378 F.Supp. 640 (W.D.Tex. 1974), Civ. A. A-71-CA 142, Graves v. Barnes

Docket Nº:Civ. A. A-71-CA 142
Citation:378 F.Supp. 640
Party Name:Graves v. Barnes
Case Date:January 28, 1974
Court:United States District Courts, 5th Circuit, Southern District of Texas
 
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Page 640

378 F.Supp. 640 (W.D.Tex. 1974)

Curtis GRAVES et al.

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

v.

Preston SMITH et al.

Frank A. ESCALANTE et al.

v.

Mark WHITE et al.

James GASKIN et al.

v.

Mark WHITE et al.

Wanda L. CHAPMAN et al.

v.

Mark W. WHITE, Jr., et al.

Civ. A. Nos. A-71-CA 142 to A-71-CA-145, A-73-CA-115, A-73-CA-146, A-73-CA-155.

United States District Court, W.D. Texas, Austin Division.

Jan. 28, 1974

Probable Jurisdiction Noted May 28, 1974, See 94 S.Ct. 2601

Page 641

R. James George, Jr., Austin, Tex., Norman M. Bonner, Jr., Don Gladden, Forth Worth, Tex., J. Phillip Crawford, David R. Richards, Austin, Tex., George J. Korbel, San Antonio, Tex., for plaintiffs.

John L. Hill, Atty. Gen. of Tex., Austin, Tex., Elizabeth Levatino, Asst. Atty. Gen., for defendants.

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

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MEMORANDUM OPINION AND ORDER

PER CURIAM:

On December 13, 1971, this three-judge court was convened pursuant to the order of Chief Judge Brown to hear four suits attacking the constitutionality of the state legislative redistricting plan adopted by the Texas legislature in 1971. The original complaints alleged: (1) racial gerrymandering in the establishment of the Harris County Senatorial districts; and (3) invidious discrimination among the state's 101 House districts; and (3) invidious discrimination against certain racial and ethnic groups as a result of multi-member House districts in eleven counties.

In Graves v. Barnes, 343 F.Supp. 704 (W.D.Tex.1972), this Court upheld the validity of the Harris County Senatorial plan, found unconstitutionally high population variances in the House apportionment scheme, and ordered the implementation of single-member districts in Dallas and Bexar counties for the approaching 1972 elections. Though the plaintiffs did not withdraw their contentions concerning the unconstitutionality of the nine remaining multi-member districts in the Texas House of Representatives, under the press of time and by agreement of the parties, 1 no testimony was offered on these districts at the initial trial.

In white v. Regester, 412 U.S. 755, 93 S.Ct. 2332, 37 L.Ed.2d 314 (1973), the United States Supreme Court reversed our holding that the population variances in the 1971 House plan violated the principle of 'one man, one vote,' but affirmed that portion of the decision requiring single-member districts in Dallas and Bexar Counties. 2 The Supreme Court then remanded this case 'for further proceedings in conformity with the opinion of this Court.' On this remand the original plaintiffs and unchallenged intervenors have presented evidence of the effect of the nine multi-member districts on minority access to the political process, requiring us once again to wander through the political thicket.

Since the time of our consideration of the House districts in Dallas and Bexar Counties, the decisions of the Supreme Court in White and of the Fifth Circuit Court of Appeals in Zimmer v. McKeithen, 485 F.2d 1297 (5th Cir. 1973), and Turner v. McKeithen, 490 F.2d 191 (5th Cir. 1973), have provided considerable instruction on the proper standards of judgment when multi-member districts are alleged to deny racial or ethnic minorities equal protection of the law by denying them equal access to the political process. White, read along with its antecedents, descendants, and collaterals, has scythed much underbrush from the jungle to be penetrated in reapportionment cases. This path-clearing has permitted us to chart our way more securely along constitutional ground. White reaffirmed the teaching of Whitcomb v. Chavis, 403 U.S. 124, 91 S.Ct. 1858, 29 L.Ed.2d 363 (1971), that multi-member districts are not unconstitutional per se and emphasized that in order to show that multi-member districts have cancelled out or minimized minority voting strength, plaintiffs must

produce evidence to support findings that the political processes leading to nomination and election were not equally open to participation by the (racial or ethnic) group in question-- that its members had less opportunity than did other residents in the district to participate in the political processes and to elect legislators of their choice. 412 U.S. at 766, 93 S.Ct. at 2339.

