343 F.Supp. 704 (W.D.Tex. 1972), Civ. A. A-71-CA-142, Graves v. Barnes

Docket Nº:Civ. A. A-71-CA-142
Citation:343 F.Supp. 704
Party Name:Graves v. Barnes
Case Date:January 28, 1972
Court:United States District Courts, 5th Circuit, Southern District of Texas
 
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Page 704

343 F.Supp. 704 (W.D.Tex. 1972)

Curtis GRAVES, Individually and on behalf of all other voters and candidates similarly situated

v.

Ben BARNES et al.

Diana REGESTER et al.

v.

Bob BULLOCK et al.

Johnny MARRIOTT et al.

v.

Preston SMITH et al.

Van Henry ARCHER, Jr.,

v.

Preston SMITH et al.

Civ. A. Nos. A-71-CA-142 to A-71-CA-145.

United States District Court, W.D. Texas

Jan. 28, 1972.

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David H. Berg, Stuart M. Nelkin, Houston, Tex., for Curtis Graves and others.

Joe Resweber, Charles J. Wilson, Houston, Tex., for defendants except State officials.

Samuel D. McDaniel, Asst. Atty. Gen., State of Tex., Austin, Tex., for State officials.

Oscar H. Mauzy, Dallas, Tex., Oscar H. Mauzy, David R. Richards, Austin, Tex., for Diana Regester and others.

Walter L. Irvin, Cleophas Steele, Dallas, Tex., for plaintiffs-intervenors Thelma T. Washington, and others.

Edward Idar, Jr., San Antonio, Tex., for plaintiffs-intervenors Joe J. Bernal, and others.

John L. Roach, Dallas Tex., for plaintiffs-intervenors Samuel G. Kail, and others.

Ronald L. Clower, Dallas, Tex., for plaintiffs-intervenors Dick Ree, and others.

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E. Brice Cunningham, Dallas, Tex., for plaintiffs-intervenors George L. Allen, and others.

Roy Orr, Chairman, Democratic Committee, Dr. George Willeford, Chairman, Republican Committee, Earl Luna, Dallas, Tex., R. James George, Jr., Austin, Tex., for Bob Bullock, Sec. of State and others.

Robert M. Greenberg, Dallas, Tex., for Johnny Marriott and others.

Thomas C. Crouch, Dallas, Tex., for plaintiffs-intervenors Tom Crouch and others.

Robert W. Hainsworth, Houston, Tex., for plaintiffs-intervenors Robert Hainsworth and others.

Nathan W. Eason, J. Douglas McGuire, San Antonio, Tex., for Van Henry Archer, Jr., and others.

Before GOLDBERG, Circuit Judge, and JUSTICE and WOOD, District Judges.

PER CURIAM:

We are once again in the Texas sector of the political thicket of legislative redistricting and required to contour the condition of the individual trees as well as the physiography of the forest as we explore for "crazy quilts," "groves," contiguity, compactness, specie, motivation in planting, and other possible impedimenta to constitutionality in redistricting. In ten years of wandering about this political thicket, we have not yet found the burning bush of final explanation. 1 While political processes do not easily lend themselves to judicial explorations, the Supreme Court has directed that the federal courts must play their constitutional roles in assuring the equal protection of the laws with regard to the effectiveness of the individual vote. We do not ever lightly assume the burden of the necessity of meddling with the affairs of another branch of government or with state governments, but the organics of our governmental system have not created the federal courts as political eunuchs. We realize that there is no perfect electoral process, for democracy is at best a search for "proximate solutions" to insoluble problems. 2 But although we essay our task with knowledge of the relative obscurity and difficulty of some inquiries that must be made in a redistricting case, we must nonetheless conduct vigorously our judicial search for the "proximate solutions" to the equal protection of the right to vote in conformance with the constitutional imperatives that have evolved. It is the conclusion of this Court that the Texas redistricting plan for the House of Representatives is not sufficiently proximate to the constitutional imperatives, and we find that plan to be an unconstitutional denial of the equal protection of the laws to all citizens of Texas. There are degrees of trespass, however, and with two exceptions in the proposed House of Representatives that are substantively more compelling than the rest of the Texas proposal, the counties of Dallas and Bexar, we conclude that the state legislature should be given another opportunity to purge itself constitutionally before this Court feels it incumbent to act judicially to correct the inequities. See Wells v. Rockefeller, 1969, 394 U.S. 542, 89 S.Ct. 1234, 22 L.Ed.2d 535. In the cases of Dallas and Bexar Counties the quality and the extent of the constitutional trespass is so egregious that it requires immediate relief.

