Graves v. Barnes, Civ. A. No. A-71-CA-142 to A-71-CA-145

CourtUnited States District Courts. 5th Circuit. Western District of Texas
Writing for the CourtPER CURIAM
Citation446 F. Supp. 560
PartiesCurtis 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.
Decision Date31 October 1977
Docket NumberA-73-CA-115,Civ. A. No. A-71-CA-142 to A-71-CA-145,A-73-CA-146 and A-73-CA-155.

446 F. Supp. 560

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 and A-73-CA-155.

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

October 31, 1977.


446 F. Supp. 561
COPYRIGHT MATERIAL OMITTED
446 F. Supp. 562
Don C. Gladden, Fort Worth, Tex., for plaintiffs

R. Steve Bickerstaff, Jr., Asst. Atty. Gen., Austin, Tex., for defendants.

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

MEMORANDUM OPINION

PER CURIAM.

Because our selection of the current districting plan1 for Tarrant County, Texas, in 1976 was guided in no small way by constraints of time and practicability,2 we expressly retained jurisdiction to grant further relief if the plan proved inadequate to relieve the constitutional deprivations suffered by the minority communities of Tarrant County.3 In response to the plaintiffs' motion, we made good our promise to reconvene and reconsider the propriety of the legislative districting plan adopted for the county, by convening a hearing of two days duration in September of 1977. We are now graced with a less coercive timetable and a somewhat fuller record upon which to consider the current status of the minorities in Tarrant County. Our earlier ruling was admittedly wrought of practicality; we now determine whether it may stand as a matter of principle.

446 F. Supp. 563

* * * * * *

Two substantive challenges are brought against the current districting plan for Tarrant County. First, it is claimed that the plan unconstitutionally dilutes the voting strength of the county's minority community and thereby denies minorities equal access to the electoral process. Over-saturation of minorities in one district, accompanied by a fragmentation and dispersal of the remaining minorities among other districts, allegedly accomplishes this dilution.

On a second, and essentially independent front,4 the present plan is claimed to violate the Fourteenth Amendment's equal protection requirement that legislative districts be "as nearly of equal population as is practicable." Reynolds v. Sims, 377 U.S. 533, 577, 84 S.Ct. 1362, 1390, 12 L.Ed.2d 506, 536 (1963); Chapman v. Meier, 420 U.S. 1, 95 S.Ct. 751, 42 L.Ed.2d 766 (1975); Conner v. Finch, 431 U.S. 407, 97 S.Ct. 1828, 52 L.Ed.2d 465 (1977). Proof here partakes of a comparison between the plaintiffs' plan, with an absolute population deviation of less than 2%, and the plan now in effect, with a deviation factor of 7.7%.

Our consideration of these vexed questions is diverted by a preliminary issue regarding the scope of our review. Specifically, we are bound to determine whether the present plan is one deserving of indulgent review, by virtue of its purportedly legislative genesis,5 or whether it must be held to those higher standards which pertain to districting plans that are the product of court order.6 This, in turn, requires examination of "the thorny questions concerning the extent to which one plan might be deserving of some presumptive preference on the basis of its closer congruence to the legislatively drawn lines of H.B.1097 citations omitted." Graves v. Barnes, 408 F.Supp. 1050, 1054 n. 8 (W.D.Tex.1976). Also, because our earlier observation that neither plan enjoys legislative approval may no longer be precisely accurate, we must evaluate such legislative imprimatur as the current plan may carry.

That the provisions of House Bill 1097 are presently ineffective as law is beyond dispute.7 Nevertheless, the defendants urge preference to their plan, emphasizing that it retains three districts unchanged from those drawn in House Bill 1097, and makes only minor changes in others.8 This once-removed approximation of legislative intent is claimed to cloak the present plan with the mantle of state policy, thereby to lend it a preferred status over the plaintiffs' proposal.

