WHITE v. REGESTER
Legal provision: Equal Protection
Argument of Leon Jaworski
Chief Justice Warren E. Burger: -- Regester.
Mr. Jaworski, you may proceed whenever you are ready.
Mr. Leon Jaworski: Mr. Chief justice and may it please the Court.
As was true in the case argued just before, that's one the Attorney General of the Texas, the honorable John L. Hill has participated in the preparation of this appeal.
He has the staff with us, and in order to avoid the providing of arguments, he has asked that I present the argument on behalf of the state.
I think it perhaps a more accurate description of what this case really involves could hardly be made and the characterization given it by the Central Judge who stated that this was an instance of the majority entering fields of the purely state and local management.
Now under the provisions of Article 3, Section 28 of the Constitution of Texas, a Legislative Redistricting Board has assembled, if the legislature fails to redistrict the state after its first regular session following the publication of each United States decennial census.
So the legislature convened in January 1971, was under constitutional mandate, to provide this redistricting.
Our Texas has a bicameral legislature, and because the legislature had failed to redistrict in both houses, of course, any effort at redistricting failed and as a consequence, the redistricting board was assembled and considered the matter of providing a plan of redistricting the senate, and also a plan of redistricting the lower house.
Now, this board consists as constituted by several elected officials, state officials serving on it.
There is the Lieutenant Governor, the Speaker of the House, the Attorney General, the Comptroller of Public Accounts, and the Commissioner of the General Land Office.
Now three or more of these members of the redistricting board may assign whatever plan they agree upon, and it certify to the Secretary of State, and then it becomes an effective plan.
Now, I might say that the house plan is the only one.
The plan relating to the representative is the only plan that's involved on this appeal.
Perhaps, brief reference should be made to the commencement of those litigation after they planned to file, a suit was instituted in Houston, Texas by Curtis Graves, a black state representative from Harris County that?s Huston in which he contended that there was unconstitutional apportionment of the senatorial districts because of an alleged racial gerrymandering.
His point being that there should have been district carved out in which 80% are blacks and that because one was not carved out in that matter that it was unconstitutional.
And then next came, a number of others civil suits that were filled challenging the boards plan for the house of representatives in different parts of the state with different groups, filing these suits, and interventions were also filled on behalf of a number of groups and there was a consolidation of all of these actions and they were heard before the Three-Judge Court.
Now, the court ordered first that unless the legislature of Texas on or before July of the 1, 1973, adopted a plan to reapportion the legislative districts in accordance with the constitutional guideline set out in the court's opinion that the Court will then proceed to reapportion the state itself, and then the Court further ordered that the counties of Dallas, that is where the city of Dallas is and the County of Bexar that's where San Antonio is that both of these, the reapportioned into single-member representative districts in conformance with a plan of reapportionment that the court provided.
Justice Harry A. Blackmun: Mr. Jaworski, was there injunctive relief granted?
Mr. Leon Jaworski: Yes sir, an injunctive relief, excuse me sir.
The injunctive relief consisted all of the state being restrained from proceeding.
The elections could not be held in accordance with the plan that had been filed by the redistricting Board.
A judge would say, state it very frankly that he'll wholeheartedly disagree with his colleagues in declaring the state plan unconstitutional, saying that he could think of nothing that illustrated more vividly the chaos that existed in the area of restructuring the political districts of a state as was attempted to be done and ordered by the court in this particular instance.
It'd be done by July 1, 1973 or else of course the plan had to be adopted. Of course the Mahan versus Howell case is very significant.
A number of the courts' pronouncements in that case are quite applicable here.
Perhaps I should point out that what the majority did in our case was relied on the Kirkpatrick versus Preisler case and repeatedly refrying to it also on Wells versus Rockefeller, both which is we know are congressional redistricting cases.
Chief Justice Warren E. Burger: Mr. Jaworski, has the court has said at least once and perhaps more often that a good deal more flexibility is permitted in state legislature then in congressional districts?
Mr. Leon Jaworski: That's what this Court of course said in the Mahan and Howell case.
Chief Justice Warren E. Burger: Well, we have said it before that?
Mr. Leon Jaworski: And also said it, yes sir in the Reynolds --
Chief Justice Warren E. Burger: Reynolds against Sims.
Mr. Leon Jaworski: Right sir, but it was quite well emphasized in a case that was decided or relevant in [Voice Overlap]
Chief Justice Warren E. Burger: So that there was nothing new in Mahan against Howell in that respect?
Mr. Leon Jaworski: No, I do not think so.
I think it did some reemphasizing and perhaps having come so recently or something that we might talk about little more, but let me just pass counsel, but certainly there was nothing new in it.
The interesting thing is that Judge Wood who so strongly dissented in this case from the actual majority, recognized that difference in his dissenting opinion.
And he recognized the difference between congressional districts and legislative districts, pointing to the cases, pointing to Reynolds versus Sims.
Now what the majority did here was required, first a much stricter standard of state legislative reapportionment, permissible deviation and had been approved theretofore.
Actually in this case the total variation of 9.9% under the board was on question thus far as the majority opinion was concerned.
I notice wherein in one of the briefs some question was raised whether that might be entirely accurate, but there had been nothing before the lower court raised any question beyond that of it being assumed and considered that the total variation was only 9.9%.
Now, this was under the board's redistricting plan.
I should point out that actually the average variation was only 1.82%.
Now one of the problems in this case, a matter on which so very much stress was laid by majority the court which in our view led the court exactly to nothing as far as the end result was concerned, where the procedural (Inaudible) is simply followed by this board.
There were several tings that took place.
Of course these men, all of them had to depend upon staff assistance because they had other duties to perform as state officials and they did have considerable staff assistance.
Perhaps the one official who participated more than any one else in this particular matter was the Attorney General himself who counseled with the redistricting board constantly on what should be done and also letting him know on the what was permissibly legal as he interpreted the decisions.
But the Court has gone to considerable extent in talking about, not the end results so much as these procedures that was employed in finding fault with them, and finding fault with the particular assistance that had been rendered by members of the staff and such as that forgetting it seems to me at least for a moment that even judges need the assistance or at least utilize the assistance of law clerks at times.
But, also it is very clear, there was a complete misapprehension of Whitcomb versus Chavis actually said.
What the Court here did was not only indicated, went into the matter of redistricting the entire state also found fault with what had been specifically insofar as single and multi-member districts were concerned and the two counties that I mentioned.
What the court failed to do as we see it was to employ the equal protection test and that a state must make an honest and a good-faith effort to construct the districts as nearly of equal population as is practicable and there is nothing here to indicate in this record that this good-faith effort was not made.
And let me regress for a moment if I may, because I have noted that there were some references made in some of the briefs to some alleged evidence in this case that frankly is no evidence.
What happened at the outset was that the Chief Judge of this Three-Judge Court, the presiding judge and announced that everything that was offered by anyone would be admitted in evidence.
He didn't want us to even make any objections.
