2) the directions given

by the Board to its staff, (3) the extent to which staff

members made decisions that were ultimately approved

by the Board, and (4) the method by which the recom-

mendations of the staff members were adopted and enacted

into law by the Board. See Willeford Brief at 4-5, 16-17,

28-31, 34, 36; Bernal Brief at 5-8, 15-17; Regester Brief

at 2-3, 4-6. As it was these inquiries into the Board’s pro-

cedures that were used to determine a lack of a rational

State policy, as a basis for both the injunctive and the

declaratory relief granted, this Court should decide the

entire case at one time, avoiding piecemeal appeals and

unnecessary expense to both the appellees and the State

of Texas.

This Court recently noted the propriety of exercising

its pendent jurisdiction to hear an entire matter under

circumstances where a portion of the matter is properly

before this Court under 28 U.S.C. § 1253. In Roe v. Wade,

41 U.S.L.W. 4213, 4216 (January 22, 1973), Mr. Justice

Blackmun, in delivering the opinion of the Court, observed

that :

“Our decisions in Mitchell v. Donovan, 398 U.S. 427

(1970), and Gunn v. University Committee, 399 U.S.

12

383 (1970) are to the effect that §1253 does not

authorize an appeal to this Court from the grant or

denial of declaratory relief alone. We conclude, never-

theless, that those decisions do not foreclose our review

of both the injunctive and declaratory aspects of a

case of this kind when it is properly here, as this

one is, on appeal under § 1253 from specific denial

of injunctive relief, and the arguments as to both

aspects are necessarily identical. See Carter v. Jury

Commission, 396 U.S. 320 (1970); Florida Lime and

Avocado Growers, Inc. v. Jacobson, 362 U.S. 73, 80-81

(1960). It would be destructive of time and energy for

all concerned were we to rule otherwise.”?”

It is clear from the opinion of the court below that the

arguments as to both the use of multi-member districts

and the failure to achieve mathematical equality among

legislative districts are essentially, the same, i.e., that the

State failed to act in a rational manner, and more par-

ticularly, that the Board failed to act pursuant to a rational

state policy and that its deliberations were not such as to

justify judicial abstinence. An examination of the opinion

of the court below makes clear that it commingled the

multi-member district issue with the population equality

issue.!®

17 Roe v. Wade involved the plaintiffs’ appeal from denial of

injunctive relief and the defendant’s attempted appeal from

the grant of declaratory relief. Here it is the same party

aggrieved by both the declaratory and injunctive aspects of the

three-judge court’s order. Here, unlike in Perez v. Ledesma, 401

U.S. 82 (1971), the issue is whether this Court has jurisdiction

to determine all challenges directed at a single statewide statute

where it clearly has jurisdiction to review those challenges

resulting in injunctive relief. As this Court held in Florida

Lime & Avocado Growers, Inc. v. Jacobsen, 362 U.S. 73, 80

(1960), “in an injunction action challenging a state statute on

substantial federal constitutional grounds, a three-judge court is

required to be convened and has — just as we have on direct

appeal from its action — jurisdiction over all claims raised

against the statute.” (emphasis this Court’s).

18 A. Jur. 8. at 19A-21A.

13

Indeed, it appears that, central to the decision of the

court below, and emphasized in the briefs of all of the

appellees here, is the premise that the Legislative Redis-

tricting Board (1) is not the legislature (and that the

redistricting plan is not entitled to the same considera-

tion by the Court as it would be entitled to had it been

drawn by the legislature),’® and (2) acted in an arbitrary

and irresponsible manner, so that the redistricting plan

established by the Board is not entitled to consideration

by this Court as a rational state policy.?° In the interest

of fairness to the parties and of judicial economy, this

Court should consider both the order of the court redis-

tricting Bexar and Dallas Counties into single-member

districts and the declaratory judgment of the court that

the entire plan for the State of Texas is unconstitutional.

To do otherwise will require the litigants to litigate the

same issue, 1.¢., the rationality of the actions of the Legis-

lative Redistricting Board, in both this Court and in either

the United States Court of Appeals for the Fifth Circuit,

in the event that the declaratory aspects of this appeal are

dismissed and the Court vacates and remands the same to

the district court for entry of a fresh decree, as is the

usual practice, or in a subsequent appeal to this Court after

the entry of an injunction by the court below, should the

Legislature not act or should any plan adopted by it not

satisfy the three judges of that court.

19 A. Jur. S. at 19A-20A.

20 A. Jur. S. at 14A, 19A-21A; Willeford Brief at 4-5, 16-17, 28-31,

34-36; Regester Brief at 2-4, 4-6; Bernal Brief at 5-8, 14-17;

Amicus Brief at 9-14.

14

II.

THE COURT BELOW IMPROPERLY BASED ITS

DECISION ON THE PROCEDURES BY WHICH

THE LEGISLATIVE REDISTRICTING BOARD

ADOPTED THE DISTRICTING PLAN, RATHER THAN

BY FAIRLY EVALUATING THE PLAN ON

ITS OWN MERITS.

It is clear from a reading of the opinion of the court

below that it proceeded under a presumption that the

redistricting plan was invalid, or at least very suspect,

solely because of the procedures that the court found to

have been employed by the Legislative Redistricting Board

in adopting the plan. (A.Jur.S. 14A, 19A-21A, 31A) The

opinion below was only secondarily based upon a considera-

tion of the effect of the plan. (A.Jur.S. 42A) This concern

with procedure rather than substance was involved both

in the court’s ruling on the single-member/multi-member

district issue and in its ruling on the one man-one vote

equal protection issue. Bound up with the court’s concern

with the procedures of the Board was its apparent opinion

that the Board’s redistricting plan was not entitled to the

same presumption of validity that would attach to a re-

districting statute enacted by the Legislature, and the

court below candidly stated its views in this regard. (A.

Jur.S. 19A-20A)

The court fails to explain why it feels that the official

acts of the Board, composed of five of Texas’ highest

elected officials, are not to be accorded the same considera-

tion as would be the official acts of the State Legislature.

Indeed, the court cites no authority at all in support of its

bizarre position. Appellees supply none. Further, the court

below held that the plan is not presumptively valid, be-

cause the Board initially declined to redistrict the Texas

House of Representatives (the Board believed that it

‘ 15

lacked jurisdiction to do so, as the Legislature had enacted

a redistricting statute for the lower house), saying:

“First, whatever ‘tolerance’ might conceivably at-

tach to a State’s explanation of deviations from a

population ideal cannot reasonably or appropriately

attach to the actions of a redistricting board which

acted on the House of Representatives’ plan only pur-

suant to a mandamus, Mauzy v. Redistricting Board,

supra, and which proceeded to draw its conclusions in

the manner just sketched.” (A.Jur.S. at 21A)

Finally, the court summarized its disdain for the proce-

dures followed by the Board, as it concluded:

“. . . We have serious doubts that this board did

the sort of deliberative job contemplated by Reynolds

as worthy of judicial abstinence.” (A.Jur.S. at 21A)

The court below based its characterization of the Board’s

“job” largely upon such minutiae as (1) the number of

meetings of the Board, (2) the number of public hearings

held by the Board, (3) the amount of responsibility dele-

gated to the Board staff, (4) the extent to which staff

recommendations were adopted by the Board, (5) a lack

of “legislative guidance”, (6) a lack of debate of the single-

member/multi-member district issue, (7) the number of

members of the Board who signed the plan,” and (8) an

21 The court below and the Appellees in their briefs erroneously

leave the impression that the House plan was signed by only

three members of the Board. While it is true that only Martin,

Calvert, and Barnes signed both the House and Senate plans,

Armstrong signed the House plan along with the other three

(6 App. 1851-52). In any event, even if three instead of four

members had signed the House plan, that was all that was

required under Article III, Section 28 of the Texas Constitution,

and the plan is not subject to criticism for that reason any more

than would an Act of Congress because it had been passed by

only a bare majority.

16

alleged lack of standards by which the legislative district

lines were drawn. (A.Jur.S. 14A, 20A)

The court below even suggests that the Board erred in

relying on testimony and communications from Harris.

