Bush v. Martin

224 F. Supp. 499

• Court: District Court, S.D. Texas
• Decided: March 2, 1964
• Docket: Civ. A. 63-H-266
• Status: Published

Opinions

JOHN R. BROWN, Circuit Judge.

This is a frontal assault upon the constitutionality of Texas Statutes apportioning the Congressional Districts among the counties and citizens of the State of Texas. The Plaintiffs are qualified electors and taxpayers from the 8th. and 22nd Congressional Districts, respectively. The Defendants comprise three major categories. The first, and principal, group are high executive officers of the State, the Secretary of State, the-Governor, and the Attorney General.¹ The second group comprises the duly -elected qualified and acting Chairman of ■the Executive Committees of the Demo«eratic and Republican Parties, respectively.² The third group is made up of the 'County Judge and the County Clerk of .Harris County (comprising Congressional Districts 8 and 22), each of whom is ¡sued individually ³ and, it is claimed, as a representative of all other County Judges .and County Clerks in the State of Texas .similarly situated under F.R.Civ.P. 23.⁴

I.

The immediate objective of the constitutional attack is Art. 197a, Tex.Civ.Stat.Ann., which apportions the Congressional Districts among the counties and citizens of the State of Texas.⁵ Jurisdiction of the case rests on 28 U.S.C.A. § 1343 and 42 U.S.C.A. §§ 1983, 1988, as a suit to redress the deprivation of Federal constitutional rights. A special statutory Three-Judge Court was constituted under 28 U.S.C.A. § 2281. Injunctive as well as declaratory relief is sought. 28 U.S. C.A. §§ 2201 (declaratory judgment), 2202 (injunction).

This case is one of many following in the wake of the celebrated decision in Baker v. Carr, 1962, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663; cf. Gray v. Sanders, 1963, 372 U.S. 368, 83 S.Ct. 801, 9 L.Ed.2d 821, modifying and remanding N.D.Ga., 1962, 203 F.Supp. 158. Because it bears on a specific contention urged with great vigor by Defendants, it is appropriate here to note that Baker v. Carr is not the last word. It is only the latest word, and more are bound to fol-*0W-⁶

As we consider the serious legal problems presented, we do so on the basis of a record that is substantially without contradiction. The case was first the subject of informal and formal pretrial hearings in which all issues were delineated so that all parties could offer all evidence thought relevant. Thereafter the case was heard on evidence which is primarily documentary and statistical in nature, the accuracy of which was for all practical purposes stipulated. Except for that authenticating one map, the only oral testimony was that offered by the Defendants. These witnesses were the respective Chairman of the Texas House and Senate Committees on Legislative and Congressional Apportionment. This testimony will be discussed later at some length as it bears on the need for judicial relisf and the nature of the remedy, if any, to be afforded. For the present it suffices merely to state that this testimony does not reflect any historic, geographic, economic or sociological justifications for the disparity in the population of the respective Congressional Districts.⁷ The disparity is indeed spectacular. It runs from a low of 216,371 for District 4 to 951,527 for adjoining District 5.⁸ The State average, in contrast, is in the neighborhood of 415,000 to 435,000.⁹ Not surprisingly, the marked excesses over the State average are found primarily in the ever-expanding metropolitan areas of Houston, Dallas, San Antonio, and Fort Worth.¹⁰ But the disparity is not confined to the cities. Three Districts, Nos.

14, 15 and 16 are aggregations of large area and large numbers of people.¹¹ In this malapportionment, Texas, with its District No. 5 (Dallas metropolitan area), has the distinction of the largest single Congressional District in the Nation.¹² The ratio between the District of the highest population and that of the lowest is 4.4 to 1. The highest District is 128.5% larger than the State average (see note 9, supra); the lowest District is 48.1'% smaller than the average.

From 1874 on this disparity is th© greatest. From 1874 to 1940 the relationship between the highest and lowest district remained fairly constant, the ratios ranging from a low 1.3 to 1 to a high 1.9 to 1. By 1950 the ratio had climbed sharply to 3.6 to 1. Alleviated only momentarily and then only partially by the Reapportionment Act of 1957, Acts 1957,. p. 681, the ratio reached the new and' present peak of 4.4 to 1 under the I960 census.¹³

The only significant change in the 1957 Act was to give Harris County (Houston) ■two Congressmen, splitting former District 8 into two Districts (8 and 22) .¹⁴ This left Dallas County (Dallas) the target of greatest discrimination, the effect of which has gotten only worse as time, tide, population explosion and shifts go on.¹⁵ The figures also show that although District 5 (Dallas) suffers the most, it is by no means alone. There are substantial disparities as to Districts 8 and 22 (Houston), District 12 (Fort Worth), District 20 (San Antonio), and the El Paso-anchored District 16 (see note 10, supra.)¹⁶