If the matter was conjectural, if it was hearsay or whatever the proper objection may have been it went into the record anyway and the announcement being that the court would at the end consider those things that were admissible on those matters that were not admissible, but there were no rulings ever made by the court and as a consequence the floodgates were opened and everybody led into thinking that you want to bring before the court just introduced it into evidence and then proceed.
We don't know actually what the court did consider and what it didn't consider speaking of the majority.
But, we do know that there were some matters tendered here that were not admissible in evidence and that the record presently is cluttered with some of those matters.
I mention that simply because what should really be a relatively a easy case to discuss with the court and the issues being well defined as we see it, is complicated a little because of some of the references that have been made in some of the briefs to what the evidence purportedly showed.
Now, the court, the majority, apparently everywhere just placed the burden upon the state.
It may, you know to show that there was no inequality of any kind, that there was no discrimination of any kind, that there wasn't any type of dilution and had us carry the burden throughout the case.
So, far as I tell we discharged the burden although it is questionable as to whether we had the burden in all of these instances.
Now Texas is a large state as is known, we will not engage in talking about how large it is, but it's not only a large one, but it is also has a shape and it does not render it very easily susceptible to a division among districts.
So, some problem is going to be encountered, but we actually -- what was necessary here were -- well, let me say first the ideal district was about 74,000, seventy four thousand plus.
There were a 150 representatives to be elected to the lower house and a large number of districts had to be carved out in addition to it.
This particular board was confronted with a decision -- first with the provision of the Constitution of our state which had been interpreted in the case of Craddick versus Smith which we cite in our brief and under that county lines could not be crossed, unless it were absolutely necessary to do it in order to make up this district of 74,000, the ideal.
It also required that it go to a contagious county if it were necessary to do that.
Now, Texas as we know and as the Court doubtless knows, not only has this large metropolitan cities, but it has rural areas that has large areas that are very sparsely settled.
Now actually there was no instance in which our constitutional requirements and the integrity that was required for this board to follow was not carefully embraced in each instance with the possible exception, well would be exception of Red River County and there we had a real problem up in the part that adjoins Arkansas with the Red River and between the two of them had a problem as to Buren County.
So, what was actually done is that in that one instance the county line, it was crossed.
Now, the total population incidentally as the Court probably has already gathered from what I had said is according to the last census about eleven million two hundred thousand.
The senatorial district is not involved here, but maybe of interest of the Court is of approximately 360,000 to 368,000.
Now, if we were to draw comparisons here and I do this only because a case has just been decided by this Court and to show a similarity of the situations if I may reveal those in the Virginia, there was a total variation of 16.4 under what the board that here, the total variation of 9.9 and average variation in the Mahan case of 3.89 in Texas of 1.82.
Within the 4% there were 35 of the districts in Virginia.
In Texas we had 93 under this Board's plan.
Those that exceeded 6% were 9 In Virginia, there were none under this Board's plan in Texas and only two exceeded the 5%.
I indicated a few moments ago that it was our view that what Whitcomb v. Chavis had been misinterpreted and we do feel that that is definitely in the case.
I want to mention one effort that was made in particular, that was injunction in the case the fact that perhaps one difference was that in Indiana particular the Marion County which was involved in the Whitcomb v. Chavis case that there was no racial history and a suggestion was made the Texas had a racial history.
Here is no one that would deny that Texas has true what so many of the states has a racial legacy.
It is untrue that there is any showing whatever that there has been any such happenings, any sort of racial violation with respect to the electoral process in our state.
The last one according to testimony in this case undisputed is coming from a witness who appeared on behalf of the appellees was back in 1956.
So that this is really not in the case despite the fact the witness was put on the stand to testify that or undertake to testify and this is one of the particular matters to which I refer that has made it somewhat difficult to briefly argue this case because the court admitted everything.
Man who opposed does an expert and undertook to say that there was a difference as far as racial history in Indianapolis and Marion County was concerned and in Texas.
And then it turned out when I asked them the question on cross examination that he had never even been to Indiana much less Indianapolis had not made any type of study of the matter and as I said in our brief to show what we had to contend with.
I should say that there is a stipulation in the record in order to lay at rest completely the matter of all having been free to engage in our process of registration as well as holding, there is a stipulation that there has been and none of that in our state for a number of years and of course the evidence shows nothing of the kind.
Now, we get into another phase that I want to discuss with the court if I may and that has what happened with respect to Harris County, Houston under the boards plan being divided into single member districts and what happened and so far as Dallas -- it is Dallas County and San Antonio Bear County being multimember districts.
Now there of course is some difference one could say Huston a very large city, a million seven hundred thousand either fifth or sixth largest city of the nation at the present time.
Dallas, a million three, Dallas county.
San Antonio, even a much smaller city than that, traditionally Dallas had multi member districts same was true of Bexar County.
And as far as Huston is concerned Harris county the legislators themselves, the delegation from their more or less favored single member districts.
So on the surface you might say why does the Harris County have single member districts and why does Dallas and Bexar County have multiple member districts?
Really it was done without to being the slightest intimation on the record that in the individual group sacrificed any constitutional rights by virtue of it, it was done largely because the board had before it witnesses who thought that this was a sensible thing to do in Harris County had witnesses before that thought it was a sensible thing to do in Dallas and Bexar County what was done in those.
Now our position is they tops in, the showing of something that shows that either voting strength is being diluted or that something has been done that has occasioned the transpiration of a constitutional right that certainly much has been made of nothing.
Justice Potter Stewart: You say the reason Mr. Jaworski was - historically this is always this is been--
Mr. Leon Jaworski: No sir this is -- I didn't intend to say that sir, I didn't intend to say that that was true as far as Dallas was concerned and I believe Bexar County because they have -- but it was not true as far as Harris County is concern. Harris County had some election in past they have floatorial representative or even.
I said what really brought it on more than anything else is a delegation should come from these particular areas and the board in shifting what people wanted but their representative said they want, made these provisions of single member districts for Huston, for Harris County multimember for Dallas and for Bexar County.
Justice Potter Stewart: And Dallas and Bexar is directly have had multi member?
Mr. Leon Jaworski: Dallas and Bexar historically have had multi member.
Justice Potter Stewart: And Huston has also had multimember plus (voice overlap)
Mr. Leon Jaworski: Has had but also some mixture Mr. Justice Stewart there have been mixtures of floatorial representative and such as that are whole voters.
Justice Potter Stewart: Now wasn?t there a state policy expressed somewhere earlier that should have, -- that the state would have multimember until a number got to 15 is not somewhere here written.
Mr. Leon Jaworski: That may have been in the history of --
Justice Potter Stewart: And thereafter you would have.
Mr. Leon Jaworski: I do not think that this was a part of what was before the board, I do want to make mention of this.
Now you take Bexar County for example, this is as County of San Antonio where a large segment of the population is Mexican American, actually 50% of them are.
You don't have a minority there of Mexican Americans toll, the record shows that if they undertook to exercise the election process they are right to vote, they are register in vote, there would not be any problem.
