Mark WHITE, Jr., et al., Appellants v. Diana REGESTER et al.

412 U.S. 755

93 S.Ct. 2332

37 L.Ed.2d 314

Mark WHITE, Jr., et al., Appellants
Diana REGESTER et al.

No. 72—147.

Argued Feb. 26, 1973.

Decided June 18, 1973.


In this litigation challenging the Texas 1970 legislative reapportionment scheme, a three-judge District Court held that the House plan, statewide, contained constitutionally impermissible deviations from population equality, and that the multimember districts provided for Bexar and Dallas Counties invidiously discriminated against cognizable racial or ethnic groups. Though the entire plan was declared invalid, the court permitted its use for the 1972 election except for its injunction order requiring those two county multimember districts to be reconstituted into single-member districts. Held:

1. This Court has jurisdiction under 28 U.S.C. § 1253 to consider the appeal from the injunction over applicable to the Bexar County and Dallas County districting, since the three-judge court had been properly convened, and this Court can review the declaratory part of the judgment below. Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147. Pp. 759—761.

2. State reapportionment statutes are not subject to the stricter standards applicable to congressional reapportionment under Art. I, § 2, and the District Court erred in concluding that this case, where the total maximum variation between House districts was 9.9%, but the average deviation from the ideal was 1.82%, involved invidious discrimination in violation of the Equal Protection Clause. Cf. Gaffney v. Cummings, 412 U.S. 735, 93 S.Ct. 2321, 37 L.Ed.2d 298. Pp. 761—764.

3. The District Court's order requiring disestablishment of the multi-member districts in Dallas and Bexar Counties was warranted in the light of the history of political discrimination against Negroes and Mexican-Americans residing, respectively, in those counties and the residual effects of such discrimination upon those groups. Pp. 765—770.

D.C., 343 F.Supp. 704, affirmed in part, reversed in part, and remanded.


Leon Jaworski, Houston, Tex., for appellants.


David R. Richards, Austin, Tex., for appellees Regester and others.


Ed Idar, Jr., San Antonio, Tex., for the Mexican-American appellees, Bernal and others.


Thomas Gibbs Gee, Austin, Tex., for the Republican appellees Willeford and others.


Mr. Justice WHITE delivered the opinion of the Court.


This case raises two questions concerning the validity of the reapportionment plan for the Texas House of Representatives adopted in 1970 by the State Legislative Redistricting Board: First, whether there were unconstitutionally large variations in population among the districts defined by the plan; second, whether the multimember districts provided for Bexar and Dallas Counties were properly found to have been invidiously discriminatory against cognizable racial or ethnic groups in those counties.


The Texas Constitution requires the state legislature to reapportion the House and Senate at its first regular session following the decennial census. Tex.Const., Art. III, § 28 Vernon's Ann. St.1 In 1970, the legislature proceeded to reapportion the House of Representatives but failed to agree on a redistricting plan for the Senate. Litigation was immediately commenced in state court challenging the constitutionality of the House reapportionment. The Texas Supreme Court held that the legislature's plan for the House violated the Texas Constitution.2 Smith v. Craddick, 471 S.W.2d 375 (1971). Meanwhile, pursuant to the requirements of the Texas Constitution, a Legislative Redistricting Board had been formed to begin the task of redistricting the Texas Senate. Although the Board initially confined its work to the reapportionment of the Senate, it was eventually ordered, in light of the judicial invalidation of the House plan, to also reapportion the House. Mauzy v. Legislative Redistricting Board, 471 S.W.2d 570 (1971).


On October 15, 1971, the Redistricting Board's plan for the reapportionment of the Senate was released, and, on October 22, 1971, the House plan was promulgated. Only the House plan remains at issue in this case. That plan divided the 150-member body among 79 single-member and 11 multimember districts. Four lawsuits, eventually consolidated, were filed challenging the Board's Senate and House plans and asserting with respect to the House plan that it contained impermissible deviations from population equality and that its multimember districts for Bexar County and Dallas County operated to dilute the voting strength of racial and ethnic minorities.