County indicating a preference for single-member districts,

~ saying:

“(i]t appears to this Court that if a State elects to

use the ‘wishes of the people’ to treat metropolitan

areas differently and unequally, then it is under some

obligation to do a more thorough job of investigating

the real ‘wishes of the people’ than was done by the

Redistricting Board.” (A.Jur.S. at 31A)

In short, as was pointed out in Judge Wood’s dissent

(A.Jur.S. at 102A-103A), the court strayed far into a con-

sideration of the mechanics by which the plan was pro-

duced, rather than concerning itself only with the plan,

its effects and the intentions of those who drew and adopted

ic

22 While the record in this case illustrates the difficulty of divining

the mental processes of a legislative body, its members and staff,

it is clear that all hands involved here, whatever their disagree-

ments as to the means, aimed for and intended one end: a fair

plan with precise population equality. Martin instructed the staff

to hold the “percent of deviation to zero, if possible.” (6 App.

1596). Mutcher thought that “evenness in numbers of people

represented” was “the number one feature.” (8 App. 2403).

Barnes instructed staff member Spellings to get “the most con-

stitutional map that we could.” (8 App. 2229). Staff member

Johnson testified that “a prime consideration was population,

or the consideration to try to hit it as closely as possible... .”

(6 App. 1878). One of the Appellees suggests that a brief com-

ment made by Mr. Calvert during his deposition indicates that

the Board was seeking something less than perfection. Willeford

Brief 36. After Mr. Calvert testified that in his consideration

of a redistricting plan he attempted “to make these districts as

nearly equal as you could in regards to population” and that

he was “guided, then, with simply making them as near equal

as you could by the facts supplied by the people that had the

information,” (7 App. 1977), he did state that when the final

17

The emphasis of the court below on the procedures of

the Board raises grave and fundamental questions con-

cerning the nature of federalism. No federal court would

for a moment consider declaring an Act of Congress in-

valid on the grounds that the House or Senate committee

in which the legislation had been drafted had allowed the

committee staff to do most of the actual drafting of the

bill, nor would an Act of Congress be invalidated on the

grounds that there had not been adequate debate on the

floor of the House or Senate, nor even that the legislation

was unwise. Yet the court below engaged in just those

sorts of inquiries. If it is legitimate for a federal court to

invalidate, on procedural grounds, a redistricting plan duly

enacted by a legislative body, in accordance with the Texas

Constitution, it can be no less legitimate for a federal court

to invalidate other acts of the state legislatures on the

same sorts of procedural grounds.

Yet, it is well established that the federal courts will

not inquire into the method by which facially constitutional

legislation has been enacted. E.g., Fletcher v. Peck, 10 U.S.

(6 Cranch) 87 (1810); Holt v. City of Richmond, 459 F.2d

1093, 1098-99 (4th Cir. 1972), cert. denied, 92 S.Ct. 2510;

c. f. Bush v. Martin, 251 F.Supp. 484, 515 (S.D.Tex. 1966).

This Court has also recently reaffirmed the well-established

plan and deviation figures were presented to him on the day

that the plan was adopted:

“T looked at the figures, and as I recall they weren’t too

far off or they may have varied. What was a 5% — It was

not supposed to be more than 5% off of the average, what-

ever it was. Some districts were a little above it and some

were a little below.” (7 App. 1978)

Placed in its proper context, it is difficult to find in the above

remarks by one Board member, a clue that would lead one to

conclude that either the Board as a whole or Mr. Calvert himself

started out aiming for some de minimus range of deviations.

Having relied upon the Attorney General’s instructing the staff

to come up with a constitutional plan, Mr. Calvert was simply

willing to approve a final product that had some minor devia-

tions.

18

rule that it will not inquire into the wisdom of legislative

enactments, In James v. Strange, 407 U.S. 128, ...... , 92

S.Ct. 2027, ...... 32 L.Ed.2d 600, 606 (1972), this Court held

that:

“We do not inquire whether this statute is wise, or

desirable or ‘whether it is based on assumptions scien-

tifically substantiated.’ Roth v. United States, 354 US.

476 (1957) (Harlan, J., concurring). Misguided laws

may nonetheless be constitutional.”

Perhaps in recognition that it could not legitimately

base its opinion upon a procedural inquiry into the legisla-

tive process, the court below asserted that the redistricting

plan was not legislation, saying “[t]he plan before the

Court was not a product of legislative action, but of the

action of a board of five members, only one of whom is a

member of the legislature.” (A.Jur,S. 19A-20A) The ques-

tion of whether the Legislature Redistricting Board is a

“legislative” body is, of course, not answered by inquiring

whether its members are also members of the state legisla-

ture. The Board is a creature of the Texas Constitution

and is endowed with legislative powers. The only function

of the Board is to redistrict the State of Texas, and this

power devolves upon the Board only upon failure of the

Texas Legislature to enact a re-apportionment statute at

its first regular session following publication of the decen-

nial census. Tex. Const. art. III, § 28 (A.Jur.8. 175E-176E).

The only function of the Board is therefore to carry out

one of the duties of the Texas Legislature When the legis-

lature has failed to act. Functionally, therefore, as the

Board acts in place of the Texas Legislature, it is perform-

ing a “legislative” function and is a “legislative body” by

the terms of the Texas Constitution.

Moreover, the enactments of the Board, when “executed

[by three or more members of the Board] and filed with the

19

[Texas] Secretary of State, shall have the force and effect

of law.” (A.Jur.8. 176E) The enactments of the Board

being “law”, the Board is a law-maker, or “legislative

body”. The court below erred in holding otherwise, and its

inquiries into the wisdom and fairness of the Board’s pro-

cedures were also error.

However, even if the court below were correct in con-

sidering the procedures by which the plan was produced,

its conclusion that the Board did not do a “deliberate job”

“worthy of judicial abstinence” (A.Jur.S. 21A) is not sup-

ported by the record.

First, the court found a lack of coordination (or “tandem

of operations”) and a lack of Board guidance of the staff

in regard to both constitutional principles and “lesser policy

guidelines.” (A.Jur.S. 20A) In fact, the late Attorney Gen-

eral, Crawford Martin, made a point of informing the other

members of the Board and the Board staff of both (1)

constitutional guidelines (including Whitcomb v. Chavis)

and (2) scholarly legal articles dealing with redistricting.

(6 App. 1580-81, 1645, 1660-61, 1696-97) In his dual role as

Board chairman and legal counsel, Martin also instructed

the Board staff to attempt to achieve zero population devia-

tion and to follow the law, as declared by the various

redistricting decisions of this Court. (6 App. 1595-96)

Rather than providing the staff with no guidance, as the

court below found, the Board, through Chairman Martin,

maintained liaison with the staff; Martin personally exam-

ined partially completed maps of district lines and ap-

proved of the crossing of county lines in instances where

this became necessary. (6 App. 1597) Martin also instructed

the staff to watch for the possible dilution of minority

' group voting strength. (6 App. 1645-46) Martin personally

had conversations with staff member Potter, and Martin’s

Assistant Attorneys General had conversations with staff

20

member Spellings and others, to insure that the staff mem-

bers who drew the redistricting plan understood the prin-

ciples announced by this Court in previous apportionment

cases. (6 App. 1700-01)

Robert Johnson, the Executive Director of the Texas Leg-

islative Council, testified that the Attorney General’s staff

advised the Board staff that (1) a “prime consideration”

was to attempt to achieve precise mathematical equality

and (2) crossing of county lines should be kept to a mini-

mum. (6 App. 1878-79)

Staff member Spellings, who drew most of the House

redistricting plan, is a licensed attorney, and testified that

he was familar with the redistricting opinions written by

this Court. (8 App. 2229-30) Spellings, who was employed

as an Executive Assistant to Lt. Governor Barnes, a mem-

ber of the Board, received instructions from Barnes to draw

a redistricting plan and to use single-member districts only

in Harris County. (8 App. 2227-28) Spellings further testi-

fied that Lt. Gov. Barnes wanted him to “draw the most con-

stitutional map that we could.” (8 App. 2229)

Secondly, the court below found that “[t]here is ample

testimony that the Board was given absolutely no legisla-

tive guidance, nor did the Board begin from the legislative

discussions that accompanied the earlier apportionment

plans for Texas.” (A.Jur.S. 20A) The Board, as a quasi-

legislative body empowered by the Texas Constitution to

enact a redistricting statute into law, is burdened by no

legal duty to seek “legislative guidance.” The Board was

clearly not burdened by any duty to defer to the views of

the legislature. The independent nature of the powers of

the Board were recently and authoritatively construed by

the Texas Supreme Court in Mauzy v. Legislatwe Redis-

tricting Board, 471 S.W.2d 570, 575 (Tex. 1971) (A.Jur.S.

