White v. Regester
Opinion of the Court
delivered the opinion of the Court.
This case raises two questions concerning the validity of the reapportionment plan for the Texas House of Representatives adopted in 1970 by the State Legislative Redistricting Board: First, whether there were unconstitutionally large variations in population among the districts defined by the plan; second, whether the multimember districts provided for Bexar and Dallas Counties were properly found to have been invidiously discriminatory against cognizable racial or ethnic groups in those counties.
On October 15, 1971, the Redistricting Board’s plan for the reapportionment of the Senate was released, and, on October 22, 1971, the House plan was promulgated. Only the House plan remains at issue in this case. That plan divided the 150-member body among 79 single-member and 11 multimember districts. Four lawsuits, eventually consolidated, were filed challenging the
A three-judge District Court sustained the Senate plan, but found the House plan unconstitutional. Graves v. Barnes, 343 F. Supp. 704 (WD Tex. 1972). The House plan was held to contain constitutionally impermissible deviations from population equality, and the multimember districts in Bexar and Dallas Counties were deemed constitutionally invalid. The District Court gave the Texas Legislature until July 1, 1973, to reapportion the House, but the District Court permitted the Board’s plan to be used for purposes of the 1972 election, except for requiring that the Dallas County and Bexar County multimember districts be reconstituted into single-member districts for the 1972 election.
Appellants appealed the statewide invalidation of the House plan and the substitution of single-member for multimember districts in Dallas County and Bexar County.
I
We deal at the outset with the challenge to our jurisdiction over this appeal under 28 U. S. C. § 1253, which permits injunctions in suits required to be heard and determined by a three-judge district court to be ap
We also hold that appellants, because they appealed from the entry of an injunction, are entitled to review of the District Court’s accompanying declaration that the proposed plan for the Texas House of Representatives, including those portions providing for multimember districts in Dallas and Bexar Counties, was invalid statewide. This declaration was the predicate for the court’s order requiring Dallas and Bexar Counties to be reapportioned into single districts; for its order that “unless the Legislature of the State of Texas on or before July 1,1973, has adopted a plan to reapportion the legislative districts
II
The reapportionment plan for the Texas House of Representatives provides for 150 representatives to be selected from 79 single-member and 11 multimember districts. The ideal district is 74,645 persons. The districts range from 71,597 to 78,943 in population per representative, or from 5.8% overrepresentation to 4.1% underrepresentation. The total variation between the largest and smallest district is thus 9.9%
The District Court read our prior cases to require any deviations from equal population among districts to be
The District Court’s ultimate conclusion was 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 to Bexar Counties are unconstitutional in that they dilute the votes of racial minorities.” Id., at 735.
Insofar as the District Court’s judgment rested on the conclusion that the population differential of 9.9% from the ideal district between District 3 and District 85 made out a prima facie equal protection violation under the Fourteenth Amendment, absent special justification, the court was in error. It is plain from Mahan v. Howell, 410 U. S. 315 (1973), and Gaffney v. Cummings, ante, p. 735, that state reapportionment statutes are not subject to the same strict standards applicable to reapportionment of congressional seats. Kirkpatrick v. Preisler did not dilute the tolerances contemplated by Reynolds v. Sims with respect to state districting, and we did not hold in Swann v. Adams, 385 U. S. 440 (1967), or Kilgarlin v. Hill, 386 U. S. 120 (1967), or
We affirm the District Court’s judgment, however, insofar as it invalidated the multimember districts in Dallas and Bexar Counties and ordered those districts to be redrawn into single-member districts. Plainly, under our cases, multimember districts are not per se unconstitutional, nor are they necessarily unconstitutional when used in combination with single-member districts in other parts of the State. Whitcomb v. Chavis, 403 U. S. 124 (1971); Mahan v. Howell, supra; see Burns v. Richardson, 384 U. S. 73 (1966); Fortson v. Dorsey, 379 U. S. 433 (1965); Lucas v. Colorado General Assembly, 377 U. S. 713 (1964); Reynolds v. Sims, supra.