A three-judge District Court sustained the Senate plan, but found the House plan unconstitutional. Graves v. Barnes, 343 F.Supp. 704 (W.D.Tex.1972). The House plan was held to contain constitutionally impermissible deviations from population equality, and the multimember districts in Bexar and Dallas Counties were deemed constitutionally invalid. The District Court gave the Texas Legislature until July 1, 1973, to reapportion the House, but the District Court permitted the Board's plan to be used for purposes of the 1972 election, except for requiring that the Dallas County and Bexar County multi-member districts be reconstituted into single-member districts for the 1972 election.


Appellants appealed the statewide invalidation of the House plan and the substitution of single-member for multi-member district in Dallas County and Bexar County.3 Mr. Justice Powell denied a stay of the judgment of the District Court, 405 U.S. 1201, 92 S.Ct. 752, 30 L.Ed.2d 769 and we noted probable jurisdiction sub nom., Bullock v. Regester, 409 U.S. 840, 93 S.Ct. 70, 34 L.Ed.2d 79.


* We deal at the outset with the challenge to our jurisdiction over this appeal under 28 U.S.C. § 1253, which permits injunctions in suits required to be heard and determined by a three-judge district court to be appealed directly to this Court.4 It is first suggested that the case was not one required to be heard by a three-judge court. The contention is frivolous. A statewide reapportionment statute was challenged and injunctions were asked against its enforcement. The constitutional questions raised were not insubstantial on their face, and the complaint clearly called for the convening of a three-judge court. That the court declared the entire apportionment plan invalid, but entered an injunction only with respect to its implementation for the 1972 elections in Dallas and Bexar Counties, in no way indicates that the case required only a single judge. Appellants are therefore properly here on direct appeal with respect to the injunction dealing with Bexar and Dallas Counties, for the order of the court directed at those counties was literally an order 'granting . . . an . . . injunction in any civil action . . . required . . . to be heard and determined by a district court of three judges' within the meaning of § 1253.


We also hold that appellants, because they appealed from the entry of an injunction, are entitled to review of the District Court's accompanying declaration that the proposed plan for the Texas House of Representatives, including those portions providing for multimember districts in Dallas and Bexar Counties, was invalid statewide. This declaration was the predicate for the court's order requiring Dallas and Bexar Counties to be reapportioned into single districts; for its order that 'unless the Legislature of the State of Texas on or before July 1, 1973, has adopted a plan to reapportion the legislative districts within the State in accordance with the constitutional guidelines set out in this opinion this Court will so reapportion the State of Texas'; and for its order that the Secretary of State 'adopt and implement any and all procedures necessary to properly effectuate the orders of this Court in conformance with this Opinion . . ..' 343 F.Supp., at 737. In these circumstances, although appellants could not have directly appealed to this Court the entry of a declaratory judgment unaccompanied by any injunctive relief, Gunn v. University Committee, 399 U.S. 383, 90 S.Ct. 2013, 26 L.Ed.2d 684 (1970); Mitchell v. Donovan, 398 U.S. 427, 90 S.Ct. 1763, 26 L.Ed.2d 378 (1970), we conclude that we have jurisdiction of the entire appeal. Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973); Florida Lime & Avocado Growers v. Jacobsen, 362 U.S. 73, 80 S.Ct. 568, 4 L.Ed.2d 568 (1960). With the Texas reapportionment plan before it, it was in the interest of judicial economy and the avoidance of piecemeal litigation that the three-judge District Court have jurisdiction over all claims raised against the statute when a substantial constitutional claim was alleged, and an appeal to us, once properly here, has the same reach. Roe v. Wade, supra, 410 U.S. at 123, 93 S.Ct. at 711; Carter v. Jury Comm'n, 396 U.S. 320, 90 S.Ct. 518, 24 L.Ed.2d 549 (1970); Florida Lime & Avocado Growers v. Jacobsen, supra, 362 U.S. at 80, 80 S.Ct. at 573.