STATUS OF THE CASES

This consolidated action results from four separate cases filed in four district courts. See F.R.Civ.P. 42(a). As background to the decision, we believe that it would be helpful to sketch the progress of the cases to their present status.

On October 22, 1971, Curtis Graves, a black State Representative from Harris County, filed suit in the Houston Division of the Southern District of Texas,

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challenging the constitutionality of the present apportionment of Senatorial districts in Harris County because of alleged racial gerrymandering. Although an injunction against effectuation of the present Senatorial plan was sought by plaintiff, the convening of a three-judge court was not requested. This action was assigned to the court of the Honorable Carl O. Bue, Jr., United States District Judge, Southern District of Texas.

On November 2, 1971, Diana Regester and several other residents and qualified voters of the Tyler Division, Eastern District of Texas, challenged the Legislative Redistricting Board's plan for the House of Representatives on the grounds, inter alia, that unconstitutional disparities exist in the population of many House districts and that multi-member districts in Texas result in invidious discrimination against certain racial and political elements. Named as defendants in the suit were the Secretary of State of the State of Texas, the Chairman of the Democratic State Executive Committee, the Chairman of the Republican State Executive Committee, the Chairman of the Democratic Executive Committee of Smith County, and the Chairman of the Republican Executive Committee of Smith County, all of whom are charged by Texas law with the performance of certain duties pertaining to Texas primary and general elections. The plaintiffs, bringing their suit in their individual capacities and in behalf of all qualified voters in Texas, were authorized to maintain their action as a class action by order of the court.

Members of several classes were permitted to intervene, both individually and in their respective capacities, and to maintain their actions as class actions. The classes included: (1) black citizens and voters of Dallas County, (2) Mexican-American citizens and voters of Bexar and Dallas Counties (as well as other counties), (3) Republican citizens and voters of Dallas County, (4) poor and middle class citizens of Dallas County desiring to vote for and run for the office of State Representative, (5) white, black, and Mexican-American citizens and voters who are members of the AFL-CIO, an unincorporated association composed of working men and women throughout Texas, and (6) certain black office-holders in Dallas County. This Court is now of the opinion that those conditional orders previously entered which granted class action status to the Tyler plaintiffs and to the six groups of intervenors enumerated above should be amended, F.R.Civ.P. 23(c) (1). The motions to intervene are granted only with respect to the individual and official capacities of the intervenors. The motions to sue or to intervene as classes are hereby denied in the interests of the sound judicial administration of these cases, and the pleadings are hereby amended to eliminate references to class representation, F.R.Civ.P. 23(d) (4). See Whitcomb v. Chavis, 1971, 403 U.S. 124, 128, 91 S.Ct. 1858, 1861, 29 L.Ed.2d 363, 367 n. 1.

The Tyler plaintiffs sought only declaratory relief. In his answer the Secretary of State requested a three-judge court pursuant to 28 U.S.C.A. § 2281, alleging that the inevitable result of any declaratory judgment against the defendants would be an injunction to effectuate the judgment and that injunctive and declaratory relief had essentially the same effect in a redistricting case. We do not feel it necessary to resolve the three-judge issue with regard to the Tyler case, for the panel is unanimous on all issues raised coterminously in the Tyler case and in the consolidated cases from the Northern and Western districts.

On November 2, 1971, subsequent to the filing of the Tyler action, suit was brought in the Dallas Division of the Northern District of Texas. The Dallas plaintiffs allege that the apportionment plan for the Texas House of Representatives is unconstitutional in that multi-member districts discriminate against certain racial, religious, student, and political groups. Injunctive relief against the challenged plan of apportionment and the convening of a three-judge court

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pursuant to 28 U.S.C.A. § 2281 were sought by the plaintiffs. The action was assigned to the Honorable Robert M. Hill, United States District Judge, Northern District of Texas.

On November 24, 1971, the Chairman of the Republican Executive Committee of Bexar County and other Bexar County Republicans filed suit in the San Antonio Division of the Western District of Texas, attacking the multi-member apportionments of certain districts of the Texas House on the same general grounds stated in the actions filed in the Eastern and Northern Districts, and alleging that Senatorial districts in Bexar County were politically and racially gerrymandered. Injunctive relief and the convening of a three-judge court were requested by the plaintiffs. The Honorable Adrian A. Spears, Chief Judge of the Western District of Texas, to whom the action was assigned, subsequently made application to the Honorable John R. Brown, Chief Judge of the Court of Appeals for the Fifth Circuit, for the convening of a three-judge...

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