193F), where the Court refused to issue a mandamus re-

quiring the Board to use only single-member districts, say-

ing:

“The manner in which the Board apportions the state

into new districts is entirely within the judgment and

discretion of the Board, so long as it acts within the

limitations imposed by the Constitutions of the State

of Texas and of the United States.”

Moreover, while the Board was under no duty to follow

the apportionment plan previously enacted by the Legisla-

ture, neither did the Board completely disregard the Legis-

lature’s efforts nor ignore the information which the Legis-

lature had complied, as the court below seems to have

implied in its opinion. For example, the Board staff made

substantial use of information “compiled by the Texas

Legislative Council for the use of the Legislature, and

even adopted portions of the plan that the Legislature

had earlier enacted. (8 App. 2249-50)?8

The Texas Legislative Council, headed by Executive Di-

rector Robert Johnson, provided staff support for the

Board, and coordinated its efforts with those of Robert

Spellings, who actually drew much of the House plan, and

with Attorney General Martin and his staff. Johnson testi-

fied that three members of the staff of the Legislative Coun-

cil, including Assistant Director John Potter, assisted in

28 The testimony of the Board members is replete with instances

of them having sought out and obtained the proposals and view-

points of numerous legislators. Many legislators appeared

before the Board during its public hearings, many had sub-

mitted plans to the Board, many had communications with

individual Board members, and the Board knew from the prior

plan, struck down in Smith v. Craddick, what the majority of

the Legislature wanted.

22

drafting the House plan. (6 App. 1872, 1875-76) The Legis-

lative Council prepared a number of plans at the request

of the Board, prior to preparation of the final plan. (6 App.

1881) A Board member instructed Johnson and the Legis-

lative Council that single-member districts were to be used

in Harris County. The statistical information that had been

gathered for the use of the Legislature was made available

to the Board and its members. (6 App. 1877-78) Statistical

information that had been gathered by the Senate Redis-

tricting Committee was also made available to the Board

staff. (8 App. 2231)

Finally, the Senate Committee on Congressional, Judi-

cial, and Legislative Districting and its staff provided

assistance to the Board after the close of the regular ses-

sion of the legislature, and provided census information

and other data to the members of the Board. (8 App. 2454,

2458-59)

Thirdly, the court below found that the “committee

[Board] met for hearings only four times” and “[t]he

full board did not even meet to approve the final plan;

it was merely passed around.” (A.Jur.S. at 20A) In fact,

Attorney General Martin testified that the Board met

formally five or six times in public meetings. (6 App. 1569-

70) Although there were no “private meetings” of the

Board (Art. III, Section 28 of the Texas Constitution re-

quires the presence of three members of the Board for

a quorum), there were numerous “meetings,” “conferences,”

or “conversations” between both various combinations of

Board members and between various Board members and

the Board staff. Although not technically “Board meetings,”

these informal conferences occurred with great frequency,

and it was in these conferences that much of the Board

members’ deliberations were carried out. (6 App. 1578-79,

1589, 1602) The Board members also received and con-

23

sidered correspondence, telegrams, proposed redistricting

maps, and presentations by various interested citizens, in

addition to the testimony presented at the four formal

hearings. (6 App 1571-72, 1577, 1586) The Board also

received proposed redistricting maps from twenty-three

State Representatives. (6 App. 1574-76)

Iil.

THE STATE HAS MET ITS BURDEN OF JUSTIFYING

< THE POPULATION DEVIATIONS.

Appellants have argued that in the absence of evidence

of bad faith—-and to the contrary, where the evidence

is clear that the redistricting authority was aiming for

precise mathematical equality — the State should not have

the burden of having to justify each and every depar-

ture from absolute mathematical equality, particularly

where the State has made a conscientious and good faith

effort to comply with (1) its own state constitutional man-

dates as to contiguity and the preservation of county lines

and (2) its legitimate concern for compactness and com-

munity of interest.** The Appellees have taken the position

that it is arithmetic alone — the fact of deviation — which

places the burden on the State to explain each and every

deviation on the basis of a rational state policy consistently

applied. Some of the Appellees devote a considerable por-

tion of their briefs to cataloging the instances where de-

viations are said to be most flagrant and where the state

policy of preserving county lines is said to have been

violated. In most instances, the Appellees do not suggest

*4 The testimony of the Board members and staff members makes

it abundantly clear that in addition to population equality and

the preservation of county lines, compactness, contiguity, and

community of interest were also criteria applied in preparing

the plan. (8 App. 2230, 2404-05).

24

how they would have drawn districts differently. The

examples which they now cite and challenge the State to

explain, apart from Dallas and Bexar Counties, were not

explored during the depositions they took of the members

and staff of the Legislative Redistricting Board or during

trial, and indeed, near the conclusion of the trial, the court

below, noting that there had been no testimony as to the

population deviation, questioned counsel for one of the

Appellees as to whether the latter were attacking the plan

on the basis of population deviation. (4 App. 1182). Said

counsel responded that such a challenge was being made

and that the evidence consisted simply and solely of

arithmetic. (Zd. at 1183). Thus, though Appellees now point

to specific counties and districts which they claim the State

failed to explain, they did not do this during the trial of

the case but instead rested on the fact of deviation alone

as requiring the State to explain each and every instance

thereof.

It is Appellants’ position that no such burden should be

placed on the State where the deviations are as small as

they are in the Board’s plan and where the largest devia-

tions are clearly explained by the Board’s attempt to com-

ply with Article III, Section 26 of the Texas Constitution

(A.Jur.S. 174E) as interpreted in Smith v. Craddick

(A.Jur.S. 178F-185F). Appellees do not suggest that the

Board was ever presented with a plan with smaller devia-

tions and yet in compliance with the State Constitution.

They do challenge Appelants’ assertion that the plan

adopted by the Board contained only one violation of Sec-

tion 26 of the Texas Constitution.

Appellees persist, as did the court below, in misreading

Smith v. Craddick. In that case, the Texas Supreme Court

set out five requirements of Section 26:

25

“1. Section 26 requires that apportionment be by

county and when two or more counties are required

to make up a district of proper population, the dis-

trict lines shall follow county boundaries and the coun-

ties shall be contiguous. A county not entitled to its

own representative must be joined to contiguous coun-

ties so as to achieve a district with the population

total entitled to one representative. .. . |

“4, With the nullification of the dictate relative to

use of the surplus population (less than enough for a

district) of a county which already has one or more

representatives allocated thereto, it becomes permis-

sible to join a portion of that county (in which the

surplus population reside and which is not included in

another district within that county) with contiguous

area of another county to form a district. For example,

if a county has 100,000 population, and if a district of

75,000 population is formed wholly within that county,

the county is given its district, and the area wherein

the 25,000 live may be joined to a contiguous area,

“5. It is still required that a county receive the

member or members to which that county’s own popu,

lation is entitled when the ideal district population is

substantially equalled or is exceeded, No exception to

this requirement is made by what is said in 4. above... .”

