Bush v. Martin

• Decision Date: 02 March 1964
• Docket Number: Civ. A. No. 63-H-266.
• Citation: 224 F. Supp. 499
• Parties: George H. W. BUSH et al., Plaintiffs, v. Crawford MARTIN, Secretary of State of the State of Texas, John Connally, Governor of the State of Texas, Waggoner Carr, Attorney General of the State of Texas, et al., Defendants.
• Court: U.S. District Court — Southern District of Texas

224 F. Supp. 499

George H. W. BUSH et al., Plaintiffs, v. Crawford MARTIN, Secretary of State of the State of Texas, John Connally, Governor of the State of Texas, Waggoner Carr, Attorney General of the State of Texas, et al., Defendants.

Civ. A. No. 63-H-266.

United States District Court S. D. Texas, Houston Division.

October 19, 1963.

Judgment Affirmed March 2, 1964.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

William B. Cassin, Thad Grundy and Hart Mankin, Houston, Tex., for plaintiffs.

Albert P. Jones, First Asst. Atty. Gen., of Texas, Austin, Tex., for Martin, Connally and Carr, defendants.

Joe Resweber, Houston, Tex., Charles F. Mitchell, Houston, Tex., for William M. Elliott, County Judge, and R. E. Turrentine, Jr., County Clerk of Harris County, Texas.

Patrick B. Gibbons III, Dallas, Tex., for O'Donnell.

Heath & Davis, Will D. Davis, Austin, Tex., for Locke.

Glenn R. Lewis, San Angelo, Tex., amicus curiae.

Before BROWN, Circuit Judge, and INGRAHAM and NOEL, District Judges.

Judgment Affirmed March 2, 1964. See 84 S.Ct. 709.

JOHN R. BROWN, Circuit Judge.

This is a frontal assault upon the constitutionality of Texas Statutes apportioning the Congressional Districts among the counties and citizens of the State of Texas. The Plaintiffs are qualified electors and taxpayers from the 8th and 22nd Congressional Districts, respectively. The Defendants comprise three major categories. The first, and principal, group are high executive officers of the State, the Secretary of State, the Governor, and the Attorney General.¹ The second group comprises the duly elected qualified and acting Chairman of the Executive Committees of the Democratic and Republican Parties, respectively.² The third group is made up of the County Judge and the County Clerk of Harris County (comprising Congressional Districts 8 and 22), each of whom is sued individually³ and, it is claimed, as a representative of all other County Judges and County Clerks in the State of Texas similarly situated under F.R.Civ.P. 23.⁴

I.

The immediate objective of the constitutional attack is Art. 197a, Tex.Civ.Stat. Ann., which apportions the Congressional Districts among the counties and citizens of the State of Texas.⁵ Jurisdiction of the case rests on 28 U.S.C.A. § 1343 and 42 U.S.C.A. §§ 1983, 1988, as a suit to redress the deprivation of Federal constitutional rights. A special statutory Three-Judge Court was constituted under 28 U.S.C.A. § 2281. Injunctive as well as declaratory relief is sought. 28 U.S. C.A. §§ 2201 (declaratory judgment), 2202 (injunction).

This case is one of many following in the wake of the celebrated decision in Baker v. Carr, 1962, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663; cf. Gray v. Sanders, 1963, 372 U.S. 368, 83 S.Ct. 801, 9 L.Ed.2d 821, modifying and remanding N.D.Ga., 1962, 203 F.Supp. 158. Because it bears on a specific contention urged with great vigor by Defendants, it is appropriate here to note that Baker v. Carr is not the last word. It is only the latest word, and more are bound to follow.⁶

As we consider the serious legal problems presented, we do so on the basis of a record that is substantially without contradiction. The case was first the subject of informal and formal pretrial hearings in which all issues were delineated so that all parties could offer all evidence thought relevant. Thereafter the case was heard on evidence which is primarily documentary and statistical in nature, the accuracy of which was for all practical purposes stipulated. Except for that authenticating one map, the only oral testimony was that offered by the Defendants. These witnesses were the respective Chairman of the Texas House and Senate Committees on Legislative and Congressional Apportionment. This testimony will be discussed later at some length as it bears on the need for judicial relief and the nature of the remedy, if any, to be afforded. For the present it suffices merely to state that this testimony does not reflect any historic, geographic, economic or sociological justifications for the disparity in the population of the respective Congressional Districts.⁷ The disparity is indeed spectacular. It runs from a low of 216,371 for District 4 to 951,527 for adjoining District 5.⁸ The State average, in contrast, is in the neighborhood of 415,000 to 435,000.⁹ Not surprisingly, the marked excesses over the State average are found primarily in the ever-expanding metropolitan areas of Houston, Dallas, San Antonio, and Fort Worth.¹⁰ But the disparity is not confined to the cities. Three Districts, Nos. 14, 15 and 16 are aggregations of large area and large numbers of people.¹¹ In this malapportionment, Texas, with its District No. 5 (Dallas metropolitan area), has the distinction of the largest single Congressional District in the Nation.¹² The ratio between the District of the highest population and that of the lowest is 4.4 to 1. The highest District is 128.5% larger than the State average (see note 9, supra); the lowest District is 48.1% smaller than the average.