But in upholding this court's finding of unconstitutional dilution in two multimember districts, the Supreme Court was afforded the opportunity to indicate, in considerably greater detail than

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had been possible in Whitcomb, precisely what political and demographic factors would support a finding of insufficient access and would therefore justify the ordering of smaller single-member districts in which the concentrated racial or ethnic group would make up a greater percentage of the district population.

I.

The Supreme Court first noted the political and social facts of life in Texas that this panel has found crucial to an understanding of the operation of multi-member districts in the state. Political access is not a vapid phrase confined within a rigid formula, but is frequently perpetuated by mores, folkways, and customs. In this area the Supreme Court has liberated us from any dichotomy of de facto and de jure. It is not necessary to establish that minority voters are being legally disenfranchised. We are permitted to explore the entire environment and to measure its political pollutants. Unlike Indiana, the state under consideration in Whitcomb, Texas has historically been a one-party state with a history pockmarked by a pattern of racial discrimination that has stunted the electoral and economic participation of the black and brown communities in the life of the state. The isolation of Mexican-Americans arising from such discrimination has been further exacerbated by cultural and language barriers. The all-white primary system, the poll tax, and the most restrictive voter registration procedures in the nation 3 have left behind them a pattern of political apathy that continues to inhibit the participation of minority groups in the political process. In addition, the current electoral system, while no longer marred by the flagrantly discriminatory practices of the past, retains many features that were found in the original proceedings to facilitate minority exclusion. Texas requires that a candidate garner a majority of the vote in a primary election in order to receive party nomination. The state legislative races in particular are marked by a requirement that candidates from a multi-member district run for a specific 'place' on the ballot. Since there is no matching provision that these places correspond to particular sections of the district in which the candidate must reside, the rule serves no function but to reduce the election to a series of head-to-head contests with a consequent emphasis on the racial element where it appears. Nor does there exist any rational state policy explaining the present use of multimember districts in any county.

Though these statewide conditions alone are not sufficient to demonstrate the invidious effect of multi-member districts in any particular county, they do provide a continuing background for specific findings on the positions of minority communities in the nine challenged districts. White and its progeny indicate that, given these general conditions, the plaintiffs' burden is satisfied by proof of the existence of an 'aggregate of factors,' 4 including: (1) restricted access of minority groups to the slating of candidates for particular party nominations; (2) the consistent use of racist campaign tactics to defeat minority candidates or those championing minority concerns; (3) the indifference or hostility of the district-wide representatives to particularized minority interests; and (4) the inability of minority groups to obtain representation in proportion to their percentage of the district population. No one element is the sine qua non of a finding of denial of access; nor must all be present in any given county. In order for a court to grant the requested relief, however, a combination of these factors must have the effect of fencing the minority out. A court must be shown the wire and enough of the barbs to make for an effective barrier.

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Mindful of these factors, and on the basis of an 'intensely local appraisal' of the impact of multi-member districts in each county, we have determined that in seven of the nine challenged districts the present multi-member scheme operates to deny black and brown voters access to the political process. We have reviewed each county from a contemporary vista, while always remembering that our todays are the products of our yesterdays. Here as in many constitutional thickets it has been wisely said that a page of history is worth a volume of logic.

A. DISTRICT 59 (HIDALGO COUNTY)

Plaintiffs conceded at trial that they were unable to produce evidence to prove that the two-place multi-member district in Hidalgo County operates to deny any racial or ethnic group access to the political process. On the record before us, there is no basis for a holding that the present legislative plan for Hidalgo County violates the constitutional guarantee of equal protection of the laws.

B. DISTRICT 32 (TARRANT COUNTY)

District 32 is contained entirely within Tarrant County, and encompasses 147 and a fraction of Tarrant County's 161 census tracts. The total population of the district is 675,368, making it the largest remaining multi-member legislative district in the state; a delegation of nine represents District 32 in the House of Representatives.

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