The reapportionment plan for the Texas House of Representatives provides for 150 representatives to be selected from 79 single-member and 11 multimember districts. The ideal district is 74,645 persons. The districts range from 71,597 to 78,943 in population per representative, or from 5.8% overrepresentation to 4.1% underrepresentation. The total variation between the largest and smallest district is thus 9.9%.5


The District Court read our prior cases to require any deviations from equal population among districts to be justified by 'acceptable reasons' grounded in state policy; relied on Kirkpatrick v. Preisler, 394 U.S. 526, 89 S.Ct. 1225, 22 L.Ed.2d 519 (1969), to conclude that the permissible tolerances suggested by Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964), had been substantially eroded; suggested that Abate v. Mundt, 403 U.S. 182, 91 S.Ct. 1904, 29 L.Ed.2d 399 (1971), in accepting total deviations of 11.9% in a county reapportionment was sui generis; and considered the 'critical issue' before it to be whether 'the State (has) justified any and all variances, however small, on the basis of a consistent, rational State policy.' 343 F.Supp., at 713. Noting the single fact that the total deviation from the ideal between District 3 and District 85 was 9.9%, the District Court concluded that justification by appellants was called for and could discover no acceptable state policy to support the deviations. The District Court was also critical of the actions and procedures of the Legislative Reapportionment Board and doubted 'that (the) board did the sort of deliberative job . . . worthy of judicial abstinence.' Id., at 717. It also considered the combination of single-member and multimember districts in the House plan 'haphazard,' particularly in providing single-member districts in Houston and multimember districts in other metropolitan areas, and that this 'irrationality, without reasoned justification, may be a separate and distinct ground for declaring the plan unconstitutional.'6 Ibid. Finally, the court specifically invalidated the use of multimember districts in Dallas and Bexar Counties as unconstitutionally discriminatory against a racial or ethnic group.


The District Court's ultimate conclusion was that 'the apportionment plan for the State of Texas is unconstitutional as unjustifiably remote from the ideal of 'one man, one vote,' and that the multi-member districting schemes for the House of Representatives as they relate specifically to Dallas and to Bexar Counties are unconstitutional in that they dilute the votes of racial minorities.' Id., at 735.7


Insofar as the District Court's judgment rested on the conclusion that the population differential of 9.9% from the ideal district between District 3 and District 85 made out a prima facie equal protection violation under the Fourteenth Amendment, absent special justification, the court was in error. It is plain from Mahan v. Howell, 410 U.S. 315, 93 S.Ct. 979, 35 L.Ed.2d 320 (1973), and Gaffney v. Cummings, 412 U.S. 735, 93 S.Ct. 2321, 37 L.Ed.2d 298, that state reapportionment statutes are not subject to the same strict standards applicable to reapportionment of congressional seats. Kirkpatrick v. Preisler did not dilute the tolerances contemplated by Reynolds v. Sims with respect to state districting, and we did not hold in Swann v. Adams, 385 U.S. 440, 87 S.Ct. 569, 17 L.Ed.2d 501 (1967), or Kilgarlin v. Hill, 386 U.S. 120, 87 S.Ct. 820, 17 L.Ed.2d 771 (1967), or later in Mahan v. Howell, supra, that any deviations from absolute equiality, however small, must be justified to the satisfaction of the judiciary to avoid invalidation under the Equal Protection Clause. For the reasons set out in Gaffney v. Cummings, supra, we do not consider relatively minor population deviations among state legislative districts to substantially dilute the weight of individual votes in the larger districts so as to deprive individuals in these districts of fair and effective representation. Those reasons are as applicable to Texas as they are to Connecticut; and we cannot glean an equal protection violation from the single fact that two legislative districts in Texas differ from one another by as much as 9.9%, when compared to the ideal district. Very likely, larger differences between districts would not be tolerable without justification 'based on legitimate considerations incident to the effectuation of a rational state policy,' Reynolds v. Sims, 377 U.S., at 579, 84 S.Ct. at 1391; Mahan v. Howell, supra, 410 U.S. at 325, 93 S.Ct. 985, but here we are confident that appellees failed to carry their burden of proof insofar as they sought to establish a violation of the Equal Protection Clause from population variations alone. The total variation between two districts was 9.9%, but the average deviation of all House districts from the ideal was 1.82%. Only 23 districts, all single-member, were overrepresented or underrepresented by more than 3%, and only three of those districts by more than 5%. We are unable to conclude from these deviations alone that appellees satisfied the threshold requirement of proving a prima facie case of invidious discrimination under the Equal Protection Clause. Because the District Court had a contrary view, its judgment must be reversed in this respect.8