The problem is been that less than 30% of more approximately 30% of them seek to exercise that privilege.
This is where your trouble has been as far as Bexar County is concerned.
I should make mention of this too because it?s in the record, no matter that probably will be talked about.
Dallas County has a strong political party; it?s a party that has had on it slate, blacks as well as whites.
Here the record shows that they were contemplating three blacks on their slate following this active redistricting, actually that they have had at different levels are just even include in the legislative level black on the slate before, that is true that it is as strong political organization it is true that a black placed on that slate probably would be elected is also true when a white placed on that slate would be elected.
It is also true that if this organization opposed a white that he would hard time been elected, just as much as if the organization opposed a black.
The while routed in history as I answered to Mr. Justice Stewart's question the matter of multimember districts has never been used in Dallas and direct this completely silent, there is nothing to show that the multimember district arrangement for Dallas County was used or conceived either to dilute or cancel the voting strength of blacks and I think that this distinguishes it from some other and inferences and pronouncements that had been made by this court in other cases and I believe with that Mr. Chief Justice and may I please court.
I will wait with the concluding argument until after counsel for the (Inaudible).
Chief Justice Warren E. Burger: Very well Mr. Jaworski.
Argument of David R. Richards
Mr. David R. Richards: May it please the court Mr. Chief Justice.
We -- let me open with the brief luminary we are dividing our 45 minutes between three counsel, I would attempt to open to discuss the what we consider to be the underlying irrationality of the state plan and the dilution of the Negroes voter vote in Dallas County.
Mr. Idar will follow discussing the underlying distinctions we think on this record between Whitcomb v. Chavis and the impact of the at-large scheme on the Mexican American minority of Bexar County.
Mr. Gee on behalf of State Republican party will follow to discuss what everything we forget including jurisdiction and I think the inordinate costs of election campaigns in the County which would suggestive.
As a preliminary matter the order below is a first, it?s a complicated four part, four law suits consolidating with various contentions I guess the order below is of two parts.
There is a declaratory judgment which does feed to the statewide apportionment plan but that was not effectuated by injunction but rather it was left to be operative only in July of this year and the event the legislature did not address themselves to it.
There was injunctive relief it was narrow.
It effected only two Counties and the state of Texas those Counties of Dallas and Bexar their single member district plans were implemented by the court unanimously Judge Wood who have did descent from the other portions for the court's opinion below agreed that this was so egregious in Dallas and Bexar County that implementation of immediate single member districts was in order.
So we think the jurisdictional issue is in the case Mr. Gee will address himself to it.
The route problem that confronted the Texas legislature when it or readily redistricting board when it began to consider the reapportionment to the Texas legislature was what to do with the urban counties.
The testimony is clear that this was in words of one witness enraging controversy across state of Texas.
Hearings were held by the legislative redistricting board on two occasions concerning what was to be done all of the witnesses who appeared were concerned only with this single issue.
Urban counties of Dallas, Bexar and Harris whether to be divided into individual districts or something last then at large are worthy to left at large.
Now the board and what is remains and orderly unarticulated decisions decided to divide Harris county in the 23 individual member districts and to leave and Dallas and Bexar county running at large Dallas has become what we all saying recognized to be the largest legislative districts in the nations history.
18 legislators elected from at-large of one million four hundred thousand people.
No requirement of geographic distribution they could all come from one city block with in the city of Dallas.
Now the peculiarity here quite granted there was a history of at-large representation in the urban cities of Texas.
It was true of all the cities of Texas until 1965 when the Texas legislature did for the first time a portion Harris County, Huston into something less than the County wide districts at that time in Kilgarlin V. Martin the State of Texas explained to the Federal Courts that a policy existed and that policy was at anytime a County became a one million in size, or more than 15 legislators, it became simply unworkable to run at-large and that in the future, then anytime a county became that size, that county itself would be a portion down in something less than at-large representation.
Well, then Dallas County hit a million for this year, larger than Harris was an 65.
That policy went by the board without even whisper on the part of the board members.
Of this Legislative Redistricting Board, three of them had been defendants in the Kilgarlin case who presumably had the sparse of that explanation for the -- at that time for the apportionment of Harris County.
At no time, although now in their reply brief, the court -- the appellant say that that really never was a policy.
They certainly never told the court that, the court's opinion it was a policy.
When the appeal papers were filed here, there's no indication of any disclaimer of that policy when the Kilgarlin v. Martin was considered here as Kilgarlin v. Hill.
The only reason that appears ever for this rather curious treatment of the two counties was in the jurisdictional statement filed by the appellants and they suggested there that the reason they left Dallas County at-large was the dominant democratic organization Dallas County preferred to take when they will take all election.
They have not sponsored that as their reason in their subsequent briefs.
We talked about the board procedures in our briefs and we did deal with it, not because we want to go behind the board or not because they want to indite what they did because they did it on a sloppy manner but because it points to no rational state policy that underlies this very crucial decision in terms of how people are going to be elected in a county, the size of Dallas. 500,000 registered voters in that county to which any person who seeks to be elected to the legislature must somehow communicate.
The last general primary election in Dallas had 68 races on it, 3+ congressional seats, 3+ state senate seats and a submerged 15 member legislative delegation.
Results of this rather whims or goal if you will, if not penal decision with respect to Dallas of course is to isolate the black minority of that city which has suffered a traditional isolation that this record speaks to quite strongly and just simply and intolerable bind, there is no relief.
Texas remains a one-party state, this is not a situation such as Indiana in which conceivably the explanation for the under-representation of the ghetto was winning and losing elections in November.
What happens in Texas is, you win or lose in a Democratic Primary, the Democratic Primary is a majority place system that means and order to obtain the nomination, you must -- if you are a black candidate, ultimately be pitted vis-a-v a white candidate, in a county in which racial segregation, discrimination has still been the order of the day, granted it diminishes, but as this record establishes, it diminishes rather slowly.
What this record further shows is that the dominant political organization of that county, the DCRG, when circumstances require and their candidates are threatened by a black candidate or by a candidate that has the support of the Negro minority, they simply try out the old game of race in order to win.
In 1970, two candidates made it into the run-off, Democratic Primary run-off against the DCRG candidates, the DCRG being a private sort of modern day chambered association, of course we are concerned.
In that run-off, the DCRG mailed to some -- the white voters of Dallas County, literature saying ?Black voting tactics will take place in the South Dallas, the Negro area of Dallas.
If you don't get out to propose him vote,? and it said the philosophy of these candidates is best described by being close.
One of the candidates was white, in the previous year, he had sent out a mailing for a biracial voter registration activity.
It was this philosophy that the DCRG, which runs Dallas County politics concluded, was the most effective way to appeal to the voters of Dallas County and it was quite effective.
The other two they used, they simply used a picture of the black candidate, contrasted with his white opponent.
It was quite effective as I say in the black precinct of Dallas, these candidates, white and black got 90% and 87% of the vote.
They were obliterated in the white precincts and were defeated very sizably.