(A.Jur.S. 182F-183F)

The court below held, and Appellees now insist, that re-

quirement 4. enumerated by the Texas Supreme Court pro-

hibits the surplus population of a county entitled to one or

more representatives from being split between two dis-

tricts. According to Appellees, the Texas Supreme Court

held that the surplus population must go into one and only

one district. To the contrary, the Texas Supreme Court

did not suggest that requirement 4. which it enunciated had

been violated by the plan before it although said plan

26

(Tex. Rev. Crv, Stat. Ann. art. 195a—3 (Supp. 1972)).

contained at least three instances where a county had been

assigned one or more representatives and where that

county’s surplus population had been divided into two

districts (e.g., Brazoria County, Tarrant County, Bexar

County). Instead, the Texas Supreme Court pointed to the

fact that “[eJighteen counties with less than 74,645 popula-

tion were divided, and portions of each of those counties

were placed in two or more districts” (a violation of re-

quirement 1.) and “[a]lthough Grayson County has a popu-

lation of 83,225, that county was not apportioned a re-

presentative as required by Section 26, but a portion of the

county was placed in District 14 with Fannin County, and

the remaining portion of Grayson was placed in District

60 with counties to the west” (a violation of requirement

5.). The Texas Supreme Court concluded that “Appellees

proved conclusively that this statute fails to do what is

required by the constitution in those respects discussed

in paragraphs 1. and 5. above.” (A.Jur.S. 184F).

Appellants respectfully suggest that the court below and

the Appellees have misread Smith v. Craddick. If the Texas

Supreme Court had felt that Section 26 prohibited splitting

surplus population between two additional districts, it

would certainly have pointed to the instances in the plan

before it where that was done and would have stated that

in that respect the plan attacked violated requirement 4. of

Section 26. And if requirement 4. means what Appellants

say it means, then the plan adopted by the Board fully

complies with Smith v. Craddick with the one exception of

Red River County. There are no instances where a county

entitled to at least one representative was not given its

own district but was split into two districts in violation

of requirement 5., as had been the case of Grayson County

in the prior plan. The only instance where a county not

27

entitled to its own representative was split rather than

joined im toto with contiguous counties (pursuant to re-

quirement 1.) was the case of Red River County. That

departure from state policy was explained. See Appellants’

Brief p. 5 n. 4.

When one keeps in mind the fact that Texas has 254

counties, that the Board came up with a plan that cut

only 19 county lines (as opposed to 33 in the plan attacked

in Smith v. Craddick) and in which only one coynty was

divided in contravention of Section 26 (as opposed to 18

in the plan attacked in Smith v. Craddick), it is difficult

to see how the Board could be accused of bad faith depre-

dations against state policy. Of the 18 districts which the

court below listed as having the largest deviations, 13 were

comprised of two or more entire counties where the Board

was clearly attempting to comply with requirement 1. laid

down by the Texas Supreme Court in Smith v. Craddick..

Of course, in addition to population equality, the desire to

keep small counties intact was not the only criteria used

by the Board. The record is clear that it also considered

compactness, contiguity, and community of interest. Appel-

lees’ approach of looking to particular counties to demon-

strate districts with plus and minus deviations existing

side by side leaves the erroneous implication that isolated

modifications could have been made to cure the disparities.

The truth, however, is that any modifications made would

necessarily affect the remainder of the plan and that, in

redistricting into 150 districts a state as large as Texas,

assuming the propriety of using its 254 counties as building

blocks in the first instance, situations are encountered

where surplus population must be joined to contiguous

counties and where there are limited choices available.

Appellants urge this Court to look at the map of Texas

reproduced on page 133C of the Appendix to the Jurisdic-

tional Statement where the Court can readily see that

28

almost all of the so-called “unexplained deviations” high-

lighted by the court below and by the Appellees occur in

districts which border the state boundaries in East Texas

(Districts 1-9, 3-4, 2-12-14, 5-7-8), in South Texas (Districts

59-51-50), and in far West Texas (Districts 71-7 2). Appel-

lants do not suggest that in every case there were no alter-

natives to drawing lines in the manner in which the Board

did. Certainly El Paso County could have been left intact

creating a plus deviation of 3.7% rather than dividing it

into two districts with minus deviations of 3% and 1.3%.

The City of Lubbock could have been left intact and a

district created which totally encircled it instead of divid-

ing the County of Lubbock into two compact and contiguous

districts, one with a plus deviation of 1.9% and another

with a minus 1.1%. In the case of Bexar County, a decision

had to be made as to whether to remove four census tracts

to reduce the deviation of its 11-place multi-member district

even though this meant increasing the deviation of an

adjoining single-member district.2° Appellees would require

the State to explain in these instances why it deemed popu-

lation equality more important than county integrity, com-

pactness of territory more important than city integrity,

and equality of representation in an 11-member district

block figures available for Jefferson County, the evidence is

undisputed that the Board did not generally have available

other census block (6 App. at 1896). The unavailability

achieving smaller deviations in the single member districts of

Harris County in which the population of one census block

frequently exceeds the population of entire counties elsewhere

in the State.

29

more important that equality of representation in a single-

member district. It is respectfully submitted that the

rationality of what was done is apparent from what Appel-

lees suggest could have been done. And the issue is whether

the lines were drawn in a rational manner, not whether

they could have been drawn in a more rational manner.

If population equality is the only criteria which a state

may use in redistricting the legislature, then Reynolds v.

Sims does not mean what it says. If the State is permitted

to consider other rational policies (and we intentionally

use the plural), then there will always be certain incon-

sistencies which cannot be explained on the basis of “ra-

tionales . . . applied systematically throughout the state.”

(A.Jur.S. 22A). The use of multiple rationales and criteria

and the fact that no situation confronted by the redistrictor

in drawing his map is precisely like anything confronted

before, means that values must be balanced as to each

particular situation and choices made as to which way to

draw the line. To require the State to justify each and

every choice would require either that there be no choice

(other than the kind of computer to use) or that some

method be devised to record the mental processes of the

persons or groups drawing the lines. For even if the devia-

tions were only fractions of percentage points, someone

could always require the State to explain why a certain

census block with a population of 12 was not put into one

district rather than another.?*

26 Indeed, one of the Appellees suggests that since census blocks

(subdivisions of census tracts) were used in the redistricting

of Jefferson County (Districts 5 and 8), the State of Texas

had more precise tools than census tracts with which to achieve

less deviation. (Bernal Brief at 25). Apart from Jefferson

County, however, the undisputed testimony was that census

block figures were not available to the staff of the Board. (6

App. 1896). The unavailability of census block data readily

explains the much criticized deviations among the single-member

districts of Harris County where census tracts, the smallest

building blocks available to the Board, frequently contain more

people than entire counties in many parts of Texas.

30

IV.

THE COMBINATION OF SINGLE-MEMBER

LEGISLATIVE DISTRICTS IN HARRIS COUNTY

AND MULTI-MEMBER LEGISLATIVE DISTRICTS

IN OTHER METROPOLITAN AREAS DOES

NOT DENY EQUAL PROTECTION.

Appellees seek to support the judgment of the court

below on the ground that the apportionment plan, by im-

plementing single-member districts in Houston and multi-

member districts in the other metropolitan areas, without

a “compelling state interest” for doing so, discriminates

against candidates and political associations because the

cost of running for office in a multi-member district is

greater than the cost of running in a single-member dis-

trict.2” .

A. The Differing Treatment of Harris County Was Not

Found to be Unconstitutional by thé Court Below.

The court below concluded as the bases for its decision

“that the apportionment plan for the State of Texas is

unconstitutional as unjustifiably remote from the ideal of

‘one man, one vote’, and that the multi-member districting

schemes for the House of Representatives as they relate

specifically to Dallas and Bexar Counties are unconsfitu-

tional in that they dilute the votes of racial minorities.”

(A.Jur.S. 60A). The court devoted portions of Part I

and the entirety of Part II of its opinion to the combina-

tion of single-member districts in Harris County and multi-

member districts in other areas but concluded only that

- 87The court below recognized, but ignored, that different treat-

‘ ment is not necessarily invidiously discriminatory treatment

when it stated:

“While the Fourteenth Amendment does not prohibit all

unequal treatment of individuals or groups and does permit

rough accommodations, it does prohibit ‘invidious discrim-

ination.’” (A.Jur.8. 26A). ,

31

because of the combination, “the use of multi-member dis-

tricts in Texas cities is subject to serious constitutional

question on the bases of the First Amendment, the Due

Process clause and the Equal Protection clause.” (A.Jur.S.

