Bush v. Martin

• Decision Date: 05 January 1966
• Docket Number: Civ. A. No. 63-H-266.
• Citation: 251 F. Supp. 484
• 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

251 F. Supp. 484

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.

January 5, 1966.

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Wm. B. Cassin, Houston, Tex., for plaintiffs.

Waggoner Carr, Atty. Gen., and Hawthorne Phillips, Austin, Tex., Patrick B. Gibbons, Dallas, Tex., Will D. Davis, Austin, Tex., Chas. F. Mitchell, Houston, Tex., for defendants.

Duncan E. Boeckman, Pat S. Holloway, Dallas, Tex., for intervenors.

Neil Caldwell, Angleton, Tex., pro se.

Paul B. Haring, Goliad, Tex., pro se.

Franklin S. Spears, San Antonio, Tex., for Senator Franklin Spears, Senator Don Kennard and Sterling Steves, amici curiae.

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

JOHN R. BROWN, Circuit Judge:

The question is whether the Texas 1965 Congressional Redistricting Act, enacted after our conditional decree holding Vernon's Tex.Rev.Civ.Stat.Ann. art. 197a unconstitutional, is constitutional. We hold that this new Act represents a substantial good faith effort by Texas toward the constitutional goal of population equality and is therefore valid at this time. Consequently, the injunction against its enforcement is denied, but by suitable declaratory order further jurisdiction is retained.

THE NEW 1965 ACT

Although in some respects, it is putting cart before horse, it is helpful, we think, to describe the new Act, H.B. 67.¹ It is this Act which must meet the standards to be discussed at length. And it is this congressional districting plan which must be matched against the contentions pro and con.

Texas is allotted 23 congressmen.² With a total population³ of 9,579,677, the average or Ideal for each district is 416,508. The configuration of the 23 districts and their constituent counties is reflected by the map, Appendix A. As shown by the detailed population analysis of congressional districts established by H.B. 67,⁴ in terms of population the largest overage from the Ideal is 40,584 (Dist. 9), and the greatest underage is 40,308 (Dist. 17). In terms of percentage, the variation is 9.7% above and 9.7% below the Ideal for an aggregate deviation of 19.4%. Of the 23 districts, 6 vary more than 9% plus or minus,⁵ 3 others vary more than 8%,⁶ and 6 others vary more than 5%.⁷ Thus, more than half (15) of the districts vary more than 5% from the Ideal, and the average deviation⁸ of all of the districts is 5.5%. The ratio of the population of the smallest district to that of the largest district is 1:1.22, and this, of course, is also the ratio of the relative voting strength of these districts' residents. And as one might expect for Texas, in terms of people perhaps affected the aggregate population figures are large: 265,428 people are placed in the wrong districts from the standpoint of equality, and what is worse, 5,263,479 Texans are underrepresented by virtue of their residence in overpopulated districts.⁹

THE PRIOR PROCEEDINGS

In October 1963 this Court declared the predecessor statute, Art. 197a, unconstitutional based on disparities that ran from 128% above to 48% below the Ideal.¹⁰ Bush v. Martin, S.D.Tex., 1963, 224 F.Supp. 499. We enjoined the use of Art. 197a in the nomination and election of Members of Congress in the forthcoming 1964 elections. We prescribed that unless valid legislation was enacted, all such candidates would be elected at large.¹¹ 224 F.Supp. at 517 (decree). However, because our view was expressly contrary to that of the 3-Judge Court in Georgia which was shortly to be argued in the Supreme Court,¹² we deferred the effective date of our order to enable the State of Texas to apply for a stay from the Circuit Justice. Such a stay was granted. Shortly on the heels of its February 17, 1964, decision in Wesberry v. Sanders, 1964, 376 U.S. 1, 84 S.Ct. 526, 11 L.Ed.2d 481, the Supreme Court on March 2, 1964, by per curiam decision affirmed our order. Martin v. Bush, 1964, 376 U.S. 222, 84 S.Ct. 709, 11 L.Ed.2d 656. But the affirmance was "without prejudice to the right of the appellants State officials to apply by April 1, 1964, to the District Court for further equitable relief in light of the present circumstances including the imminence of the forthcoming election and `the operation of the election machinery of Texas' noted by the District Court in its opinion." The stay was likewise continued in effect pending disposition by this Court of any applications for equitable relief.