We affirm the District Court's judgment, however, insofar as it invalidated the multimember districts in Dallas and Bexar Counties and ordered those districts to be redrawn into single-member districts. Plainly, under our cases, multimember districts are not per se unconstitutional, nor are they necessarily unconstitutional when used in combination with single-member districts in other parts of the State. Whitcomb v. Chavis, 403 U.S. 124, 91 S.Ct. 1858, 29 L.Ed.2d 363 (1971); Mahan v. Howell, supra; see Burns v. Richardson, 384 U.S. 73, 86 S.Ct. 1286, 16 L.Ed.2d 376 (1966); Fortson v. Dorsey, 379 U.S. 433, 85 S.Ct. 498, 13 L.Ed.2d 401 (1965); Lucas v. Colorado General Assembly, 377 U.S. 713, 84 S.Ct. 1459, 12 L.Ed.2d 632 (1964); Reynolds v. Sims, supra.9 But we have entertained claims that multimember districts are being used invidiously to cancel out or minimize the voting strength of racial groups. See Whitcomb v. Chavis, supra; Burns v. Richardson, supra; Fortson v. Dorsey, supra. To sustain such claims, it is not enough that the racial group allegedly discriminated against has not had legislative seats in proportion to its voting potential. The plaintiffs' burden is to produce evidence to support findings that the political processes leading to nomination and election were not equally open to participation by the group in question—that its members had less opportunity than did other residents in the district to participate in the political processes and to elect legislators of their choice. Whitcomb v. Chavis, supra, at 149—150, 91 S.Ct. at 1872.


With due regard for these standards, the District Court first referred to the history of official racial discrimination in Texas, which at times touched the right of Negroes to register and vote and to participate in the democratic processes. 343 F.Supp., at 725. It referred also to the Texas rule requiring a majority vote as a prerequisite to nomination in a primary election and to the so-called 'place' rule limiting candidacy for legislative office from a multimember district to a specified 'place' on the ticket, with the result being the election of representatives from the Dallas multimember district reduced to a head-to-head contest for each position. These characteristics of the Texas electoral system, neither in themselves improper nor invidious, enhanced the opportunity for racial discrimination, the District Court thought.10 More fundamentally, it found that since Reconstruction days, there have been only two Negroes in the Dallas County delegation to the Texas House of Representatives and that these two were the only two Negroes ever slated by the Dallas Committee for Responsible Government (DCRG), a white-dominated organization that is in effective control of Democratic Party candidate slating in Dallas County.11 That organization, the District Court found, did not need the support of the Negro community to win elections in the county, and it did not therefore exhibit good-faith concern for the political and other needs and aspirations of the Negro community. The court found that as recently as 1970 the DCRG was relying upon 'racial campaign tactics in white precincts to defeat candidates who had the overwhelming support of the black community.' Id., at 727. Based on the evidence before it, the District Court concluded that 'the black community has been effectively excluded from participation in the Democratic primary selection process,' id., at 726, and was therefore generally not permitted to enter into the political process in a reliable and meaningful manner. These findings and conclusions are sufficient to sustain the District Court's judgment with respect to the Dallas multimember district and, on this record, we have no reason to disturb them.



The same is true of the order requiring disestablishment of the multimember district in Bexar County. Consistently with Hernandez v. Texas, 347 U.S. 475, 74 S.Ct. 667, 98 L.Ed. 866 (1954), the District Court considered the Mexican-Americans in Bexar County to be an identifiable class for Fourteenth Amendment purposes and proceeded to inquire whether the impact of the multimember district on this group constituted invidious discrimination. Surveying the historic and present condition of the Bexar County Mexican-American community, which is concentrated for the most part on the west side of the city of San Antonio, the court observed, based upon prior cases and the record before it, that the Bexar community, along with other Mexican-Americans in Texas,12 had long 'suffered from, and continues to suffer from, the results and effects of invidious discrimination and treatment in the fields of education, employment, economics, health, politics and others.' 343 F.Supp., at 728. The bulk of the Mexican-American community in Bexar County occupied the Barrio, an area consisting of about 28 contiguous census tracts in the city of San Antonio. Over 78% of Barrio residents were Mexican-Americans, making up 29% of the county's total population. The Barrio is an area of poor housing; its residents have low income and a high rate of unemployment. The typical Mexican-American suffers a cultural and language barrier13 that makes his participation in community processes extremely difficult, particularly, the court thought, with respect to the political life of Bexar County. '(A) cultural incompatibility . . . conjoined with the poll tax and the most restrictive voter registration procedures in the nation have operated to effectively deny Mexican-Americans access to the political processes in Texas even longer than the Blacks were formally denied access by the white primary.' 343 F.Supp., at 731. The residual impact of this history reflected itself in the fact that Mexican-American voting registration remained very poor in the county and that, only five Mexican-Americans since 1880 have served in the Texas Legislature from Bexar County. Of these, only two were from the Barrio area.14 The District Court also concluded from the evidence that the Bexar County legislative delegation in the House was insufficiently responsive to Mexican-American interests.