Now, that's the reality, the political reality this record establishes, as we say if the black minority of Dallas County establishes -- it fostered as we see it by other factors.
The massive size of the legislative district is such, there is simply no way that a candidate can address himself to that electoral without enormous finance, the record rangers estimates to run a state legislative rates from anywhere from $60,000 to a $125,000.
This means that only if a candidate has that kind of finance, could he ever even expect to receive individualized consideration in the rate as a legislative candidate.
The affect of it has been to really prevent the emergence of a two-party system in Texas.
The record, although it maybe a little shocking, but that's what the record is.
But the Republican Party in Dallas has been unable and unwilling to mount serious legislative races in November, simply because the financing is beyond their means.
So, what we have is again, a one-party system, terminations being made in the Democratic Primary and a majority place system and a primary that continues to be dominated by a white alagarky that has not permitted black participation.
Unknown Speaker: Let?s assume for the moment that the validity of the entire state plan is here, assuming the jurisdiction of the issue, the District Court upset the entire plan based on three things.
One, variation --
Mr. David R. Richards: Deviation, just straight deviation.
Unknown Speaker: Now, did that variation on the numbers reach, Harris, Dallas and Bexar Counties -- what is the motive when the district issue had not been here?
Mr. David R. Richards: The deviation of the two major districts, Harris and Baxar was not sinful to the court's decision on deviation if I make myself clear.
The way the deviation was calculated in those two counties was simply the binding number of legislators --
Unknown Speaker: Tell me about some parts of the plan were invalidated solely on deviation?
Mr. David R. Richards: Some parts were, but not those parts dealing with the multimember, single-member district issue.
Some parts of the plan, I don't think is purely deviation.
I think -- if I read the court's opinion correctly, what we have is the state's sponsor and explanation, a county line explanation is being the justifications of deviation, but once you go behind that explanation and look to the plan, you think it just don't make sense.
Unknown Speaker: I understand, but now on the multimember district rational, that was because Harris was divided and the other metropolitan areas were or were not?
Mr. David R. Richards: Yes, it was, indeed there are two strings to that I suppose, the irrational that why could Harris leave Dallas and Bexar at-large with no appropriate reason.
Two, the effect to that is the leaving of those two at-large was to minimize, dilute or press the minority voting.
Those two --
Unknown Speaker: But, there are other metropolitan areas that had multimember districts and they didn't touch those.
Mr. David R. Richards: -- and that's I suppose a shortcoming on the part of plaintiffs.
This case was tried in --
Unknown Speaker: No, but that was because there wasn't any finding with respect to racial --
Mr. David R. Richards: There was no evidence offered a findings made with respect to racial impact as regards the other multimember districts in the state and the reason was and it is in record of this case was put together in trial number, compressed period of time and we stated very frankly to the court, we are not conceding are like legitimacy of the others, but we simply could not muster the proof in a time frame in which will operate.
Unknown Speaker: Other than the racial item, the District Court would have contemplated handling all metropolitan areas the same one way or another, absolute racial?
Mr. David R. Richards: Well, they didn't do that and they didn't -- I am not sure.
Unknown Speaker: But conveniently they would have --
Mr. David R. Richards: That may or may not be a fair construction of the opinion.
I suppose they would have -- no, I suppose they truly would have any of the evidence came forward in terms of racial or ethic discrimination, quite clearly yes, they would have considered.
Whether they would have in absence of such evidence or findings implemented single-member districts, I can't --
Unknown Speaker: Now that -- left existing, what they said wasn't rational.
Mr. David R. Richards: Well, right and we might have believed -- it all can, I suppose we would be back to the court saying, you want to cut the rest of them all, I know we are not dishonest with the court, but they didn't do it, the contentions weren't there and how they would react if and when we have to, we were back in court making that contention I can't tell you.
But there is -- at least let me say, that there is a difference in my mind between a multimember district that let's -- of a county of a 150,000 elects in two legislators and a multimember district of a million for electing 18, simply in the capacity to isolate the minority then this inertia alone is a force it seems to me when it comes that size.
Justice William H. Rehnquist: Would you refresh my recollection, Mr. Richards as to how many representatives Harris had, how many --
Mr. David R. Richards: 23.
Justice William H. Rehnquist: Harris had 23, Bexar had how many?
Mr. David R. Richards: 11, Dallas, 18.
Justice William H. Rehnquist: Dallas, 18.
Mr. David R. Richards: And one of the ideas, I guess in the plan was that in Bexar County, one of those candidates may have at-large and presumably all operating pursuant to state policy of preserving county lands, probably the Board for some reason cut a piece out of Bexar County, attached it to a rural district for no reason that this record will explain, it were from the deviation as a matter of fact that would have been resulted, had have been left intact and I suppose it was whimsical things of this nature which caused the -- capricious, I suppose is a better word, caused I mean the Lower Court defined that there were simply no rational purpose underlying this plan, clearly no rational purpose as far as the at-large representation in the urban counties or stated the other way, the at-large representation in the urban counties, in no way fostered a state purpose that was urban county lands, indeed of the eleven counties in which they were left in large, eight of them were actually cut their county lands and portions of the county removed and allocated to other districts.
Chief Justice Warren E. Burger: Something you said, it comes me to ask this question and I'll try not to take too much time for that.
Suppose in a large county like Harris, it was demonstrable that there was no racial problem at all, but that republicans were concentrated in certain areas and democrats in the larger areas and that the democrats in an at-large situation could dominated in definitely, electing all of their party members, do you think that gives rise to a constitutional problem?
Mr. David R. Richards: The court below did not think so, refuse to find some although that intension was right.
Chief Justice Warren E. Burger: Is this part ever indicated that there is a constitutional issue in that kind of situation?
Mr. David R. Richards: Well, there is an dictum in at least certain opinions of this court suggesting that if the plan diluted as I have called racial or political minorities that it might be inbounded on the protection policies, if not so held as I understand.
Chief Justice Warren E. Burger: That hasn't been held.
Suppose the Catholics for example were concentrated in one area and non-Catholics of all kinds in another.
Would you say that gives rise to a constitutional problem?
Mr. David R. Richards: If there were historical exclusions in Catholics from a franchise and from every aspect of life in that committee I would say ? I would just like so.
Chief Justice Warren E. Burger: I am not assuming any of that, just arguing them --
Mr. David R. Richards: We are not here arguing that, we are not here arguing, I don?t mean suggest that we are that only blacks can represent blacks and only Catholics can represent Catholics or that there is an entitlement to a representation of a sort of vertical of somewhat of my like kind.
It would simply arguing that this system on this record establishes the kind of dilution that this court said it would invalidate when it's solved.
Chief Justice Warren E. Burger: Some of this religious hypothesis that I gave you.
Mr. David R. Richards: Conceivably it provides the dignity of the constitutional --
Chief Justice Warren E. Burger: I assume it's a reality that people who are Catholics tend to ? want to live in areas where there are Catholic Churches or if they are none to build them and so, it's not surprising if they happen to be concentrated, is it?