35A) (Emphasis added).?* The court did not find the mix

of multi-member and single-member districts in different

metropolitan areas unconstitutional, but advised the State

of Texas that such mix in the future would be subjected to

close scrutiny by the court.

The court below first raised this point in Part I of the

opinion in connection with its discussion of the population

deviations. After concluding that the deviations required

justification, and finding none acceptable to it, the court

concluded that Texas had no rational state policy that

“resulted in the population deviations previously discussed

and in the disparate treatments of metropolitan areas.”

(A.Jur.S, 19A).2® The court pointed out that in Kilgarlin*?

28 The court below began Part II of its opinion with the following

language:

“Because of our holding under Reynolds, we are not com-

pelled to decide other questions raised by the plaintiffs

pertaining to the entire State of Texas, although we do feel

compelled to reach conclusions later in the opinion with

regard to specific metropolitan areas [Dallas and Bexar

Counties ].”

Because of this obvious disclaimer regarding the court’s recom-

mendations concerning the use of multi-member districts, appel-

lants did not raise this point in their Brief for Appellants

except to the extent that the court’s discussion of multi-member

districts further evidences that it was not so much the plan that

was faulted, but the method by which the plan was adopted.

29 The court’s description of the use of single-member districts in

Harris County and multi-member districts in other counties

escalated from “disparate” and “different” (A.Jur.S. 19A-21A),

to “haphazard combination” and “irrationality” (A.Jur.S.

22A), to “different and unequal” and “disparate and unequal”

(A.Jur.S. 35A), but never reached the point of “invidious dis-

crimination.”

80 In the plan under consideration in Kilgarlin, Harris County

had been subdivided into three multi-member districts which

conformed to the three Congressional Districts within Harris

County. Dallas County and the other metropolitan areas were

county-wide multi-member districts.

32

the state had “assured” the court that the State’s policy

“limits the size of any multi-member district to fifteen Rep-

resentatives”, and in the current apportionment plan this

“policy” was abandoned without explanation. Thus the

combination became, in the opinion of the court, a “hap-

hazard combination of single and multi-member districts”;

and “irrationality” There after, the court proceeded to

Part II of the opinion, repeating much the same reasoning

as in Part I with regard to multi-member district and, as

a guide for the Legislature in its court-directed apportion-

ment effort, warned that the use of multi-member districts

in Texas is subject to serious constitutional question. But

the judgment below was based upon deviation as to the

entire plan and dilution as to Dallas and Bexar Counties

(unconstitutional effects on voters), not discrimination be-

tween Dallas and Harris Counties as to candidates

Appellants submit that in view of the gratuitous nature

of the trial court’s pronouncement and the speculative evi-

dence on which it was based, this Court should not use

this case as a vehicle for deciding whether a state must

demonstrate a “compelling state interest” before it can

constitutionally use both single- and multi-member districts

in its legislative districting scheme

B. The Proper Test Is Whether, There is a Rational

Basis, Not a Compelling State Interest, For the Combina-

tion of Single- and Multi-Member Districts.

If this Court feels compelled to pass on the issue dis-

cussed here, Appellants submit that the decision of this

Court in Bullock v. Carter, 405 U.S. 134, 92 S.Ct. 849 (1972),

does not require Texas to demonstrate that it was “neces-

sary” to use single-member districts in Harris County and

multi-member districts in other metropolitan counties, but

only that such mix was “not irrational.” In assessing the

33

constitutionality of Texas’ filing fees for primary elections,

this Court in Carter held the State to a more rigid standard

than that usually applied in Equal Protection cases involv-

ing restrictions on candidacy because the Court found that

the filing fee system had “a real and appreciable impact

on the exercise of the franchise, and because this impact

is related to the resources of the voters supporting a par-

ticular candidate . . .” 92 S.Ct. at 856. The filing fee system

limited a candidate’s access to the ballot and a voter’s

choice of candidates on the basis of wealth. It could

unquestionably affect the outcome of particular elections

where competing groups of voters in a given community

had different financial resources. The alternative method

of petitioning for a place on the ballot for the general

election required abandonment of party affiliation.

The most obvious distinction between filing fees and

multi-member districts is that the latter do not limit assess

of candidates or choice of voters and the alternative of

a candidate to not running at all (because of fear of

campaign expense) is party affiliation and particularly run-

ning on a slate. There is admittedly, in any elective con-

test where campaigning is privately financed, a built-in

bias against the poor. All things being equal, the candi-

date with more money has a better chance. Increasing the

size (in terms of population or geography) of the district

— be it single- or multi-member — amplifies the bias. But

this bias is endemic in the present system of elections, and

this Court has never intimated that multi-member or large

single-member districts are invalid per se, or that a State

must demonstrate a “compelling state interest” for using

such districts. To the contrary, this Court has noted that

“when the validity of the multi-member district, as such

was squarely presented, we held that such a district is

not per se illegal under the Equal Protection clause.”

34

Whitcomb v. Chavis, 402 U.S. 124, 142 (1971).. Moreover,

this Court has consistently approved, and even suggested,

the use of multi-member districts in combination with

single-member districts. Indeed, in Whitcomb, this Court

disapproved the lower court’s failure to explain on sup-

portable grounds why it did not create single-member dis-

tricts in the Marion County ghetto and leave the county

otherwise intact as a multi-member district.

The court below recognized that Texas did not have to

demonstrate a “compeling state interest” for its use vel

non of multi-member districts, Indeed, the trial court re-

fused to hold that a State has the burden of justifying

any and all combinations of multi-member and single-

member districts. What the court found invidious was

the use of multi-member districts in all metropolitan areas

except Harris County: a discrimination between the can-

didates of Dallas County and the candidates of Harris

County, one based on geography, not demography or

wealth. It was the different treatment of candidates in

Harris County and candidates in other metropolitan coun-

ties that the court required Texas to demonstrate was

made necessary by a compelling state interest. Bullock v.

Carter does not support this result. The distinction drawn

by Texas is not between the rich and the poor. The dis-

tinction is between all candidates rich and poor alike, in

Harris County and all candidates, rich and poor alike, in

other metropolitan counties, candidates who in no event

run against each other. Theoretically, a poor candidate

in Houston may have a better chance than a candidate of

equal resources in Dallas. But these two candidates are

not running against each other, and the Dallas candidate’s

chance of winning is not improved by requiring that Hous-

ton be made a multi-member district. Any difference of

treatment accorded candidates is based on where they live

and not their financial resources. If the use of multi-

35

member districts in all metropolitan areas, or single-mem-

ber districts in all metropolian areas, does not discriminate

among candidates on the basis of wealth, then the use of

multi-member districts in some areas and single-member

districts in others is not a discrimination based on wealth.

It is doubtful that multi-member districts have the same

“real and appreciable impact on the exercise of the fran-

chise” as do filing fees. But whatever impact they have,

the mere combination of such districts in some communities

with single-member districts in other communities does

not cause such impact to be related to the resources of

the voters supporting a particular candidate. Houston

and Dallas are treated differently, but the difference, not

being related to the financial resources of either’s voters

or candidates, need not be justified by a “compelling state

interest.” It is enough that the different treatment of dif-

ferent geographical areas not be irrational.

C. The State of Texas Has Demonstrated That the Use

of Single-Member Districts in Harris County and Multi-

Member Districts in Other Metropolitan Counties Was Not

Irrational.

Texas had had a history of uniform use of multi-member

districts in its urban areas (although Houston had been

divided into three multi-member districts in 1966). In 1971

the Legislative Redistricting Board followed the lead of

the Legislature and adopted a new, innovative single-

member district plan for Harris County (Houston) in

response to what the Board, in its wisdom and in the

exercise of its discretion, understood to be the wishes of

the citizens of Harris County and in reaction to the favor-

able response of the citizens to the previous system of

three districts. The Board simultaneously, in response to

what it understood to be the wishes of the people of other

urban areas of Texas, retained the traditional multi-

member districts for those areas. The court below held

36

this innovation to be a denial of equal protection to the

citizens of Dallas and Bexar Counties, apparently wholly

on the premise that these counties are urban areas similar

to Houston and should therefore be treated in an identical

manner to Houston. And since this Court has held that the

use of multi-member districts is not per se invidious dis-

crimination (Whitcomb v. Chavis), what the court below

must have found objectionable was the innovative use of

single-member districts in Harris County. The rationale

of the court below apparently is that any innovation in

legislative districting must be implemented simultaneously

throughout a state or not implemented at all. It is further

apparent that the court below will not allow any experi-

mentation in the political process, and will regard any

variations in approach as invidiously discriminatory.