With due regard for these standards, the District Court first referred to the history of official racial discrimination in Texas, which at times touched the right of Negroes to register and vote and to participate in the democratic processes. 343 F. Supp., at 725. It referred also to the Texas rule requiring a majority vote as a prerequisite to nomination in a primary election and to the so-called “place” rule limiting candidacy for legislative office from a multimember district to a specified “place” on the ticket, with the result being the election of representatives from the Dallas multimember district reduced to a head-to-head contest for each position. These characteristics of the Texas electoral system, neither in themselves improper nor invidious, enhanced the opportunity for racial discrimination, the District Court thought.
IV
The same is true of the order requiring disestablishment of the multimember district in Bexar County. Consistently with Hernandez v. Texas, 347 U. S. 475 (1954), the District Court considered the Mexican-Americans in Bexar County to be an identifiable class for Fourteenth Amendment purposes and proceeded to inquire whether the impact of the multimember district on this group constituted invidious discrimination. Surveying the historic and present condition of the Bexar County Mexican-American community, which is concen
Based on the totality of the circumstances, the District Court evolved its ultimate assessment of the multi-member district, overlaid, as it was, on the cultural and economic realities of the Mexican-American community in Bexar County and its relationship with the rest of the county. Its judgment was that Bexar County Mexican-Americans “are effectively removed from the political processes of Bexar [County] in violation of all the Whitcomb standards, whatever their absolute numbers may total in that County.” Id., at 733. Single-member districts were thought required to remedy “the effects of past and present discrimination against Mexican-Americans,” ibid., and to bring the community into the full stream of political life of the county and State by encouraging their further registration, voting, and other political activities.
The District Court apparently paid due heed to Whitcomb v. Chavis, supra, did not hold that every racial or political group has a constitutional right to be represented in the state legislature, but did, from its own special vantage point, conclude that the multimember district, as designed and operated in Bexar County, invidiously excluded Mexican-Americans from effective participation in political life, specifically in the election of representatives to the Texas House of Representatives. On the record before us, we are not inclined to overturn these findings, representing as they do a blend of history and an intensely local appraisal of the design and impact of
Affirmed in part, reversed in part, and remanded.
APPENDIX TO OPINION OF THE COURT
Article III, § 28, of the Texas Constitution provides:
“The Legislature shall, at its first regular session after the publication of each United States decennial census, apportion the state into senatorial and representative districts, agreeable to the provisions of Sections 25, 26, and 26-a of this Article. In the event the Legislature shall at any such first regular session following the publication of a United States decennial census, fail to make such apportionment, same shall be done by the Legislature Redistricting Board of Texas, which is hereby created, and shall be composed of five (5) members, as follows: The Lieutenant Governor, the Speaker of the House of Representatives, the Attorney General, the Comptroller of Public Accounts and the Commissioner of the General Land Office, a majority of whom shall constitute a quorum. Said Board shall assemble in the City of Austin within ninety (90) days after the final adjournment of such regular session. The Board shall, within sixty (60) days after assembling, apportion the state into senatorial and representative districts, or into senatorial or representative districts, as the failure of action of such Legislature may make necessary. Such apportionment shall be in writing and signed by three (3) or more of the members of the Board duly acknowledged as the act and deed of such Board, and, when so executed and filed with the Secretary of State, shall have force and effect of law. Such apportionment shall become effective at the next succeeding statewide general election. The Supreme Court of Texas shall have jurisdiction to compel such Commission [Board] to perform its duties in accordance with the provisions of this section by writ of mandamus or other extraordinary writs conformable to the usages of law. The Legislature shall provide necessary funds for clerical and technical aid and for other expenses incidental to the work of the Board, and the Lieutenant Governor and the Speaker of the House of Representatives shall be entitled to receive per diem and travel expense during the Board’s session in the same manner and amount as they would receive while attending a special session of the Legislature. This amendment shall become effective January 1, 1951. As amended Nov. 2. 1948.”