Based on the totality of the circumstances, the District Court evolved its ultimate assessment of the multimember district, overlaid, as it was, on the cultural and economic realities of the Mexican-American community in Bexar County and its relationship with the rest of the county. Its judgment was that Bexar County Mexican-Americans 'are effectively removed from the political processes of Bexar (County) in violation of all the Whitcomb standards, whatever their absolute numbers may total in that County.' Id., at 733. Single-member districts were thought required to remedy 'the effects of past and present discrimination against Mexican-Americans,' ibid., and to bring the community into the full stream of political life of the county and State by encouraging their further registration, voting, and other political activities.


The District Court apparently paid due heed to Whitcomb v. Chavis, supra, did not hold that every racial or political group has a constitutional right to be represented in the state legislature, but did, from its own special vantage point, conclude that the multimember district, as designed and operated in Bexar County, invidiously excluded Mexican-Americans from effective participation in political life, specifically in the election of representatives to the Texas House of Representatives. On the record before us, we are not inclined to overturn these findings, representing as they do a blend of history and an intensely local appraisal of the design and impact of the Bexar County multimember district in the light of past and present reality, political and otherwise.


Affirmed in part, reversed in part, and remanded.

   The Redistricting Board's plan embodied the following districts:
                                 Average         Deviation
                                 Multi-          (Under)         Over
 District        Population      member          Over            (Under)
    1            76,285                          1,640           2.2
    2            77,102                          2,457           3.3
    3            78,943                          4,298           5.8
    4            71,928                         (2,717)         (3.6)
    5            75,014                            369            .5
    6            76,051                          1,406           1.9
    7 (3)        221,314         73,771           (874)         (1.2)
    8            74,303                           (342)         ( .5)
    9            76,813                          2,168           2.9
   10            72,410                         (2,235)         (3.0)
   11            73,136                         (1,509)         (2.0)
   12            74,704                             59            .1
   13            75,929                          1,284           1.7
   14            76,597                          1,952           2.6
   15            76,701                          2,056           2.8
   16            74,218                          ( 427)         ( .6)
   17            72,941                         (1,704)         (2.3)
   18            77,159                          2,514           3.4
   19 (2)       150,209          75,104            459            .6
   20            75,592                            947           1.3
   21            74,651                              6            .0
   22            73,311                         (1,334)         (1.8)
   23            75,777                          1,132           1.5
   24            73,966                          ( 679)         ( .9)
   25            75,633                            988           1.3
   26 (18)    1,327,321          73,740          ( 905)         (1.2)
   27            77,788                          3,143           4.2
   28            72,367                         (2,278)         (3.1)
   29            76,505                          1,860           2.5
   30            77,008                          2,363           3.2
   31            75,025                            380            .5
   32 (9)        675,499         75,055            410            .5
   33            73,071                         (1,574)         (2.1)
   34            76,071                          1,426           1.9
   35 (2)       147,553          73,777           (868)         (1.2)
   36            74,633                            (12)         ( .0)
   37 (4)       295,516          73,879           (766)         (1.0)