Although it is an unlikely argument — to proclaim as virtue a kinship with that which was riddled with vice — we of course recognize our duty to respect state apportionment policy. See, e. g., White v. Weiser, 412 U.S. 783, 93 S.Ct. 2348, 37 L.Ed.2d 335 (1973); Whitcomb v. Chavis, 403 U.S. 124, 91 S.Ct. 1858, 29 L.Ed.2d 363 (1971). We perceive the similarity of this matter with the facts of White v. Weiser, supra, and, even as the district court there was required to give deference to state policy appearing in an unconstitutional legislative proposal, we correspondingly stand ready to honor such policy considerations as do not

446 F. Supp. 564
detract from Constitutional requirements. Id., at 795, 93 S.Ct. at 2354-55, 37 L.Ed.2d at 346. We expressly eschew any notion, however, that the present plan deserves that kind of deference that properly attaches to conventional apportionment legislation. The last redistricting proposal which might have laid claim to such preferential treatment was House Bill 1097; along with its rejection by the U. S. Attorney General went any legitimate basis for this court's relaxed scrutiny of the so-called "state" proposal.9 It is, therefore, only to the extent that the present plan demonstrates a legitimate state policy that it enjoys that privileged review which might have been presumptively accorded its predecessor

Since our adoption of the present plan in 1976, the Texas Legislature has convened and adjourned both a Regular and a Special Session. Although neither session produced any bill relating to legislative reapportionment in Texas,10 it is suggested by the defendants that a product of the Special Session lends some form of legislative sanction to the present plan. Specifically, it is argued that the passage of two Resolutions, one by the Texas House of Representatives,11 and one by the Texas Senate,12 demonstrates legislative approval of the current districting scheme. This occurrence, we are told, should weigh in favor of our continuing approval of the present districting plan.

We pretermit an extended discussion of these legislative Resolutions, since their infirmities are obvious. We recognize, of course, that "reapportionment is a complicated process," and that "districting has sharp political impact and inevitably political decisions must be made by those charged with the task." White v. Weiser, supra, 412 U.S. at 795-96, 93 S.Ct. at 2355, 37 L.Ed.2d at 346. It is for that reason, certainly, that "reapportionment is primarily the duty and responsibility of the State through its legislature or other body, rather than of a federal court." Chapman v. Meier, supra, 420 U.S. at 27, 95 S.Ct. at 766, 42 L.Ed.2d at 785. But to suggest that the mere endorsement of the plan adopted by this court in any way meets the task that properly befalls the legislature is to subvert totally the logic of our traditional deference to legislative effort. That deference contemplates a studied and thoughtful approach to the process of legislative apportionment, whereby the resulting legislation may be presumed to embody the legitimate concerns of the general public. It plainly does not envision such an abnegation of the legislative function as is suggested here; so attenuated a claim to the common will can be accorded only limited solicitude.13

Regarding the claim of voting dilution in Tarrant County, our previous comparison of the same two plans that are now before us led us to the following conclusion:

The 1970 census data supplied to the court, as well as the testimony adduced at the recent hearing in this suit, does not demonstrate that either of the two plans is unconstitutional. Both plans provide
446 F. Supp. 565
for a primary district in which minority voters constitute a clear majority. In the Escalante Plan, this district is 49.3% black and 22.2% Mexican American, while the defendants' primary district is 60.2% black and 3.8% Mexican American. In addition, each plan contains a secondary district with approximately 43% minority population. In the plaintiffs' plan, this district is 38.9% black and 3.6% Mexican American, while the defendants' equivalent district is 25.3% black and 18.2% Mexican American. An examination of each plan's tertiary and quartary minority districts adds little flesh to the bones of the foregoing observations. Each of the proposed plans represents a substantial improvement over the former multi-member scheme with its attendant constitutional infirmities.

Graves v. Barnes (Graves III), supra, 408 F.Supp. at 1052-53.

Barring any new evidence on the issue of minority access, we are bound to our holding that the present plan is a constitutional one. Since that earlier writing, however, the 1976 election for members of the Texas House of Representatives was accomplished under the provisions of the present plan. According to plaintiffs, the result of that election provides new evidence of the dilution of minority access to the political process in Tarrant County. Further, the plaintiffs assert the validity of a population survey prepared at their instance and introduced at trial.14 The survey is claimed to show a changing demographic pattern in the primary minority district (District 32-H), which was created under the present districting scheme. This pattern of change purportedly results in an enhancement of minority population in District 32-H, culminating in an oversaturation there, and a concomitant fragmentation of minority influence in the secondary and tertiary minority districts. In due course, we shall turn to a consideration of the plaintiffs' new evidence; but our immediate concern is with the legal background against which the plaintiffs' proof must be viewed.