Mr. David R. Richards: I don?t think such concentrations certainly do exist.
Chief Justice Warren E. Burger: But you have seen all constitutional --
Mr. David R. Richards: Well, I guess I have not seen -- I have seen none and I simply see that I don't have to carry that burden, I think in this period.
Chief Justice Warren E. Burger: No, but I am not trying to see how far this problem of dealing with abstract minorities is carried?
Mr. David R. Richards: Well, because we are dealing -- at least we feel we are dealing with a precise minority that comes in a context that we think demonstrates how it can be submerged --
Chief Justice Warren E. Burger: The court has used the term Identifiable Minority.
Mr. David R. Richards: Yes, and I think -- and Texas identified that minority by statutes, by its practices and policies for a number of years and it's just finally beginning to see so that if -- having identify the minority, I suppose they are stuck with it.
Justice Thurgood Marshall: In the Dallas County, has there been any racial discrimination in voting of any kind in Dallas County since April 14, 1944?
Mr. David R. Richards: If you mean Your Honor -- well, if you mean, the record which shows that in 1956 there is testimony that black voters presented themselves and propose in a Democratic Primary in Dallas until they could not vote there.
I would not suggest to you however that that has been the case.
I think the case has been -- the poll tax, the case has been the substitution for poll tax, the angle registration system.
I think the record will show other factors which in fact did detour black voting.
Now, I think the poll tax being the most clearest -- the clearest one in that case.
But physical intimidation, we did not argue the physical intimidation of black voters.
Justice Thurgood Marshall: Well, then they have been voting since April 14, 1944.
Mr. David R. Richards: Mr. Justice Marshall, I am simply not informed that it has been -- I am not informed.
I am sorry sir, but this bring out --
Justice Thurgood Marshall: I am just trying to get the statements you said in an atmosphere there where there had been racial discrimination in voting and you put Dallas in that category.
Mr. David R. Richards: I am sorry, if I said it in that way, I guess I meant -- in voting I don't know, I meant racial discrimination, blacks in Dallas were segregated by law, well into the night, the decade or the 60s or the 50s, and by practicing of the 60s.
I did not mean to say to you that --
Justice Thurgood Marshall: I don't remember correctly that Dallas segregation ordinance was thrown out in the 1940.
Mr. David R. Richards: I participated in stand in Dallas in the mid 1960s.
Justice Thurgood Marshall: (Inaudible) ordinance
Mr. David R. Richards: No, I guess the policy, but we still had segregation in the jail, we had segregation in the Dallas County jail as recently as three or four years ago.
The record will show there's still black and white drinking fountains in the county courthouse up until four years ago.
Justice Thurgood Marshall: Well, we might apply this rule in every state and every segregated jails.
Mr. David R. Richards: Well, thank you.
Chief Justice Warren E. Burger: Mr. Idar.
Argument of Ed Idar, Jr.
Mr. Ed Idar, Jr.: Mr. Chief Justice, may it please the court.
Pursuing the matter that has just been raised I think that for our part we would like to stress that we conceive the right to vote has going far beyond nearly casting a ballot, marking it in custom and this court has so held and our position here primarily as to Bexar County is that because of certain statutes in Texas.
Our minority in Bexar County has been totally submerged.
Now, I would like to point out that the lower court found that race is still an important in Bexar County and because of it Mexican Americans were frozen into permanent political minorities destined for constant defeat of the hands of the controlling political majority.
Now, I will emphasize that this is a finding made by three judges who have spent their entire life in Texas, one of them being Judge Wood from San Antonio.
Now, I would like to stress on the multimember district issue that as far as a Legislative Redistricting Board where he initiated his work on the House Redistricting Plan, it expressly had before it certain cautionary language on the part of the Texas Supreme Court in the case of Mauzy v.
The Legislative Redistricting Board which is the one mandamus the board to redistrict the house.
The Texas Supreme Court who presumably is familiar with the democracy of our state, of our municipalities, our metropolitan areas of the distribution and concentration of the minority groups expressly stated as follows.
In exercising its discretions as to whether to create multimember districts within a single county, we must assume that the board will give careful consideration to the question of whether or not the creation of any particular multimember district would result in discrimination by minimizing the voting strength of any political or racial elements of the voting population.
Now, I would like to point out to this court that it is on the record that from 1880 to 1970, there were only five Mexican Americans have been elected to the Texas house, one of them in 1890, four of them since 1961.
I would further stress that between 1960 and 1970 and this is part of the record and it is un-controverted.
Out of a 133 races in the Democratic Party primaries, only 22 were entered by Mexican Americans and of course as I already have stated, only four were actually elected during that period.
Now, from the particular area where the Mexican Americans concentrated in San Antonio, which is on the record as 28 contiguous census track area, only four candidates win from that area between 1960 and 1970, two Mexican Americans, one Negro, one Anglo-American.
Now, I can not overstress what Mr. Richards touched upon and that is the size of the multimember districts that we are dealing with.
Bexar County 830000 and 460000 population the city of San Antonio 654000 is larger than seventeen of it a 132 countries in the United Nations.
It is larger than the combine population of four of those countries.
It is larger than 11 states but elect 22 United States senators.
It has an land area larger than the state of Rhode Island.
Now 1246 squared miles, it is larger both in land area and population than the State of Columbia.
Four senators are elected from States that have a total population less than Bexar County.
Unknown Speaker: And the Bexar, you could either -- you will touch upon the suggestion made by your opposition that the one of the reasons is the Mexican Americans don't turn out to vote.
Mr. Ed Idar, Jr.: They don't vote.
I think we have to ? that?s where the racial history of our state counseling to play Your Honor and I would like to stress up.
Since 1966 through 1972 we have had 6 Federal Court decisions dealing with the political, with the electoral system in Texas, five of those between 1970 and 1972.
The poll tax was set aside in 1966 the excessive filing fee requirement in 1970, the six months residency requirement 1972.
The over increased cities and small town in South Texas and local city charter provision requiring property ownership for election to city office was set aside by a single judge or District Court.
In the case Archer V. Smith in 1971 the certain provisions in the Texas electoral court denying the right to illiterate voters to have an election judge help to mark the ballot was set aside on the grounds that that seem right was not denied to blind or physically disable olds.
Now when I touch upon a literacy in that case, I must point out that persons may be illiterate in English or not necessarily illiterate persons because they do speak and read Spanish and they do follow Spanish radio and television and they do have the means at hand to form political judgments.
We have had in addition to that, since 1971 three decisions having to do with Jury service, the denial of opportunity to serve on juries and we have seeks decisions is 1970 dealing with education, one of them is now before this court which is one involving the Rodriguez case in the Independent School District in San Antonio on school finance.
So, in reply to that question why don't we vote, we need to assess a situation of the Mexican American actually has developed in the history of this country.