Page 771

                                 Average         Deviation
                                 Multi-          (Under)         Over
 District        Population      member          Over            (Under)
   38            78,897                          4,252           5.7
   39            77,363                          2,718           3.6
   40            71,597                         (3,048)         (4.1)
   41            73,678                          ( 967)         (1.3)
   42            74,706                             61            .1
   43            74,160                           (485)         ( .6)
   44            75,278                            633            .8
   45            78,090                          3,445           4.6
   46 (11)      826,698          75,154            509            .7
   47            76,319                          1,674           2.2
   48 (3)       220,056          73,352         (1,293)         (1.7)
   49            76,254                          1,609           2.2
   50            74,268                          ( 377)         ( .5)
   51            75,800                          1,155           1.5
   52            76,601                          1,956           2.6
   53            74,499                          ( 146)         ( .2)
   54            77,505                          2,860           3.8
   55            76,947                          2,302           3.1
   56            74,070                          ( 575)         ( .8)
   57            77,211                          2,566           3.4
   58            75,120                            475            .6
   59 (2)       144,995          72,497         (2,148)         (2.9)
   60            75,054                            409            .5
   61            73,356                         (1,289)         (1.7)
   62            72,240                         (2,405)         (3.2)
   63            75,191                            546            .7                                     
   64            74,546                           ( 99)         ( .1)
   65            75,720                          1,075           1.4
   66            72,310                         (2,335)         (3.1)
   67            75,034                            389            .5
   68            74,524                          ( 121)         ( .2)
   69            74,765                            120            .2
   70            77,827                          3,182           4.3
   71            73,711                          ( 934)         (1.3)
   72 (4)       297,770          74,442          ( 203)         ( .3)
   73            74,309                          ( 336)         ( .5)
   74            73,743                          ( 902)         (1.2)
   75 (2)       147,722          73,861          ( 784)         (1.1)
   76            76,083                          1,438           1.9
   77            77,704                          3,059           4.1
   78            71,900                         (2,745)         (3.7)
   79            75,164                            519            .7
   80            75,111                            466            .6
   81            75,674                          1,029           1.4
   82            76,006                          1,361           1.8

Page 772

                                 Average         Deviation
                                 Multi-          (Under)         Over
 District        Population      member          Over            (Under)
   83            75,752                          1,107           1.5
   84            75,634                            989           1.3
   85            71,564                         (3,084)         (4.1)
   86            73,157                         (1,488)         (2.0)
   87            73,045                         (1,600)         (2.1)
   88            75,076                            431            .6
   89            74,206                          ( 439)         ( .6)
   90            74,377                          ( 268)         ( .4)
   91            73,381                         (1,264)         (1.7)
   92            71,908                         (2,737)         (3.7)
   93            72,761                         (1,884)         (2.5)
   94            73,328                         (1,317)         (1.8)
   95            73,825                          ( 820)         (1.1)
   96            72,505                         (2,140)         (2.9)
   97            74,202                          ( 443)         ( .6)
   98            72,380                         (2,265)         (3.0)
   99            74,123                          ( 522)         ( .7)
   100           75,682                          1,037           1.4
   101           75,204                            559            .7

Article III, § 28, of the Texas Constitution provides:

'The Legislature shall, at its first regular session after the publication of each United States decennial census, apportion the state into senatorial and representative districts, agreeable to the provisions of Sections 25, 26, and 26-a of this Article. In the event the Legislature shall at any such first regular session following the publication of a United States decennial census, fail to make such apportionment, same shall be done by the Legislature Redistricting Board of Texas, which is hereby created, and shall be composed of five (5) members, as follows: The Lieutenant Governor, the Speaker of the House of Representatives, the Attorney General, the Comptroller of Public Accounts and the Commissioner of the General Land Office, a majority of whom shall constitute a quorum. Said Board shall assemble in the City of Austin within ninety (90) days after the final adjournment of such regular session. The Board shall, within sixty (60) days after assembling, apportion the state into senatorial and representative districts, or into senatorial or representative districts, as the failure of action of such Legislature may make necessary. Such apportionment shall be in writing and signed by three (3) or more of the members of the Board duly acknowledged as the act and deed of such Board, and, when so executed and filed with the Secretary of State, shall have force and effect of law. Such apportionment shall become effective at the next succeeding statewide general election. The Supreme Court of Texas shall have jurisdiction to compel such Commission (Board) to perform it duties in accordance with the provisions of this section by writ of mandamus or other extraordinary writs conformable to the usages of law. The Legislature shall provide necessary funds for clerical and technical aid and for other expenses incidental to the work of the Board, and the Lieutenant Governor and the Speaker of the House of Representatives shall be entitled to receive per diem and travel expense during the Board's session in the same manner and amount as they would receive while attending a special session of the Legislature. This amendment shall become effective January 1, 1951. As amended Nov. 2, 1948.'