In order to sustain a claim of denial of minority access to the political process,

the plaintiffs'
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11 practice notes
  • Carstens v. Lamm, Civ. A. No. 81-F-1713
    • United States
    • United States District Courts. 10th Circuit. United States District Court of Colorado
    • January 28, 1982
    ...statute is a stop-gap measure to be utilized in the limited circumstances discussed above. 24 Carsten's reference to Graves v. Barnes, 446 F.Supp. 560 (W.D.Tex.1977) can be dismissed on similar 25 Donnelly was decided in mid-July with the November election less than four months away. The in......
  • Terrazas v. Ramirez, No. D-1817
    • United States
    • Supreme Court of Texas
    • December 17, 1991
    ...White v. Regester, 422 U.S. 935, 95 S.Ct. 2670, 45 L.Ed.2d 662 (1975), on remand, 408 F.Supp. 1050 (W.D.Tex.1976), further proceedings, 446 F.Supp. 560 (W.D.Tex.1977), aff'd sub nom. Briscoe v. Escalante, 435 U.S. 901, 98 S.Ct. 1444, 55 L.Ed.2d 492 (1978) (mem.); Kilgarlin v. Martin, 252 F.......
  • Seamon v. Upham, Civ. A. No. P-81-49-CA.
    • United States
    • United States District Courts. 5th Circuit. United States District Court of Eastern District Texas
    • February 27, 1982
    ...(W.D.Tex.1972); Graves v. Barnes, 378 F.Supp. 640 (W.D. Tex.1973); Graves v. Barnes, 408 F.Supp. 1050 (W.D.Tex.1976); Graves v. Barnes, 446 F.Supp. 560 (W.D.Tex.1977); White v. Weiser, 412 U.S. 783, 93 S.Ct. 2348, 37 L.Ed.2d 335 (1973). This existing congressional apportionment plan provide......
  • Gonidakis v. LaRose, 2:22-cv-0773
    • United States
    • United States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio
    • April 20, 2022
    ...966 (1982) (panel formulated own congressional districts, after state legislature adjourned without adopting a plan); Graves v. Barnes, 446 F.Supp. 560 (W.D. Tex. 1977), aff'd sub nom. Briscoe v. Escalante, 435 U.S. 901 (1978) (panel implemented plaintiffs' proposed state legislative plan, ......
  • Request a trial to view additional results
11 cases
  • Carstens v. Lamm, Civ. A. No. 81-F-1713
    • United States
    • United States District Courts. 10th Circuit. United States District Court of Colorado
    • January 28, 1982
    ...statute is a stop-gap measure to be utilized in the limited circumstances discussed above. 24 Carsten's reference to Graves v. Barnes, 446 F.Supp. 560 (W.D.Tex.1977) can be dismissed on similar 25 Donnelly was decided in mid-July with the November election less than four months away. The in......
  • Terrazas v. Ramirez, No. D-1817
    • United States
    • Supreme Court of Texas
    • December 17, 1991
    ...White v. Regester, 422 U.S. 935, 95 S.Ct. 2670, 45 L.Ed.2d 662 (1975), on remand, 408 F.Supp. 1050 (W.D.Tex.1976), further proceedings, 446 F.Supp. 560 (W.D.Tex.1977), aff'd sub nom. Briscoe v. Escalante, 435 U.S. 901, 98 S.Ct. 1444, 55 L.Ed.2d 492 (1978) (mem.); Kilgarlin v. Martin, 252 F.......
  • Seamon v. Upham, Civ. A. No. P-81-49-CA.
    • United States
    • United States District Courts. 5th Circuit. United States District Court of Eastern District Texas
    • February 27, 1982
    ...(W.D.Tex.1972); Graves v. Barnes, 378 F.Supp. 640 (W.D. Tex.1973); Graves v. Barnes, 408 F.Supp. 1050 (W.D.Tex.1976); Graves v. Barnes, 446 F.Supp. 560 (W.D.Tex.1977); White v. Weiser, 412 U.S. 783, 93 S.Ct. 2348, 37 L.Ed.2d 335 (1973). This existing congressional apportionment plan provide......
  • Gonidakis v. LaRose, 2:22-cv-0773
    • United States
    • United States District Courts. 6th Circuit. United States District Courts. 6th Circuit. Southern District of Ohio
    • April 20, 2022
    ...966 (1982) (panel formulated own congressional districts, after state legislature adjourned without adopting a plan); Graves v. Barnes, 446 F.Supp. 560 (W.D. Tex. 1977), aff'd sub nom. Briscoe v. Escalante, 435 U.S. 901 (1978) (panel implemented plaintiffs' proposed state legislative plan, ......
  • Request a trial to view additional results

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