From 1874 on this disparity is the greatest. From 1874 to 1940 the relationship between the highest and lowest district remained fairly constant, the ratios ranging from a low 1.3 to 1 to a high 1.9 to 1. By 1950 the ratio had climbed sharply to 3.6 to 1. Alleviated only momentarily and then only partially by the Reapportionment Act of 1957, Acts 1957, p. 681, the ratio reached the new and present peak of 4.4 to 1 under the 1960 census.¹³

The only significant change in the 1957 Act was to give Harris County (Houston) two Congressmen, splitting former District 8 into two Districts (8 and 22).¹⁴ This left Dallas County (Dallas) the target of greatest discrimination, the effect of which has gotten only worse as time, tide, population explosion and shifts go on.¹⁵ The figures also show that although District 5 (Dallas) suffers the most, it is by no means alone. There are substantial disparities as to Districts 8 and 22 (Houston), District 12 (Fort Worth), District 20 (San Antonio), and the El Paso-anchored District 16 (see note 10, supra.)¹⁶

Thus it is seen that only once since 1933 has Texas made any reapportionment. And when this was done in 1957, only one significant change was made. (See note 14, supra) And so far as this record reflects and our own research has indicated, the unsuccessful efforts to deal with the problem are confined to the proposed reapportionment in the 1963 regular session. This effort took the form of House Bill 871, 58th Legislature, Regular Session 1963, which was passed by the House and sent to the Senate on April 4, 1963. On May 22, 1963, the Senate passed its Committee Substitute for H.B. 871 and sent it to the House. On May 24, 1963, the House refused to concur in the Senate amendments and requested the appointment of a Conference Committee to consider the differences between the two Houses. The Legislature then adjourned sine die on May 24, with no Conference Committee meeting having been held. The testimony of the two legislative witnesses indicates that the most immediate reason for inaction was the lateness of time in the Session and the virtual impossibility of securing enactment of any legislation on such a matter of widespread interest in such short a time. Part of the problem also was, they testified, the absence of any "guidelines" from the United States Supreme Court concerning the prospective legal and constitutional obligations of State Legislatures under the teaching of Baker v. Carr. Other stumbling blocks briefly elucidated by these witnesses concerned adjustment in size and population of District 16 (see note 11, supra), especially in relation to reshuffling of contiguous adjacent counties from other Districts in any split or rearrangement plus the not unnatural regional jealousy between some of the east and northeast Districts and this one covering so much of the western end of the State. We find it unnecessary to examine into or undertake the difficult task of assaying what reasons for this legislative inaction were or were not significant. Accepting as we readily do all that these witnesses testified to, we think this unsuccessful effort is of little final consequence since on its face it did not even begin to provide a reasonably equal reapportionment. Although changes were made in all but 5 Districts, the long existing disparities as to the San Antonio, Fort Worth, and El Paso Districts were left substantially undisturbed.¹⁷ Of course the House proposal represented some improvement. The smallest District under the House Bill was 295,395 (District 3) as opposed to 216,371 (District 4 under Arts. 197a). However there were still 8 Districts having a population less than 350,000 (substantially under the State average of 416,508), and as previously noticed, the metropolitan areas of Dallas, Houston, Fort Worth, and San Antonio still suffered marked underrepresentation along with El Paso-based District 16.¹⁸

The Senate version was even less satisfactory. Thirteen Districts were not changed at all (from the composition under Tex.Civ.Stat.Ann. art. 197a), and, as in the House version, San Antonio, Fort Worth, and the El Paso Area were given no relief (other than the 9,109 person reduction in the size of the El Paso District noticed above).¹⁹

It rounds out the historical-statistical picture to point out that although Baker v. Carr was announced on March 26, 1962, and, in Texas as elsewhere, was a well known fact in contemporary constitutional development, no action toward congressional apportionment was taken by convening a special session of the Legislature thereafter in 1962.²⁰ The legislative witnesses testified that in the 1961 Session the Legislature was preoccupied entirely with the equally troublesome problems of state legislative reapportionment as to both the House and Senate. It is interesting to note here that in contrast to the entire absence of either Texas constitutional or...