The reasoning of the court below simply does not support

its conclusion that the combination of single-member dis-

tricts in Harris County and multi-member districts in

other metropolitan areas constitutes unequal and discrim-

inatory treatment, nor does the combination suggest a

“lack of rationality,” a “crazy quilt” or a “haphazard com-

bination.” The court below incorrectly analyzed and re-

jected the reasons why Texas chose to treat Harris County

differently.

1. The Former Fifteen Member Limitation in Size of

Multt-Member Districts Was ae a “Policy” Binding

Upon the State.

Appellees find particular comfort in the court’s repeated

criticism of the State’s “unexplained abandonment” of the

“state policy” set forth in Kilgarlin wherein the defendants

“assured” the three-judge court that the size of any multi-

member district would be limited to fifteen Representatives

and that any county that attained a population of a million

37

or more would be subdivided for Representative districts,

upon which assurance the three-judge court relied in

approving the “disparate” treatment between Harris and

Dallas Counties in the 1965 apportionment bill.

Appellees and the court below assume that there was a

“state policy,” assume that “disparate” treatment was in-

volved to an extent that justification was necessary, assume

that defendants “assured” the court of this continuing

plan, and conclude, therefore, that the State must now ex-

plain its abandonment of this plan: An examination of the

underlying rationale for the limitation in size of multi-

member districts in the apportionment plan under conside-

ration in Kilgarlin, demonstrates that the limitation was

a practical approach to effectuate the preference of the

Committee that drafted the plan. The Committee felt that

multi-member districts should be somewhat limited in size

to accommodate voting machines. Harris County, the larg-

est area to be multi-member districted, accommodated a

limitation in that it had within its county lines, three Con-

gressional districts which could be used as boundaries for

multi-member legislative districts. The limitation was

never offered as a “state policy,” and there is no indication

that the court in Kilgarlin was “assured” that the limitation

would be continued in future apportionment plans.

The trial court in Kilgarlin,™ in its discussion of the

different treatment of Harris County, stated at 252 F.Supp.

at 444:

“The Legislature apportioned Harris County in this

manner pursuant to the policy of H.B. 195 which limits

the size of any multi-member district to fifteen Repre-

sentatives.

*1 In Kilgarlin, the attack in this regard was by Harris County

voters, claiming discrimination in that their districts were not

as large as the district in Dallas,

38

“One very practical purpose of this latter limitation

is to avoid overtaxing the capacity of the voting ma-

chines by limiting the size of a multi-member district

to a reasonable population. The presence of more than

fifteen names on a ballot would require the use of two

machines to accommodate all of the candidates, and

this result would increase enormously the expense of a

general election in Texas. The policy will apply equally

to all counties which attain a population of 1,000,000

or more, so this system is not an arbitraty discrimina-

tion toward Harris County. This is not an irrational

state policy by any standard; and in the absence of

substantial population disparity between these dis-

tricts, the system is within the protective language of

Reynolds, 377 U.S. at 579, 84 S.Ct. at 1391.

“For all of the reasons previously mentioned which

justify the use of multi-member districts, plus the

additional practical reason of limiting the load on the

voting machines, this Court holds that House Bill 195

does not deny equal protection ‘of the laws to these

intervenors from Harris County.”

Although the court termed the limitation a “policy,” it

was not presented as such. Apparently, the trial court

relied upon Defendants’ Trial Brief in this regard.** The

Brief sets forth at page 26:

“Although Section 26 does not require that multiple

representatives allotted to a single county be elected at

large, formation of the county into a multi-member

district has been the consistent pattern of apportion-

ment throughout the history of the State. The first

and only deviation from that pattern occurred in H.B.

195, when Harris County was divided into three repre-

sentative districts coextensive with the three congres-

sional districts. This also conformed to a pattern, and

82 Defendants’ Trial Brief, William W. Kilgarlin v. Crawford

Martin, et al, Civil Action No. 63-H-390, In the United States

— Court for the Southern District of Texas, Houston

vision.

39

was based on oe practical grounds as explained

in the statement/by Representative Mutscher which is

Plaintiffs’ Exhibit 1 attached to his deposition.”

Digressing further to the origin of this “state policy,” the

reference in the Brief as to an exhibit reproducing an entry

in the House Journal,®* entitled “Remarks By The Honor-

able G. F. Mutscher Pertaining to House Bill No. 195,”

which provides in pertinent part:

“The committee decided that the traditional use of

multi-member districts should be continued in the

metropolitan areas. Your committee members reached

this decision only after we tried to draw reasonable

single-member districts in the metropolitan areas. Our

attempts convinced us that the task, besides being quite

complicated, was relatively useless. The only available

population figures were from the 1960 census, which

we found very inaccurate for the fast-growing areas

of the cities. In addition, only rarely did the census

tracts following a natural boundary or a well known

boundary which could be easily identified by the people,

and many of the 1960 census boundaries are no longer

in existence because of the rapid road-building program

under way in the large metropolitan areas. Further-

more, the house members from these districts could not

agree on a plan for dividing the areas because most

of these members felt that the fragmentation of the

districts would decrease their strength in the legisla-

ture. All of these considerations led to committee to

eonclude that drawing single-member districts of ap- .

proximately 64,000 people even in the large metropoli-

tan areas would be hopeless and futile task.

“However, the committee did feel that too many

places in a multi-member district could become as con-

fusing to the voter as the single member districts. In or-

der ‘o avoid having an exceptionally long ballot or over-

taxing the capacity of the voting machines, the com-

at Texas House of Representatives 3502-03 (May 31,

40

mittee decided that it would be well advised to limit

the number of places in each district to no more than

15. In this manner we hoped to avoid drawing a number

of small, difficult to identify, meaningless areas and at

the same time prevent a situation where there were so

many candidates the voter could not make a rational

choice.

Thus the large metropolitan counties were given rep-

resentatives in proportion to their population by using

the multi-member district system.”

That the fifteen-member limitation was set forth in Kil-

garlin as an explanation for the subdistricting of the Harris

County multi-member district is apparent, but there is no

indication from the three-judge trial court in Kilgarlin or

from this Court that that particular part of the plan was

left undisturbed in “reliance” upon this “compelling state

interest.” Indeed, the clear import of the quoted language

is that the limitation was the result of “the feeling” of

the House Committee on Congressional and Legislative

Districts, a limitation that the Committee felt “well ad-

vised” to accept. The limitation as such was not enacted

into law,** and surely the “feelings” of a Committee in one

legislature is not a “policy” binding on subsequent legis-

latures. Since the limitation was never a “state policy,”

the “abandonment”*®> required no justification.

4 The plan under consideration in Kilgarlin was enacted into law,

but it contains no reference to the limitation of multi-member

districts to fifteen members. Tex.Rev.Civ.Stat.Ann. art. 195a.

85 The court below further found that “Dallas County in 1971

fits all the elements of the Kilgarlin rationale for single-member

districting, and yet Dallas remains a multi-member district.

...” (A. Jur. §34A). In fact, the Kilgarlin “rationale” did

not even involve single-member districts, and if carried forward,

would not have required single-member districting in Dallas

County, but would have subdivided Dallas into multi-member

districts of less than fifteen members.

41

Another “state policy” which the court below unneces-

sarily rejected was popular sentiment. Some of the mem-

bers of the Board testified that the reason for single-

member districts in Harris and multi-member districts

in Dallas County was popular sentiment.** The court be-

low found this reason to be “simply contradicted by the

record” and even if true, an invalid reason based upon

Lucas v. Colorado General Assembly, 377 U.S. 713 (1964).

