Kilgarlin v. Martin
| Decision Date | 02 February 1966 |
| Docket Number | Civ. A. No. 63-H-390. |
| Citation | 252 F. Supp. 404 |
| Parties | William W. KILGARLIN et al., Plaintiffs, v. Crawford MARTIN, Secretary of State of the State of Texas, et al., Defendants. |
| Court | U.S. District Court — Southern District of Texas |
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Tony Korioth, Houston, Tex., for plaintiffs.
Charles F. Mitchell, Asst. County Atty. of Harris County, Texas, Houston, Tex., for defendants, William M. Elliott and Robert E. Turrentine, Jr.
Frank Erwin, Jr., Austin, Tex., Chairman of State Democratic Executive Committee.
Waggoner Carr, Atty. Gen. of Texas, Austin, Tex., for all State officials.
Dorsey B. Hardeman, San Angelo, Tex., for intervenors Dorsey B. Hardeman, George Moffett, Louis Crump, Ralph M. Hall, J. P. Work, Grady Hazlewood, Galloway Calhoun, Jr., Tom Creighton, Frank Owen, III, and H. J. Blanchard.
R. Dean Moorhead, Austin, Tex., for intervenors Myra Banfield, Ben Barnes, John E. Blaine, Jack Crain, David Crews, Wayne Gibbens, Forrest A. Harding, George T. Hinson, James L. Slider and Bill Walker.
J. R. Owen, County Atty., Williamson County, Georgetown, Tex., for defendants Sam V. Stone and Dick Cervenka.
Paul H. Dionne, County Atty. of Pecos County, Fort Stockton, Tex., for defendants Walter L. Guenger and Billy Hodges.
R. L. (Bob) Lattimore, Crim. Dist. Atty., and Allyn Zollicoffer, Civil Administrative Asst., Crim. Dist. Atty., Edinburg, Tex., for defendants Milton D. Richardson and Julio Guzman.
Jack H. Holland, County Atty., Henderson County, Athens, Tex., for defendants R. H. Lee and Mrs. Anna Bennet.
Naomi Harney, County Atty., Potter County, Amarillo, Tex., for defendants, W. M. Adams and Mrs. Ann Lyle.
Joseph C. Ternus, County Atty., San Patricio County, Sinton, Tex., for defendants William A. Schmidt and Velma Sherman.
H. C. Davidson, Houston, Tex., for intervenors, Guthrie Taylor, James S. Miles, John Wells and Job. O. Booth, Jr.
Patrick B. Gibbons, III, Dallas, Tex., for defendant Peter O'Donnell, Jr., Chairman of the State Republican Executive Committee.
Before BROWN, Circuit Judge, and INGRAHAM and NOEL, District Judges.
Preface
Plaintiffs ask this Court to abolish House Bill 195, Acts of the 59th Legislature, Regular Session, 1965, c. 351, which reapportions1 the House of Representatives of the State of Texas. Having won the first round in this Court but lost the second round in the Texas Legislature, plaintiffs return here for the third round of a now-typical reapportionment struggle.
The issue now is not whether, but how, to reapportion Texas for the election of its House of Representatives. Plaintiffs vigorously urge that all members of the House should, indeed must, be elected from single-member districts. Plaintiffs press upon the Court their own single-member district reapportionment plan.2 Plaintiffs first offered their plan to the Texas Legislature in 1965. It was rejected. Instead, the Legislature adopted House Bill 195 which embraces a combination plan of single-member, multi-member, and flotorial districts.
Plaintiffs attack the plan of House Bill 195 on various constitutional grounds. But their ultimate thrust is for judicial sanctions which would substitute plaintiffs' plan of single-member districts, only, for the Legislature's combination plan of House Bill 195.