The Court held that the plan violated Art. III, § 26, of the Texas Constitution, which provides:
“The members of the House of Representatives shall be apportioned among the several counties, according to the number of population in each, as nearly as may be, on a ratio obtained by dividing the population of the State, as ascertained by the most recent United States census, by the number of members of which the House is composed; provided, that whenever a single county has sufficient population to be entitled to a Representative, such county shall be formed into a separate Representative District, and when two or more counties are required to make up the ratio of representation, such counties shall be contiguous to each other; and when any one county has more than sufficient population to be entitled to one or more Representatives, such Representative or Representatives shall be apportioned to such county, and for any surplus of population it may be joined in a Representative District with any other contiguous county or counties.”
In a separate appeal, we summarily affirmed that portion of the judgment of the District Court upholding the Senate plan. Archer v. Smith, 409 U. S. 808 (1972).
Title 28 U. S. C. § 1253 provides:
“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.”
See Appendix to opinion of the Court, post, p. 770.
It may be, although we are not sure, that the District Court would have invalidated the plan statewide because of what it thought was an irrational mixture of multimember and single-member districts. Thus, in questioning the use of single-member districts in Houston but multimember districts in all other urban areas, and remarking that the State had provided neither “compelling” nor “rational” explanation for the differing treatment, the District Court merely concluded that this classification “may be” an independent ground for invalidating the plan. But there are no authorities in this Court for the proposition that the mere mixture of multimember and single-member districts in a single plan, even among urban areas, is in
The District Court also concluded, contrary to the assertions of certain plaintiffs, that the Senate districting scheme for Bexar County did not “unconstitutionally dilute the votes of any political faction or party.” 343 F. Supp. 704, 735. The majority of the District Court also concluded that the Senate districting scheme for Harris County did not dilute black votes.
The court’s conclusion that the variations in this case were not justified by a rational state policy would, in any event, require re
See Whitcomb v. Chavis, 403 U. S. 124, 141-148 (1971), and the cases discussed in n. 22 of that opinion, including Kilgarlin v. Hill, 386 U. S. 120 (1967), where we affirmed the District Court's rejection of petitioners’ contention that the combination of single-member, multimember, and floterial districts in a single reapportionment plan was “an unconstitutional ‘crazy quilt.’ ” Id., at 121.
There is no requirement that candidates reside in subdistricts of the multimember district. Thus, all candidates may be selected from outside the Negro residential area.
The District Court found that “it is extremely difficult to secure either a representative seat in the Dallas County delegation or the Democratic primary nomination without the endorsement of the Dallas Committee for Responsible Government.” 343 F. Supp., at 726.
Mexican-Americans constituted approximately 20% of the population of the State of Texas.
The District Court found that “[t]he fact that [Mexican-Americans] are reared in a sub-culture in which a dialect of Spanish is the primary language provides permanent impediments to their educational and vocational advancement and creates other traumatic problems.” 343 F. Supp., at 730.
Two other residents of the Barrio, a Negro and an Anglo-American, have also served in the Texas Legislature.
Concurring in Part
with whom Mr. Justice Douglas and Mr. Justice Marshall join, dissenting in No. 71-1476, ante, p. 735, and concurring in part and dissenting in part in No. 72-147.
The Court today upholds statewide legislative apportionment plans for Connecticut and Texas, even though these plans admittedly entail substantial inequalities in the population of the representative districts, and even though the States have made virtually no attempt to justify their failure “to construct districts ... as nearly of equal population as is practicable.” Reynolds v. Sims, 377 U. S. 533, 577 (1964). In reaching this conclusion, the Court sets aside the judgment of the United States District Court for the District of Connecticut holding the Connecticut plan invalid, and the judgment of the United States District Court for the Western Dis
I
At issue in No. 71-1476, Gaffney v. Cummings, is the 1971 reapportionment plan for election of members of the House of Representatives of Connecticut. The plan was premised on a 151-member House, with each member elected from a single-member district. Since the population of the State was 3,032,217, according to 1970 census data, the ideal would fix the population of each district at 20,081. In fact, the population of many
The District Court held the state plan invalid on the ground that “the deviations from equality of populations of the . . . House districts are not justified by any sufficient state interest.”