A slate 1972 we cannot wipe all of this hindrances and then overnight inspect the injured group to be able to compete on an equal fooding with those people who have never been hindered and when you throw them into the type of multimember district county that we have where they have to compete in an area of over a thousand square miles or they have to appeal to an electoral that is close to a million voter where they have to raise a finances and I am not minimizing the fact that the record in our brief make some profuse references to economic, educational, in any number 4 to 5, that has be adverse to the Mexican American population.
We cannot equate numbers simply with the denial of right. I think in minority constitutionally those have define purely on the basis of numbers.
So my position is, our position is that because of these hindrances true, we don't hold to the extent that other people (Inaudible) also incidentally I forgot to mention that I know the part of the record is that the Anglo American population in Bexar County we vote on a ration of 6:1 to 9:1 against Mexican American candidates.
I might further pointing out that I said result for the single member district that were in post on the Counties where order for the county by the Trail Court.
At the time the case was tried out of 10 representatives on Bexar County to the State legislature.
Nine were Anglo-American and none was black or Negro and none was republican and only one was mixed Mexican and Anglo-American parent.
Today as a result of last year selections there were four Mexican-Americans, one Negro and two Republicans in Dallas County.
Today we have three --
Justice Byron R. White: And (Inaudible).
Mr. Ed Idar, Jr.: Of course the Mexican-Americans and the black or Negro over them or blacks.
Justice Byron R. White: What are the common issues or that?s all the evidences, what do you think?
Mr. Ed Idar, Jr.: That is eleven.
That would make a democrats I am sorry, 10 democrats because there is only two republicans were elected --
Justice Byron R. White: Yes but there were four Mexican-Americans?
Mr. Ed Idar, Jr.: One black or Negro and two Republicans.
Justice Byron R. White: So it is five out of the eleven where Mexican-Americans were Negro?
Mr. Ed Idar, Jr.: Yes, yes Your Honor.
Justice Byron R. White: And is that what is you would expect out of single member district out there?
Mr. Ed Idar, Jr.: Not necessarily because we have recognized that a single member district is no millennium, its not (Inaudible).
Justice Byron R. White: I suppose that you probably had a pure and maximal head count majority in other single-member districts?
Mr. Ed Idar, Jr.: In some of them yes, Your Honor.
In other --
Justice Byron R. White: Again your, your failure directed to both (Inaudible).
Mr. Ed Idar, Jr.: Being the once or no Mexican-Americans were elected, I don't know that we had any Mexican-Americans running in any of those other races.
I do not believe it so Your Honor; I think they were mostly concentrated in those districts where they felt they had an opportunity whether or not they had a substantial majority of the vote.
What our argument here is not that we feel entitled to representation as such.
Our argument is that we are entitled to participate to an opportunity to compete.
Not to be counted out by the cost of running an election, the cost of campaigning, the area in which we have to campaign by the attitude of the people or the opposition.
I might stress a fact that as far as Mexican-American is concerned, there is no need to circulate campaign literature showing what it looks like because his name makes it put a self-evidence on the ballot and you don?t want to vote for Mexican-American, all you have to do is look the name on the ballot and you do not have to read resort to overt methods of racial methods say for hiding black as your opponent.
I would like to make preference to one stipulation that was referred to this court and that is that the stipulation is on record that nobody has been denied the right to register and vote.
I have already stressed that we feel the right to vote goes far beyond just to right to register and vote, but I would like to stress this stipulation relates only to the name plaintiffs in the law suit.
Now we are not making and we are not hinging our case on denial of the right to register and vote.
We are hinging it on the fact that we have been submerged totally in this tremendous multimember district.
I wanted to stress the distinction between this district and Virginia in the Mahan case.
Fairfax County, 455000 population, 10 representatives and the legislature there as this Court has stated in its opinion, expressly went out of its way, not to fragmentally but so simply divided.
So as not to wind up with too large a multimember district, they wind up with two fine member districts.
In contrast to that, we have Bexar County with 830,000 population, that?s almost twice the size of Fairfax County and with that I would like to thank the Court and allow Mr. Gee.
Chief Justice Warren E. Burger: Thank you Mr. Idar.
Mr. Gee, the arguments seems to be made as I am following that a minority, any kind of a minority is entitled to have the area structured, so that it can get the maximum amount of representation without respect to whether they do or do not register the voter is denied --
Argument of Thomas Gibbs Gee
Mr. Thomas Gibbs Gee: Correct yourself Mr. Chief Justice that is not our position, our position is that any minority except perhaps a political ones such as I represent is entitled not to have the area structured so that they do not have a fair opportunity to participate.
We claim no right to any special preference.
May it please the Court, I would like to respond very briefly to a question which was asked by Mr. Justice Stewart of Colonel Jaworski, as regard to the state policy, the Trail Court noted at page 21A of the appendix that jurisdictional statement, in there a trial brief the state asserted, this is the trial brief, may it please Your Honor in the Kilgarlin case and their trial brief state asserted that the explanation to the different treatment of Dallas and Harris Counties was that whenever the county attained a million resonant, it was allocated 15 legislatures and so.
I would like to respond to one other suggestion made by Colonel Jaworski and that is that Dallas was mulitimembered because of the desires of the citizens there.
This record makes in amply clear, that the desires of the citizens there taken by professional and disinterested pole hich testimony was before the redistricting court where two or three to one in favor of single member district and that in fact of the desires of the people in Dallas were not at all for the multimember point.
The Court will find that in the record, in the testimony of Mr. Robertson at page 964 of the record.
Now it falls to me, may it please the court to attempt a handle in very short time and quite a few sayings and I am going to attempt to moving on rather quickly.
Justice Byron R. White: And here ? what about jurisdiction?
Mr. Thomas Gibbs Gee: I intent to say word on that and I will commit.
Justice Byron R. White: Jurisdiction if you talk about the early and as the case it would be --
Mr. Thomas Gibbs Gee: Customarily Mr. Justice White it does, I will attempt to deal with that right now, and in the past this Court has word shortly is the expert on its own jurisdiction.
This matter has held at the three judge court as in Moody v. Flowers or in the new last case must be properly constituted but I pleading asking for an injunction having state wide influence.
Justice Byron R. White: Do you challenge the legitimacy of this Three-judge court?
Mr. Thomas Gibbs Gee: No, not at all, not at all Mr. Justice White.
Justice Byron R. White: So there was properly constituted at Three-judge court?
Mr. Thomas Gibbs Gee: There is no doubt of that Your Honor.
Justice Byron R. White: And only question is whether there was injunctive?
Whether the deterrent that that would (Inaudible) jurisdiction?
Mr. Thomas Gibbs Gee: Mr. Justice White in the Gunn case.
In the Gunn case this court held where the injunction was not evidence, even though the Three-judge court was properly constituted that this court did not have jurisdiction.
Now, it is only step from that to a holding that the court's jurisdiction is not appropriate in this case where an injunction which is now, which applies only two counties in Texas.
Justice Byron R. White: You do not have any authority for that.
Mr. Thomas Gibbs Gee: No sir, we have no authority whatsoever but I suggest that by melding of what the Court has held in the Moody and in (Inaudible) with his decision in Gunn.
