Smith v. Craddick, B--2932
| Decision Date | 16 September 1971 |
| Docket Number | No. B--2932,B--2932 |
| Citation | 471 S.W.2d 375 |
| Parties | Preston SMITH, Governor of the State of Texas, et al., Appellants, v. Tom CRADDICK et al., Appellees. |
| Court | Texas Supreme Court |
Crawford Martin, Atty. Gen., Pat Bailey, Asst. Atty. Gen., Austin, for relators.
Golden, Burrow, Potts & Boeckman, Duncan Boeckman, Dallas, for respondents.
The appellees (Tom Craddick, Robert L. Monaghan, George Willeford, and James L. Kent) as a member of the Texas Legislature, the Republican County Chairman of Midland County, the Republican State Chairman, and as qualified voters, brought this suit as a class action on behalf of all voters of Texas to obtain declaration of the unconstitutionality of House Bill No. 783, 62nd Legislature, Regular Session, 1971, 1 and to enjoin the appellants (Preston Smith, Crawford Martin, Martin Dies, Jr Elmer Baum, Rosenelle Cherry and Barbara Culver) who hold the offices of Governor and Secretary of State of Texas, Chairman of the State Democratic Executive Committee, County Clerk and County Judge of Midland County, from acting to conduct any election procedure pursuant to that House Bill No. 783. The district court entered its final judgment on August 10, 1971, declaring the statute unconstitutional and permanently enjoining the Secretary of State from conducting elections thereunder. The appellants filed their appeal directly to this court pursuant to Art. 1738a, Vernon's Ann.Civ.St. and Rule 499a, Texas Rules of Civil Procedure; and their motion to advance the cause filed on September 3 was granted and the cause was submitted on September 9.
By the statute in question the Legislature has redrawn the representative districts of the state from which members of the House of Representatives of the Texas Legislature are elected. The statute is attacked as violating Section 26, Article III of the Texas Constitution, Vernon's Ann.St. The constitutionality of this redistricting statute is the only question presented to us by the briefs and record. Furthermore, it is the only question over which we have jurisdiction in the direct appeal. State v. Spartan's Industries, inc., 447 S.W.2d 407 (Tex.1969).
Article III, Section 26 of the Texas Constitution has provided since 1876 as follows:
'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.'
Representation in the House of Representatives is thereby apportioned among the counties of the state according to population. If the population of a county is so small as not to entitle that county to one representative, two or more contiguous Counties may be joined in a separate district. When one county has a population which exceeds that which entitles it to one or more representatives, that County is to be apportioned to what it is entitled, and the County may be joined with contiguous counties for the district representative to which the surplus population entitles it. No restriction is seen in this language to prevent drawing district lines within a single county.
The Legislature met the constitutional requirements from 1875 until 1966 in that no county was divided to form a representative district across the county line. Then came the Kilgarlin case in which the three judge federal court struck the flotorial representative districts of the Texas statute then in effect (Kilgarlin v. Martin, 252 F.Supp. 404, S.D.Tex.1966) and the Supreme Court held that the population variation between the districts required further justification (Kilgarlin v. Hill, 386 U.S. 120, 87 S.Ct. 820, 17 L.Ed.2d 771, 1967). These decisions followed the decisions of the United States Supreme Court holding that the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution requires substantially equal legislative representation for all citizens of a state. Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964); Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962). Cf. Hadley v. Junior College District, 397 U.S. 50, 90 S.Ct. 791, 25 L.Ed.2d 45 (1970); Kirkpatrick v. Preisler, 394 U.S. 526, 89 S.Ct 1225, 22 L.Ed.2d 519 (1969); Avery v. Midland County, 390 U.S. 474, 88 S.Ct. 1114, 20 L.Ed.2d 45 (1968).
The requirement of the United States Constitution takes precedence and any inconsistency therewith in the Texas Constitution is thereby vitiated. Whatever Section 26 of Article III provides, there must be equal representation to accord with the holdings of the federal courts. The paramount consideration is the variation, per representative, between the population of the various districts. This variation is usually computed by beginning with the ideal or average district population (in Texas with a 1970 population of 11,196,730 and 150 representatives, that ideal is 74,645), figuring the percent by which the district of the smallest population is overrepresented and the percent by which the district of the largest population is underrepresented, and then adding the two percentage figures together. In Swann v. Adams, 385 U.S. 440, 87 S.Ct. 569, 17 L.Ed.2d 501 (1967) the Florida senate districts under attack ranged from 15.09% Overrepresentation to 10.56% Underrepresentation, and the representative districts ranged from 18.28% Overrepresentation to 15.27% Underrepresentation. The variation or deviation was thus 25.65% In the senate districts and 33.55% In the representative districts. These variations were held to render the Florida plan unconstitutional in the absence of acceptable reasons for the variances. The Texas representative districts considered in the Kilgarlin case, supra, varied from 14.84% Overrepresentation to 11.64% Underrepresentation. The U.S. Supreme Court held that these variances invalidated the apportionment plan unless satisfactorily justified. A reading of the opinions of the lower court and the Supreme Court leaves us with the impression that justification of those variances would be extremely difficult to make to the satisfaction of the Supreme Court.
Another problem is the flotorial district. There is no federal objection to a district that includes several counties, but if the district includes within its boundaries the boundaries of another district or districts, an impermissible population disparity is likely. The larger district may be tested against the ideal as to population variation on the basis of only the member or members elected directly from that particular district, in which case the variation would probably be substantial. Furthermore, the voters who reside within that portion of the flotorial district which composes the encompassed district vote for more than one representative, and the effect is to debase the votes of others who reside in the flotorial district outside the encompassed district. Kilgarlin v. Martin, 252 F.Supp. 404, 418.
Primary considerations of the Fourteenth Amendment of the United States Constitution as...
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