Although appellant failed to offer cogent reasons in explanation of the substantial variations in district population, the Court nevertheless upholds the state plan. The Court reasons that even in the absence of any explanation for the failure to achieve equality, the showing of a total deviation of almost 8% does not make out a prima facie case of invidious discrimination under the Fourteenth Amendment. Deviations no greater than 8% are, in other words, to be deemed de minimis, and the State need not offer any justification at all for the failure to approximate more closely the ideal of Reynolds v. Sims, supra.
The Texas reapportionment case, No. 72-147, White v. Regester, presents a similar situation, except that the range of deviation in district population is greater and the State’s justifications are, if anything, more meager. An ideal district in Texas, which chooses the 150 members of the State House of Representatives from 79 single-member and 11 multimember districts, is 74,645. As
“[i]n all of the evidence presented in this case, the State has not attempted to explain in terms of rational State policy its failure to create districts equal in population as nearly as practicable, nor has the State sought to justify a single deviation from precise mathematical equality. The lengthy depositions of the members of the legislative redistricting board and of the staff members who did the actual drawing of the legislative district lines are devoid of any meaningful indications of the standards used.” 343 F. Supp. 704, 714 (WD Tex. 1972).
As the District Court’s opinion makes clear, the variations surely cannot be defended as a necessary byproduct of a state effort to avoid fragmentation of political subdivisions. Nevertheless, the Court today sets aside the District Court’s decision, reasoning, as in the Connecticut case, that a showing of as much as 9.9% total deviation still does not establish a prima facie case under the Equal Protection Clause of the Fourteenth Amendment. Since the Court expresses no misgivings about our recent decision in Abate v. Mundt, 403 U. S. 182 (1971), where we held that a total deviation of 11.9% must be
II
The proposition that certain deviations from equality of district population are so small as to lack constitutional significance, while repeatedly urged on this Court by States that failed to achieve precise equality, has never before commanded a majority of the Court.
“that there is a fixed numerical or percentage population variance small enough to be considered de minimis and to satisfy without question the 'as nearly as practicable’ standard. The whole thrust of the 'as nearly as practicable’ approach is inconsistent with adoption of fixed numerical standards which excuse population variances without regard to the circumstances of each particular case.”
The Court reasons, however, that Kirkpatrick v. Preisler,
Moreover, even if Kirkpatrick should be deemed inapplicable to the apportionment of state legislative districts, the reasoning that gave rise to our rejection of a
Although not purporting to quarrel with the principle that precise mathematical equality is the constitutionally mandated goal of reapportionment, the Court today establishes a wide margin of tolerable error, and thereby undermines the effort to effectuate the principle. For it is clear that the state legislatures and the state and federal courts have viewed Kirkpatrick as controlling on the issue of legislative apportionment, and the outgrowth of that assumption has been a truly extraordinary record of compliance with the constitutional mandate. Appellees in No. 71-1476 make the point forcefully by comparing the extent of inequality in the population of legislative districts prior to 1969, the year of our decision in Kirkpatrick, with the extent of inequality in subsequent years.
To appreciate the significance of this encouraging development, it is important to understand that the demand for precise mathematical equality rests neither on
Moreover, if any approach ascribes too much importance to abstract numbers and too little to the realities of malapportionment, it is not Kirkpatrick’s demand for precise equality in district population, but rather the Court’s own de minimis approach. By establishing an arbitrary cutoff point expressed in terms of total percentage variance from the constitutional ideal, the Court fails to recognize that percentage figures tend to hide the total number of persons affected by unequal weighting of votes. In the Texas casé, for example, the District Court pointed out that
“the total deviations for Dallas and Bexar Counties, respectively, amount to about 16,000 people and 5,500 people, for a total of around 21,500 people.*782 The percentage deviation figures are only a shorthand method of expressing the ‘loss,’ dilution, or disproportionate weighting of votes. Just as the Court in Reynolds concluded that legislators represent people, not trees or cows, so we would emphasize that legislators represent people, not percentages of people.” 343 F. Supp., at 713 n. 5.