The Court holds that House Bill 195 does not violate the federal Constitution, except as it causes dilution of voting strength in the eleven flotorial districts. The Court declares the Bill federally unconstitutional as to the flotorial districts solely because it dilutes the voting rights of those citizens living in such districts who are permitted to vote for only one legislator. But the Court expressly rejects plaintiffs' contentions that the combination plan of House Bill 195 constitutes an unlawful scheme to minimize the voting strength of or to disenfranchise certain racial and political elements.
The Court declines to substitute its judgment for that of the Texas Legislature as to the preferable composition and configuration of legislative districts, The injunctive relief prayed for is denied. The Court recommits to the Legislature for accomplishment by August 1, 1967 the job of equalizing the votes of citizens living in the flotorial districts, failing which all Representatives from such districts will be elected at large as in multi-member districts.
The present proceedings are in continuation of the suit instituted July 15, 1963 by some of the plaintiffs. In the first round, plaintiffs attacked the state legislative apportionment statutes3 then in effect for Senators as well as Representatives. By summary judgment entered January 11, 1965, the Court declared in Article 3, §§ 25 and 26a of the Texas Constitution4, Vernon's Ann.St., and the apportionment statutes enacted thereunder to be violative of the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.
The Court declined to grant plaintiffs' requests for injunctive relief and an oral hearing. The Court retained jurisdiction and provided that in the event the Legislature had not enacted a constitutionally valid legislative apportionment scheme by August 2, 1965, plaintiffs might petition the Court for further relief. Plaintiffs have returned for that purpose.
The positions of all present parties as well as amicus curiae are set forth in Appendix "A."
At the invitation of the Court, counsel attended the pretrial conference held on July 28, 1965 in the companion case involving congressional reapportionment.5 With the benefit of the Court's views there expressed, counsel prepared a pretrial order in this case, which the Court approved on September 9, 1965.
The pretrial order specifies the issues for decision as:
An evidentiary hearing was held on October 14, 1965. The evidence presented consisted of stipulations, depositions, maps, charts, statistical tables, certified copies of the election statutes from numerous states, and election returns. No witnesses testified in person. Counsel orally summarized the essential testimony contained in the various depositions. Trial briefs were received and extended oral arguments were heard.
Shortly after the hearing, the Court through its Clerk invited counsel to submit additional briefs and written arguments regarding possible remedies in the event the Court should find any of the eleven flotorial districts created in H.B. 195 to be in violation of the Equal Protection Clause, and therefore invalid. In response to this invitation, counsel for plaintiffs filed their Supplemental Brief on November 24, 1965, directed to "new considerations, substantive as well as remedial." The Attorney General of Texas replied to this new brief on December 16, 1965. The case is now ripe for decision.
The expansion of plaintiffs' Supplemental Brief to cover the new issue was undoubtedly occasioned by an objection to plaintiffs' evidence made by defendants, and questions asked by the Court at the oral hearing. The issue will be deemed to have been incorporated in the pretrial order as follows:6
(5) Whether or not, once it is shown that the Legislature could have devised an apportionment scheme with a substantially lessened range of deviation from the ideal, and within the same system established by State policy, the scheme is presumptively invalid and the burden of proof shifts to the proponents thereof.
For simplicity of reference, the Court will refer to these issues as: (1) population disparity, (2) gerrymandering (which is divided into political and racial), (3) Negro disenfranchisement, (4) "crazy-quilt" apportionment, and (5) burden of proof. Also, for simplicity and a degree of brevity, much important material, including elaboration of the Court's views, has been placed in the notes.
The Court has jurisdiction pursuant to 28 U.S.C.A. Sections 2281 and 2284, and retains continuing jurisdiction of the subject matter under 28 U.S. C.A. Section 1343(3). The classes specified are properly before the Court and the parties plaintiff, as well as those aligned as plaintiffs, have standing to sue.
Because of its basic import and critical effect on plaintiffs' case as now postured, involving what they characterize as "a virgin and ill-defined area of the law," we first turn to the basic principles involved in Issue 5.
Plaintiffs' contentions will be...
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