The election officials of the State of Texas, as permitted, filed the application for relief and after a pretrial an extensive factual hearing was held¹³ at which extensive evidentiary material was received. Of unusual importance now, the testimony included that of Robert E. Johnson, Executive Director of the Texas Legislative Council.¹⁴ Mr. Johnson pointed out in great detail the numerous mechanical problems in undertaking the required wholesale redrawing of district lines and, more significant, the TLC's plan to conduct state-wide hearings¹⁵ to ascertain, so far as legally relevant, the wishes of the people, their comments, suggestions, and objections.

At the conclusion of that hearing, this Court for reasons extensively, but orally, stated (and not published as an opinion)¹⁶ concluded that in balancing these equities, the effective date of our injunction should be further stayed. By the formal order of April 1, 1964, we stayed the declaration of unconstitutionality until January 11, 1965, to enable Congressmen elected in November 1964 under the old Act (Art. 197a) to take their seats. This likewise postponed the judicial repeal of Art. 197a to a date subsequent to the convening of the Texas 59th Legislature regular session. We also prescribed that the Legislature should have until August 1, 1965, to enact valid legislation as a substitute for Art. 197a, and in the absence of which we then declared that all candidates for Congress in the 1966 election would run at large.¹⁷ As we had before, we granted a temporary stay of the effective date of that order for a period of seven days to enable the plaintiffs to seek a stay from the Circuit Justice or the Supreme Court. This stay was denied. Now the stage was set for the legislative action which is here attacked.

THE TEXAS LEGISLATURE ACTS

Following our conclusion that the Legislature should be accorded the first opportunity of redistricting Texas, see note 16, supra, the TLC, at the request of the Governor, undertook to study in depth the problem of congressional redistricting. Under its auspices, a Study Committee held hearings in seven cities in distinctive geographical areas of the State, including all of the major metropolitan areas which precipitated much of the problem. By advance publicity, it encouraged interested citizens to appear and offer views including specific proposed plans. The record of these hearings (an exhibit in our case) was available to all members of the Legislature and its committees. Based on these hearings and its study of the problem, the TLC prepared a formal report,¹⁸ a copy of which was furnished to each member of the Legislature. The "Summary Report" which forms a major portion of this document reflected a detailed outline of the factors considered by the TLC. These included a discussion of the Federal Court decisions, the initial decision of this Court, 224 F.Supp. 499, and policy considerations. These in turn included, as discussed, the absence of specific guidelines in the judicial decisions, the difficulty of assuring representation to all in a geographical area of such vast size and distances, the joinder or splitting of some counties contrary to long established custom and legislation, the pairing of some incumbent congressmen in the same district, and the mechanical problems of drawing lines and shifting counties in and out of former groupings.

On the basis of this study, the Study Committee, by a report which the TLC formally approved and adopted, made a number of specific recommendations. It urged, first, that Texas Legislature face up to its responsibility, leaving it neither to the Court by default nor to Congress. And then with the principal aim of population equality, it expressed the hope that counties be divided only to solve the problem in metropolitan areas, district lines be drawn to make geographical areas as small as possible, and that variations from the absolute standard have a reasonably persuasive basis.¹⁹

Without undertaking to exercise legislative functions, the TLC also submitted two specific proposals called Plans A and B with accompanying maps and, of unusual importance, the district lines for the metropolitan areas of Dallas, Houston, San Antonio, and Fort Worth.²⁰ The Plaintiffs²¹ emphasize in their briefs that under Plan A only 3 districts varied more than 4% from the Ideal, one of which varied 4.2%, one 5.2%, and a third 7.4%, with an average deviation of 2.05%. Under Plan B only 5 districts varied more than 4% from the Ideal, one of which varied 4.5%, two 4.8%, and two 5%, for an average deviation of 2.26%.

In briefly summarizing the activities in the legislative process, it is an undeniable fact, as the Plaintiffs emphasize so greatly, that the Act under attack was the product of intense activity in the closing days of the regular session which would mandatorily terminate on May 31, 1965.²² Of course our decree did not compel this haste as our deferred date of August 1, 1965, was deliberately selected to permit more than one special session of 30 days to be convened.²³

In that legislative process, several members of the House sponsored specific plans having quite low percentage deviations from the Ideal.²⁴ More significantly, the House actually passed a bill on May 5, 1965.²⁵ The maximum variation was...