Justice Byron R. White: Does that what you says an injunction?
Mr. Thomas Gibbs Gee: I am aware of that Your Honor however I would like to point this out to the Court to find --
Justice Byron R. White: -- you are dealing jurisdiction question raised in.
Mr. Thomas Gibbs Gee: Yes Your Honor.
Justice Byron R. White: Let's assume there is an injunction, let's assume that we just agree with you and said that there was a jurisdiction have what?
Mr. Thomas Gibbs Gee: Of the injunction which applies to Dallas county and Bexar county Mr. Justice White I should say.
Justice Byron R. White: And you would say that you would not have jurisdiction that would not extend to reviewing the judgment of the court with respect to the variations.
Mr. Thomas Gibbs Gee: I would not wish to say that the Court's penalty jurisdiction would not extend in there Mr. Justice White.
I will say this however, if the Court intents to hold that now that the procedure device of a alleging a claim for state wide relief wide relief and perhaps contending for only narrow injunctive relief.
A complainant can place jurisdiction in this court whether it will nor not.
Then the Court's jurisdiction likely to be widely extend.
I would suggest that if the relief sort here had been in Dallas and Bexar counties and release, the relief sort had been granted then we would have precisely the Swann case as regards the practicalities of the matter at this point.
It is not the seeking of relief having state wide impact which calls for immediate review by this court; it is the granting of it and the disruption of the states process which is incidental too.
I would like to say a word about Dallas County, time is very short but if it is been said that the court has long been troubled, it seems to me by the tendency to submerge minorities which is inherent in the size of multi-member district.
Connor v. Johnson notes that the several member districts is the preferable model and Whitcomb against Chavis, the same note is made and even earlier in the Lucas case way back in 1964.
The Court realizes that the larger the district gets the more invidious, its effect are.
Now here we deal with the largest districts known to exist in the entire country and as Dallas is number one, may it please the court Bexar County is number two.
At the time of the trial and Heaven knows what it is now, Dallas had 1,327,000 and 5,00,000 registered voters.
Dallas was larger in population than 15 states.
30 United States senators are elected from constituencies which are smaller than that to which Miami wants to set in the Texas House of Representatives from Dallas, Texas after run.
Now I submit that this situation is toggle, it might have been otherwise this is not the case as a great wide open space is of West Texas where you have to take in a great deal of land in order to get an ideal district.
This is something which could have been and should have been otherwise and would have been but for the board and it plan.
Bexar County as describe by (Inaudible) is much smaller, it is smaller it's not quite a million people.
It's larger than Rhode Island, 8, 30,460 people.
This is still a bracket which is fair sized I submit.
Well, if this district, may it please the court, for instance First and Fourteenth Amendment muster then any will, any in the country and the courts concern with multimember districts with the size of districts is over until Dallas reaches two million or three million or whatever within a short period of time.
If such a district, as this, may it please the Court, the record shows that although the state law forbids it, the voters had to take cheatsheets with them to the poll even to remember who is what that they wanted to vote.
It shows that you can?t get the number of candidates who are on the ballot on the standard voting machine, there is not enough room.
It shows that even the chairman of the DCRG, the dominant political sub party in Dallas when he was asked before legislative committee to name the 15 democratic legislators from Dallas County, he was able to name only and that appears on the record as well.
Justice William H. Rehnquist: Mr. Gee, supposing Dallas county where a 100% White or 100% Negro?s they didn?t have any racial question, would you say there is a constitutional claim simply on the basis of the facts that its created as a multimember district?
Mr. Thomas Gibbs Gee: Mr. Justice Rehnquist, I would.
I would because Houston, which is 200 miles down the pike, has got, if I want to run for the legislature and Huston I can run to 75,000 people.
Justice William H. Rehnquist: But would it be an equal protection claims?
Mr. Thomas Gibbs Gee: Yes, yes.
Justice William H. Rehnquist: Well supposing the Houston, supposing Harris and Bexar and Dallas are all multidistrict types of places.
So there is no equal protection claim, would you still claim there is any constitutional deprivation?
Mr. Thomas Gibbs Gee: I do, I think it would be very bad policy to have district of that size, Mr. Justice Rehnquist but it seems to me that it is the desperate treatment, the selection of different systems that represented the government in Texas which raises the equal protection question.
Chief Justice Warren E. Burger: In your view how many people should be in the district for the state legislature under the constitution?
Under the federal constitution, how many people assured to be in the district?
Mr. Thomas Gibbs Gee: That?s very clear sir.
Chief Justice Warren E. Burger: I am not talking about the federal I am talking about state legislature.
Mr. Thomas Gibbs Gee: Well, between 74,000 and 75,000 people Mr. Chief Justice that?s all we can do.
Now there is ? the Chief Justice referred to the multimembered district?
Chief Justice Warren E. Burger: I am just talking about district, take your chance?
Mr. Thomas Gibbs Gee: Mr. Chief Justice I don?t know what it would be but I am satisfied that it is actually less than an million and half.
It seems to me that this is out of all reason; it seems to me that it is under the Chief Justice, and the opinion written by the Chief Justice in Bullock v. Carter.
We have in Raymond, the (Inaudible) against the Court or under such instance in this record shows that you can not run it effectively in the district the size of Dallas without going to television and radio and that in Huston you can, you can campaign on posters and so on.
Justice Potter Stewart: I just saw, Mr. Gee going back to my brother Rehnquist questions, that you were making the argument that in the district as big as Dallas, quite apart from how the state treat Houston and quite apart any racial discrimination that you are making the basic argument in a district as big as Dallas it violets the constitution have multimembered districts, aren?t you making that issue?
Mr. Thomas Gibbs Gee: Mr. Justice Stewart, I certainly have and if I will answer your question that I was not -- I beg you Mr. Justice Rehnquist pardon.
Justice Thurgood Marshall: Would you like to tell me what section of the constitution you are talking about?
Justice Potter Stewart: The equal protection clause.
Mr. Thomas Gibbs Gee: Yes.
Justice Thurgood Marshall: Is that what you are talking about?
Mr. Thomas Gibbs Gee: Yes I am sir.
Justice Byron R. White: In spite of Whitcomb v. Chavis?
Mr. Thomas Gibbs Gee: In spite of Whitcomb v. Chavis and because of Bullock v. Carter Mr. Justice White.
Now I would like to say one last word on the subject of the Mahan v. Howell which was just been handed down and in which I think no argument on this dictum in this regard.
In Virginia a 16% variation was upheld by this court because Virginia had decided to let these counties pass its legislature pass local legislature as I understand the courts opinion.
I would like to point out then under the Texas constitution the legislature not only is not authorized to pay us local legislation under Texas constitution, the legislature is specifically forbidden by local legislation.
Article 3, section 56, the Texas constitution state, the legislature shall not except as otherwise is provided in this constitution pass any local or special law authorizing regulating the further counties, cities, town, board or school districts locating or changing county seats in cooperated city, towns and so forth creating offices or describing the powers and duties of offices.