The Court held that the plan violated Art. III, § 26, of the Texas Constitution, which provides:

'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.'


In a separate appeal, we summarily affirmed that portion of the judgment of the District Court upholding the Senate plan. Archer v. Smith, 409 U.S. 808, 93 S.Ct. 62, 34 L.Ed.2d 68 (1972).


28 U.S.C. § 1253 provides:

'Except as otherwise provided by law, any party may appeal to the Supreme Court from an order granting or denying, after notice and hearing, an interlocutory or permanent injunction in any civil action, suit or proceeding required by any Act of Congress to be heard and determined by a district court of three judges.'


See Appendix to opinion of the Court, post, p. 2342.


It may be, although we are not sure, that the District Court would have invalidated the plan statewide because of what it thought was an irrational mixture of multimember and single-member districts. Thus, in questioning the use of single-member districts in Houston but multimember districts in all other urban areas, and remarking that the State had provided neither 'compelling' nor 'rational' explanation for the differing treatment, the District Court merely concluded that this classification 'may be' an independent ground for invalidating the plan. But there are no authorities in this Court for the proposition that the mere mixture of multimember and single-member districts in a single plan, even among urban areas, is invidiously discriminatory, and we construe the remarks not as part of the District Court's declaratory judgment invalidating the state plan but as mere advance advice to the Texas Legislature as to what would or would not be acceptable to the District Court.


The District Court also concluded, contrary to the assertions of certain plaintiffs, that the Senate districting scheme for Bexar County did not 'unconstitutionally dilute the votes of any political faction or party.' 343 F.Supp. 704, 735. The majority of the District Court also concluded that the Senate districting scheme for Harris County did not dilute black votes.


The Court's conclusion that the variations in this case were not justified by a rational state policy would, in any event, require reconsideration and reversal under Mahan v. Howell, 410 U.S. 315, 93 S.Ct. 979, 35 L.Ed.2d 320 (1973). The Texas Constitution, Art. III, § 26, expresses the state policy against cutting county lines wherever possible in forming representative districts. The District Court recognized the policy but, without the benefit of Mahan v. Howell, may have thought the variations too great to be justified by that policy. It perhaps thought also that the policy had not been sufficiently or consistently followed here. But it appears to us that to stay within tolerable population limits it was necessary to cut some county lines and that the State achieved a constitutionally acceptable accommodation between population principles and its policy against cutting county lines in forming representative districts.


See Whitcomb v. Chavis, 403 U.S. 124, 141—148, 91 S.Ct. 1858, 1867—1871, 29 L.Ed.2d 363 (1971), and the cases discussed in n. 22 of that opinion, including Kilgarlin v. Hill, 386 U.S. 120, 87 S.Ct. 820, 17 L.Ed.2d 771 (1967), where we affirmed the District Court's rejection of petitioners' contention that the combination of single-member, multimember, and floterial districts in a single reapportionment plan was 'an unconstitutional 'crazy quilt." Id., at 121, 87 S.Ct. at 821.


There is no requirement that candidates reside in subdistricts of the multimember district. Thus, all candidates may be selected from outside the Negro residential area.


The District Court found that 'it is extremely difficult to secure either a expresentative seat in the Dallas County delegation or the Democratic primary nomination without the endorsement of the Dallas Committee for Responsible Government.' 343 F.Supp., at 726.


Mexican-Americans constituted approximately 20% of the population of the State of Texas.


The District Court found that '(t)he fact that (Mexican-Americans) are reared in a sub-culture in which a dialect of Spanish is the primary language provides permanent impediments to their educational and vocational advancement and creates other traumatic problems.' 343 F.Supp., at 730.


Two other residents of the Barrio, a Negro and an Anglo-American, have also served in the Texas Legislature.

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