Of course, for the rationale of Lucas to be applicable, the

scheme itself must first be constitutionally infirm, and given

this infirmity, the fact that the scheme comports with ma-

jority preference is not sufficient to cure the infirmity. But

here, the scheme itself is not unconstitutional, and thus

Lucas is inapplicable. Even if this reasoning of some mem-

bers of the Board is “contradicted by the record,” the fact

remains that, rightly or wrongly, the members acted, at

least in part, on the basis of what they believed to be

popular sentiment, and thus their action was rational,

or at least not “completely irrational.”

2. The Differing Treatment of Harris County and the

Other Metropolitan Areas Can Be Justified.

Although the differing treatment does not require expla-

nation, an explanation was offered by then Attorney Gen-

eral Crawford Martin, but principally ignored by the court

below. Attorney General Martin testified that in the prior

apportionment plan, Harris County had been treated dif-

ferently frem other metropolitan areas in that it was sub-

divided into three multi-member distrimts along the lines

of its three Congressional districts. In 1971, however, the

Congressional district lines no longer fell entirely within

the county, and therefore to follow these Congressional

86 Calvert Disposition, p. 13 (7 App. 1966); Martin Deposition,

p. 31 (6 App. 1592).

x

42

lines again would have necessiated crossing county lines,

in violation of the Texas Constitution. Thus, a change in

the Harris County districting was necessary, and, with a

history of having been subdivided, it was more. rational

to subdivide Harris County further into single-member

districts than to return-it to one county-wide multi-member

district. (6 App. 1585-86)

The court below did not discuss this explanation directly

but circumvented it by pointing out that Texas could not

justify its multi-member districts on the basis of history.

The court pointed out that, except for the 1965 plan (the

Kilgarlin plan), all Texas metropolitan areas had his-

torically been multi-member districts. Since Texas had

redistricted Harris County into single-member districts,

the court reasoned, it could no longer justify on a historical

basis multi-member districts. The court overlooks the fact

that the Kilgarlin plan was a part of Texas history. Harris

County in 1971 had a history of different treatment, ap-

proved by this court. Harris County simply did not fall

“within the same historical context as any other city”

as the court stated it did.*7 As explained above, for prac-

87 A Jur.S. 35A. In addition, the court concluded that Texas could

not justify its plan on a historical basis because “history is a

questionable justification for unequal treatment in a state with

a history of rather active segregation and a state which has

always been a ‘one-party’ state.” A.Jur.S. 34A. See Brief for

Appellant at 29 n.20. Appellees, in connection with the racial

history of Texas, cite Taylor v. McKetthen, Ua way

L.Ed.2d 648 (1972), for the proposition that racial history

would preclude justifying multi-member districts on a historical

basis, and also as a distinction between this case and Whitcomb.

In Taylor, however, the particular practice under attack (the

drawing of district. lines), itself had a long history of bias and

franchise dilution. 32 L.Ed.2d at 650 n.3. In Texas, the par-

ticular practice under attack (the use of multi-member districts)

does not itself have a history of bias. Taylor does not substan-

tiate that the validity of multi-member districts is examined

upon a basis other than the Whitcomb basis solely because a

state has a “rather colorful history of racial segregation.”

43

tical reasons Harris County could not be subdivided as

it had been in 1965 and thus, since a change was necessary,

it was more reasonable to subdivide it into single-member

districts than to redistrict it into a county-wide multi-

member district.**

V.

THE RECORD DOES NOT SUPPORT THE FINDINGS

OF THE COURT BELOW AND THE ASSERTIONS

OF APPELLEES HERE THAT NEGROES AND

MEXICAN-AMERICANS ARE EFFECTIVELY

EXCLUDED FROM THE POLITICAL PROCESS DUE

TO THE USE OF MULTI-MEMBER DISTRICTS IN

DALLAS AND BEXAR COUNTIES.

A. Dallas County.

Rather than responding in a meaningful way to the

arguments and analysis of Appellants, both the Appellees

and the Amicus have paraphrased or quoted extensively

from the “findings” of the court below, merely regurgitat-

ing the language of that court’s opinion. Some of the

Appellees attempt to support the trial court’s “findings”

by quoting selected words and phrases from the deposi-

tions and trial transcript. While their briefs are enter-

taining, if not to say sensational, they collectively fail to

come to grips with Appellants’ argument: (1) that the

findings of the trial court lack relevance under Whitcomb;

(2) that the trial court erroneously misplaced the burden

of proof by requiring the State to prove effective partici-

pation by minority groups; and (3) that by equating effec-

tive participation with participation as “a matter of right,”

the trial court effectively held multi-member districts per se

invalid. If it stands for nothing else, Whitcomb v. Chavis

clearly places the burden of proof on the challenger of the _

multi-member district, not on the State to meticulously

88 See Crawford Martin Deposition, pp. 24-26, 6 App. 1585-87.

44

prove access as “a matter of right” of every conceivable

minority group, from Negroes to Republicans, to the politi-

cal process.

Central to the ruling of the court below that the use of a

multi-member legislative district in Dallas County violated

standards of equal protection was the finding that selection

of Black candidates by the slate-making D.C.R.G. (Demo-

cratic Committee for Responsthle Government, erroneously

referred to by the court below and by the Appellees here

as the “Dallas Committee for Responsible Government’)

did not respect the wishes of the Black community. The

inference is that the D.C.R.G. selected token*® “Toms” as

Black candidates. In fact, one of the plaintiffs’ own wit-

nesses, Dan Weiser, admitted that Zan Holmes, a Black

legislator from Dallas, was endorsed by a meeting of

Black leaders prior to his endorsement by the D.C.R.G.

(2 App. 453). \

Moreover, it appears that the D.C.R.G., rather than being

a group of downtown businessmen, representing the “estab-

lishment,” was in fact, according to State Senator Oscar

Mauzy, another of the plaintiffs’ witnesses, an organization

formed by precinct chairmen of the Democratic Party in

Dallas County. See testimony quoted in Brief for Appel-

lants p. 32 n. 27. Precinct chairmen are, of course, all elected

from “single-member districts” and are the elected politi-

cians closest to the people. The D.C.R.G. is therefore a

grass roots political organization.

As far as the power of the D.C.R.G. is concerned, the

record clearly reflects that the D.C.R.G. wields political

89 The testimony of William B. Clark III, one of the directors of

the D.C.R.G., is illustrative of the fallacy of the assertion of

the court below that the D.C.R.G. is a racist organization that

seeks to under-represent Blacks. Clark testified that the D.C.R.G.

planned to support three Blacks and one Mexican-American as

candidates for the legislature in the 1972 race. (4 App. 943)

So RMS INY RO RIE GI a Egg cb BH

2, PT eA ee S

45

power, not racial power. Another of the plaintiffs’ wit-

nesses, Dr. Conrad, stated that he doubted that a white

could be elected without the endorsement of the D.C.R.G.

(3 App. 582).

The court below also found that Black citizens of Dallas

County were denied effective representation by the State

Representatives elected from Dallas County. (A.Jur.S.

40A-41A). In fact, the record reflects a remarkable degree

of interest by Dallas County legislators in Black community

problems. One such problem of the Black community in-

volved a proposal to construct an elevated highway in the

Spence community of South Dallas. The proposed highway

project was modified from an elevated highway to a ground

level highway. Dr. Conrad testified concerning the role of

the Dallas County legislators:

“Q. Now, Dr. Conrad, the State Highway Department

had proposed to build an elevated highway through

the Spence community in South Dallas County, had it

not?

A. Yes.

Q. And that was through a predominantly black

area?

A. That’s correct.

Q. And many of our black citizens in that area ob-

jected to the building of that elevated highway, because

they felt there would be rapes, murders and other

crimes committed under it. Is that true?

A. More than just that.

Q. And unsightly?

A. Unsightly. The community felt as though they

had not been consulted adequately. The [sic] felt as

though there had not been adequate representation in

their behalf at Austin, since there were no blacks sit-

ting on the Commission that designed the highway.