Finally, it is no answer to suggest that precise mathematical equality is an unsatisfactory goal in view of the inevitable inaccuracies of the census data on which the plans are based. That argument, which we implicitly rejected in Kirkpatrick v. Preisler, supra,
In Fortson v. Dorsey, 379 U. S. 433 (1965), we held that a multimember district is not per se unconstitutional under the Equal Protection Clause, even though we had previously recognized certain inherently undesirable features of the device. See Lucas v. Colorado General Assembly, 377 U. S. 713, 731 n. 21 (1964). We have concluded, however, that the use of the device is, in fact, unconstitutional, where it operates to “ 'minimize or cancel out the voting strength of racial or political elements of the voting population,’ ” Burns v. Richardson, 384 U. S. 73, 88 (1966), quoting from Fortson v. Dorsey, supra, at 439. Today’s decision is the first in which we have sustained an attack on the use of multimember districts. Cf. Whitcomb v. Chavis, 403 U. S. 124, 144 (1971).
With regard to the senatorial districts, the 1971 plan produced a total variance of 1.81%. Although appellees did not specifically challenge the apportionment of senatorial districts, the District Court properly concluded that its finding of unconstitutional deviation in one house required invalidation of the entire apportionment plan. Maryland Committee for Fair Representation v. Tawes, 377 U. S. 656, 673 (1964); Lucas v. Colorado General Assembly, supra, at 735. Burns v. Richardson, supra, at 83.
The District Court pointed out that “the State’s method of computing deviations in the multi-member districts may distort the actual percentage deviations in those eleven districts. . . . Since we have concluded that the 9.9% total deviation is not the result of a good faith attempt to achieve population equality as nearly as practicable, it is unnecessary for us to resolve this complex computational conflict.” 343 F. Supp. 704, 713 n. 5. A similar conflict existed in Mahan v. Howell, 410 U. S. 315 (1973), as I pointed out in my dissenting opinion, id., at 333, and there too the Court declined to indicate any awareness of the dispute.
There is a statement, to be sure, in Swann v. Adams, 385 U. S. 440, 444 (1967), that “\_d\e minimis deviations are unavoidable,” but that statement must be viewed in context. By way of clarification, the Court immediately added that “the Reynolds opinion limited the allowable deviations to those minor variations which ‘are based on legitimate considerations incident to the effectuation of a rational state policy.' 377 U. S. 533, 579.” Ibid. Similarly, the Court noted, quoting from Roman v. Sincock, 377 U. S. 695, 710 (1964), that “the Constitution permits ‘such minor deviations only as may occur in recognizing certain factors that are free from any taint of arbitrariness or discrimination.’ ” 385 U. S., at 444. Swann v. Adams does not, in my view, suggest any support for the proposition that deviations as great as 10% are tolerable in the absence of any justification or explanation by the State.
By contrast, in Mahan v. Howell, supra, the Court expressly reaffirmed the holding of Reynolds v. Sims, 377 U. S. 533 (1964), that “some deviations from the equal-population principle are constitutionally permissible” “[s]o long as the divergences from a strict population standard are based on legitimate considerations incident to the effectuation of a rational state policy.” Id., at 579, quoted in Mahan v. Howell, supra, at 325 (emphasis added). In my view, the Court incorrectly concluded in Mahan v. Howell that Virginia had justified the population variations at issue there. Nevertheless, the Court did follow the line of analysis prescribed in our earlier decisions — requiring the State to justify every deviation from precise equality. The approach of Mahan is, therefore, directly at odds with'the approach adopted today. See also, e. g., Abate v. Mundt, 403 U. S. 182, 185 (1971); Kilgarlin v. Hill, 386 U. S. 120, 122 (1967); Swann v. Adams, supra, at 443-446.
Appellees’ figures are compiled from a table entitled Apportionment of Legislatures, in 17 Council of State Governments, the Book of the States: 1968-1969, pp. 66-67 (1968), and from Council of State Governments, Reapportionment in the Seventies (1973).
Deviations After 1970
See 394 U. S., at 538-540 (1969) (Fortas, J., concurring); Wells v. Rockefeller, 394 U. S. 542, 554 (1969) (White, J., dissenting).
Reference
- Full Case Name
- WHITE, SECRETARY OF STATE OF TEXAS, Et Al. v. REGESTER Et Al.
- Cited By
- 769 cases
- Status
- Published