Justice William H. Rehnquist: Does the Texas legislature ever passed laws dealing with all cities having populations over a million or over a million five hundred thousand, are they sustained by the courts?
Mr. Thomas Gibbs Gee: They aren?t in some instances Mr. Justice Rehnquist, we call this back at legislation and this is the main whereby the legislature attempts to get around this provision.
Now, some times they are at the brackets are broad enough and whole legislation was closed brackets which says settings on so and so population in generally not substantive.
It seems to me that this is a valid distinction between Mahan v. Howell if county legislation was done by the Texas legislature, it is certainly done in the dark at the moment and it is frequently invalidated by the Texas Supreme Court.
Further Texas, now unlike Virginia as I indicated by the courts opinion has not consistently fallowed the state policy of respecting county line.
In Smith v. Craddick the Texas Supreme Court felt them strain to invalidate a legislature plan enacted by the Texas legislature or which disregard county and it has not, may it please the court done so in this case where 19 counties are could, I am confused by the reoccurring statement that only one county is divided.
The record is clear that 19 counties.
Justice William H. Rehnquist: Out of how many?
Mr. Thomas Gibbs Gee: Out of 254 Mr. Justice Rehnquist, 19 counties have been got and four them have been exploded, cut into three pieces in the defiance of the Texas supreme court mandate the in Smith v. Craddick.
Unknown Speaker: How many counties in Texas?
Mr. Thomas Gibbs Gee: 224 obviously your honor.
Justice Potter Stewart: The statement is that, that only one small county has been invaded and either that?s threw me off too it means that only one of the 19 counties that was invaded was the small one?
Mr. Thomas Gibbs Gee: I think that?s what it must be, or it sometimes described in the brief as as rural by Mr. Justice Stewart.
Chief Justice Warren E. Burger: Thank you Mr. Gee.
Mr. Jaworski, you have some time left.
Rebuttal of Leon Jaworski
Mr. Leon Jaworski: Mr. Chief Justice may it please the court.
On the jurisdictional question I think it perhaps the questions that have been asked by a members of the court who have brought out the basis on which we argued the matter of jurisdiction and I would merely say to the court that we have cited in our brief that the cases that are applicable, we also have undertaken to show to the court that the cases on which the appellees rely are not applicable.
Actually, what has been done here has a state wide impact.
Justice Byron R. White: Does the state take the appeal from the Court of Appeals?
Mr. Leon Jaworski: No sir, no sir.
What happened was that a part of the appeal, you may recall, this court entered a judgment, the appeal that came from Harris County and they remembered that the court entered a judgment dismissing that part, not for lack of jurisdiction but for other reasons.
In any event, this has been fully briefed, I don?t think that I need to take the time of the court.
Actually, I did not see because the rule first that this actually had a state wide impact but secondly, also the pendant jurisdiction rule; I had not taken the time to really argue that for the court and the original argument.
Now, passing on to something else and Mr. Justice Stewart did ask me about the history with respect to Harris County and it was that history with respect to Houston, Harris County that I undertook to say I was not fully familiar with.
The history as to Dallas County has been one consistently of multimember districts but as far Harris County is concerned, I answer that they were floterial districts in 1965; there were three multimember districts in 1966, five multimember districts in 1971.
Now, this is the history as the record shows it to be.
I merely pointed out because Harris County did have some history of some multimember districts.
But it also has a history that really shows more that there has been a division and when we speak of polls, for instance, in Dallas County in connection with the matter of polls, I think we get into some difficulty because the polls as we know, if they are going to be polls relate to how well a candidate is running, they may have some inaccuracy but I wasn?t referring to polls, I was referring to what had actually been requested to all of the representatives of the people and the record shows this.
The legislators had been known the wishes with respect to what they wanted in Harris County and also what the situation was as desired in the other counties.
Now, with respect to the matter of policy, actually I don?t know where the idea got into the record that there had been any state policy with respect to the matter, Mr. Justice Stewart, that was raised a question you referred to where 15 district matters arose.
What actually happened was that the limitation was never offered in a state policy at one time, the House committee on congressional and legislative districts had felt that multimember district should be somewhat limited in size because of the voting machine problem.
Now these changes in the voting machines and the difficulty of getting them and the difficulty of their cost and placing so many of them did raise a question but this was largely done to accommodate a new change that had been made in the voting machines.
The limitation was never offered as a state policy as this record will show and there is no indication as I read the Kilgarlin case that the court assured or was assured that the limitation would be continued in future apportionment plans.
This is just simply something that we find unable to follow completely.
Then when we speak of single-member and multimember districts or single-member districts throughout the state, there?s an interesting Texas Supreme Court case which we have referred to in our brief.
It?s the Mauzy case as we also referred to it and they are in the Texas Supreme Court refuge to grant the relator?s request that the board be ordered to use single-member districts throughout the state.
And you?ll also find in the Smith versus Craddick case decided by the Supreme Court of Texas that there is absolutely nothing found, and this is the Texas Supreme Court talking about multimember districts itself as they found that in any part of the state, there was an unfairness with respect to the matter of multimember districts, I think they would have said so. Consistently, there has been nothing along that line intimated.
Now, on Bexar County I just want to again say this, may it please the court that what the court said in effect of the trial court is we are condemning it not because it operated to dilute or cancel the votes cast by the Mexicans-Americans which I think is the test that we all want to apply.
Here what the court said in effect is we believe that this way, in the hypothesis and the reasoning of the court applied, we believe this will encourage more Mexican-Americans to vote.
Well, of course, we cannot accept this in the test as a fact theory and then determining the constitutional issues that are before the court here.
Justice Thurgood Marshall: I still have problem between Dallas and Harris County as what I want is single and one of the most ? I still have trouble with it.
Mr. Leon Jaworski: Well, I can just say this to you.
If I saw anything in the record at all, anything that showed that it was done as a result of doing more than just seeking to comply, with what the legislators had said they thought was appropriate in those districts, then I would have some trouble with it too.
But I find nothing.
Justice Thurgood Marshall: They could have just as easily tell Dallas single-member district, just as easy because of it?
Mr. Leon Jaworski: They could have, yes.
I mean except, unless you get on some very (Inaudible) some very great refinements which very frankly I would not even suggest although you do have a difference in size.
You do have some difference.
You would find it perhaps more acceptable in Houston than you would in Dallas County.
There is a considerable difference in the size of the two.
There is a considerable difference in the way the two metropolitan areas actually lie.
One is much more compact than the other one.
But all I just have to frankly say that if there were anything here that suggested that it had been done for the purpose of diluting or canceling strength of any group, I would immediately say that there was a serious question with respect to it but you just will not find that in the record.
This is why I say that there is nothing, absent something that cast down upon it or that shows that it was done for some ulterior purpose or that there is some lack of good faith involved.
I would say that there is nothing to keep state from having both multimember and single-member districts and some of its localities.
I thank the court.
Chief Justice Warren E. Burger: Thank you Mr. Jaworski.
Thank you gentlemen.
The case is submitted.