Q. Now, isn’t it true that all 15 members of the

46

Legislative Delegation from Dallas County who were

elected at large went to the Highway Department for

the black community and assisted in getting that high-

way lowered to ground level the way the black com-

imunity wanted it?

A. Idon’t know whether all 15. I do know that after

a mass meeting that was chaired by the three black

elective officials in Dallas that we got massive support

from all over, and I would rather suspect that we did

have all 15 of the legislators.” (3 Ap. 590-91).

i

3

3

¥

Dr. Conrad further testified that he_believed that the

Dallas County legislators were influenced by Black voting

power:

“Q. Now, don’t you feel that one of the main reasons

that those 15 members from Dallas County helped get

that highway lowered through the Spence community

was because the black community was a principal moti-

vating factor in getting them elected in the November

primary (sic)?

A. Why, certainly.” (3 App. 592-93).

7 ses

bith aads hha Rig aphids aa Sa hh

Sota y

The court below employed a litmus paper test concerning

the effectiveness of the D.C.R.G., saying:

“Since the Reconstruction Era, there have been only

two blacks from the Dallas County delegation to the

Texas House of Representatives. In addition, these

have been the only two blacks ever slated by the DCRG,

and the first was not until 1966.” [A.Jur.S. 40A, n. 17].

te 9a Lite MAE aS

Politics, however, is rarely so simple a matter as the court

below seems to believe. For example, Rev. Zan Holmes, a

Black Dallas County legislator (and one of the plaintiffs’

witnesses) testified that Berlaind Bashear, one of the un-

40 It gives without saying that the impact of fifteen legislators

upon a State commission is greater than the impact of the two

or three whose single-member districts would be affected.

ae Eh eee MES ee

ee Ta ny

tte aks Litre aed Ebene:

47

successful Black candidates referred to by the court below,

had only lived in Dallas for three or four years at the time

of his unsuccessful race in 1970, and was relatively un-

known. (3 App. 629).

Finally, the court below, naaenaily sensing that the

record before it would not justify findings of what this

Court found missing in Whitcomb v. Chavis, attempted to

distinguish that case on the grounds that (1) the political

and racial conditions currently prevailing in Dallas County

differed from those prevailing in Marion County and (2)

Texas’ history of race relations differed from Indiana’s.

To the extent that the court, in drawing its distinction,

relied on evidence rather than “judicial notice,” the only

significant testimony on this point was that of the plain-

tiffs’ “expert” witness, Dr. Clifton McClesky, who testified

that, at the request of the plaintiffs, he made a comparative

study with respect to minority group access to the political

process in Indiana, as compared with Texas. (2 App. 464-

80). Under cross-examination, however, Dr. McClesky ad-

mitted that his knowledge of Marion County, Indiana, was

sketchy and secondhand at best and demonstrated this by

his ignorance of the fact that Indianapolis is in Marion

County:

“Q. Have you ever visited Merion C in Indiana?

A. No.

’ Q. Have you ever made a study of Marion ty,

Indiana?

A. No. I am not concentrated on Marion County. I

have read some articles on Indiana politics, generally.

Q. Have you ever visited Indianapolis?

A. Yes. I have been in Indianapolis.

Q. Have you ever made a study of conditions in

Indianapolis?

A. No, I have not.

48

“Q. You have undertaken to give testimony about

conditions that exist in the Indiana as compared with

the conditions that exist in Texas, have you not?

A. Yes.

Q. But you are not prepared to tell this Court about

the conditions that exist in Marion County?

A. No, I am not.” (2 App. 486, 488).

In addition to this testimony, the court below took judi-

cial notice of the racial history of Texas in general and 0

Dallas County in particular. (A.Jur.S. 41A-42A). Initially,

it should be noted that it has been some time since racial

segregation was the law in Texas. The most recent instance

of interference in attempts by Negroes to vote in Dallas

County was in 1956. (3 App. 523). And, in the words of

Judge Goldberg: .

“JUDGE GOLDBERG: Clearly, it is not overly rele-

vant to the ultimate issues in this case. ’56 has been a

long, long time ago.” (3 App. 525).

Yet, when the court wrote its opinion it premised its find-

ing of “a recurring poor performance on the part of the

Dallas County delegation concerning the representation of

black interests in the Texas House of Representatives” on

the mere fact that “State legislators from Dallas County,

elected countywide, led the fight for segregation legislation

during the decade of the 1950’s.” (A.Jur.S. 414).

B. Bexar County.

With regard to Bexar County, Appellees have made no

attempt to conform the lower court’s opinion to the guide-

lines set forth in Whitcomb. No argument is made that the

multi-member district in Bexar County in any way operates

to cancel or dilute the voting strength of Mexican-Ameri-

49

cans. Instead, Appellees, as did the court below, chronicle

the economic and cultural deprivation suffered historically

by Mexican-Americans, argue that Mexican-Americans con-

stitute an identifiable ethnic minority, point out repeatedly

the adverse effect on Mexican-American political partici-

pation of the poll tax, execessive filing fees, annual voter

registration requirements, and the voter residency require-

ments, and conclude, therefore, that Bexar County should

have single-member districts. This history need not be con-

troverted since it in no way meets the requirements set

forth in Whitcomb.

Appellees attempt to distinguish Whitcomb on the basis

that Indiana has a viable two-party system where “well

disciplined minorities” and interest groups can form coali-

tions and influence elections. They contrast this to the one-

party situation in Bexar County, and argue that in Texas,

the party does not control the nomination process or for-

mulate a “slate”, thus several candidates usually offer them-

selves for each place. As a result, there is generally a “run-

off”, and “when a candidate favored by a minority enters

a primary election and wins the first round, he is almost

invariably forced into a runoff and defeated when all oppos-

ing forces combine and join against him.” Appellees draw

no conclusions from these distinctions, other than that they

are distinctions. Some conclusions, however, are apparent.

The court in Whitcomb considered the importance of party

control and formulation of the “slate” in the context of

whether minorities were able to participate in the formula-

tion of the slate. Thus, the facts that in Bexar County there

is no slate, that anyone who so desires may offer himself

as a candidate, and that “several candidates usually offer

themselves for each place” leads to the conclusion that there

is no denial whatsoever of the right to participate in the

political process, and indeed shows active participation.

50

Appellees’ argument with regard to Bexar County is set

forth in summary at page 50-51 of the Bernal Brief:

“ _. It is the opportunity to participate that is im-

portant; the opportunity to elect a legislator of one’s

choice or, once elected, to remove\him at the next elec-

tion if his constituency is so disposed. It is this lack of

opportunity to participate that this case—is —

Appellees equate the electing of a legislator with voting for

a legislator of one’s choice. They equate participation\in

politics with winning in politics. This court in Whitcomb

expressly held this not to be the correct standard. Appel-

lees do not argue that Mexican-Americans are denied access

to the political system, that they are denied the right to

_ participate fully in the political system, or that the multi-

member district operates to cancel or dilute their votes.

Instead, they argue that they lose eléctions, and given sin-

gle-member districts, they could win.

Bt ey tenet 2

ee ty te etal

51

CONCLUSION ;

For the foregoing reasons, Appellants respectfully pray

that the judgment of the court below be, in all things, re-

versed, and the redistricting plan enacted by the Legislative

Redistricting Board be declared to satisfy the requirements

of the Fourteenth Amendment.

Respectfully submitted,

Jonny L. Hm

Attorney General of Texas

Larry York

Executive Assistant

Attorney General

Lewis A. JonEs

Assistant Attorney General

Leon JAWORSKI

Auton F. Curry

Special Assistant Attorneys

General

P.O. Box 12548

Capitol Station

Austin, Texas 78711

CERTIFICATE OF SERVICE

The undersigned, a member of the Bar of this Court,

hereby certifies that three copies of the foregoing Reply

Brief For Appellants have this the .... day of February,

1973, been served upon each counsel of record for Appellees

in accordance with Rule 33 of this Court, by depositing the

same in a United States Mailbox, with airmail postage

prepaid, addressed to said counsel at their post office ad-

dresses.

Leon Jaworski