Thus it is seen that only once since 1933 has Texas made any reapportionment. And when this was done in 1957, only one significant change was made. (See note 14, supra) And so far as this record reflects and our own research has indicated, the unsuccessful ■efforts to deal with the problem are confined to the proposed reapportionment in the 1963 regular session. This effort took the form of House Bill 871, 58th Legislature, Regular Session 1963, which was passed by the House and sent to the Senate on April 4, 1963. On May 22, 1963, the Senate passed its Committee 'Substitute for H.B. 871 and sent it to the House. On May 24, 1963, the House refused to concur in the Senate amendments and requested the appointment of a Conference Committee to consider the differences between the two Houses. The Legislature then adjourned sine die on May 24, with no Conference Committee meeting having been held. The testimony of the two legislative witnesses indicates that the most immediate reason for inaction was the lateness of time in the Session and the virtual impossibility of securing enactment of any legislation on such a matter of widespread interest in such short a time. Part of the problem also was, they testified, the absence of any “guidelines” from the United States Supreme Court concerning the prospective legal and constitutional obligations of State Legislatures under the teaching of Baker v. Carr. Other stumbling blocks briefly elucidated by these witnesses concerned adjustment in size and population of District 16 (see note 11, supra), especially in relation to reshuffling of contiguous adjacent counties from other Districts in any split or rearrangement plus the not unnatural regional jealousy between some of the east and northeast Districts and this one covering so much of the western end of the State. We find it unnecessary to examine into or undertake the difficult task of assaying what reasons for this legislative inaction were or were not significant. Accepting as we readily do all that these witnesses testified to, we think this unsuccessful effort is of little final consequence since on its face it did not even begin to provide a reasonably equal reapportionment. Although changes were made in all but 5 Districts, the long existing disparities as to the San Antonio, Fort Worth, and El Paso Districts were left substantially undisturbed.¹⁷ Of course the House proposal represented some improvement. The smallest District under the House Bill was 295,395 (District 3) as opposed to 216,371 (District 4 under Arts. 197a). However there were still 8 Districts having a population less than 350,000 (substantially under the State average of 416,508), and as previously noticed, the metropolitan areas of Dallas, Houston, Fort Worth, and San Antonio still suffered marked underrepresentation along with El Paso-based District 16¹⁸

The Senate version was even less satisfactory. Thirteen Districts were not changed at all (from the composition under Tex.Civ.Stat.Ann. art. 197a), and, as in the House version, San Antonio, Fort Worth, and the El Paso Area were given no relief (other than the 9,109 person reduction in the size of the El Paso District noticed above) ¹⁹

It rounds out the historical-statistical picture to point out that although Baker v. Carr was announced on March 26,1962, and, in Texas as elsewhere, was a well known fact in contemporary constitutional development, no action toward congressional apportionment was taken by convening a special session of the Legislature thereafter in 1962.²⁰ The legislative witnesses testified that in the 1961 Session the Legislature was preoccupied entirely with the equally troublesome problems of state legislative reapportionment as to both the House and Senate. It is interesting to note here that in contrast £he entire absence of either Texas con-gtitutional or legislative standards for congressional apportionment, the Texas Constitution is emphatic as to both Houses of its Legislature. With the only difference being the one of little contemporary present significance in these days of virtual universal suffrage by a distinction between population and qualified electors, the Texas House ²¹ and Senate ²² are to be apportioned substantially in relation to population.²³

II.

This quantitative analysis then brings us to the legal questions which the case so seriously presents. Some by now are greatly simplified if not altogether eliminated. The first is the problem of subject matter jurisdiction. Akin to this is the question of justiciability or to put it in its opposite — it is the reflex of the much mooted label of a “political” question. Both of these matters were put to Test finally and completely by Baker v. Carr. To this extent, at least, we concur with the majority in Wesberry v. Vandiver, N.D.Ga., 1962, 206 F.Supp. 276. By an intricate reconstruction of that 3-1-3 decision rendered by what Justice CLARK called a “bobbed tailed court,” Baker v. Carr, 1962, 369 U.S. 186, 252, 82 S.Ct. 691, 7 L.Ed.2d 663, (concurring opinion), the majority concluded that Colegrove v. Green, 1946, 328 U.S. 549, 66 S.Ct. 1198, 90 L.Ed. 1432, was a holding that the question of congressional apportionment was justiciable. But this hardly solves our problem for as Wesberry v. Vandiver itself reveals, what is recognized as “justiciable” is held beyond effective judicial relief because, among •other things, that Court says the question is one committed to the coequal branch of the Government, namely Congress, under Art. I § 4 of the Constitution. Consequently, we must take some of these problems one at a time.

III.

One on which there is presently little disagreement is the standard of equality. We accept the approach articulated in a number of eases ²⁴ that the Supreme Court means to adopt the general guide of prohibiting “invidious discrimination.” A good deal is wrapped up in this formula. An analysis of it involves subsidiary inquiries along the lines of whether the disparity is irrational. Shading off, or into, this standard is the problem of whether the disparity is arbitrary, capricious, wholly without reasonable foundation, and the like. In the end it perhaps comes back to the question whether there have been actual factors, or perhaps whether such factors can now be discerned though not previously articulated in formal Governmental fashion, which sustain or at least explain or in some measure justify the particular wide arithmetical inequality. The search for, and the assaying of, formally undisclosed factors may be important especially where, as is true in this record, neither the Texas Constitution nor its apportionment statutes prescribe any standards for congressional apportionment. We do think, however, that it is a corollary to this that “invidious discrimination” is something more than numerical disparity. The problem, in short, is more profound than that of arithmetic.

IV.

While at times it may be difficult to really separate the question of “invidious discrimination” from that concerning the necessity for, or appropriateness of, a judicial remedy, we think that there can be no doubt that the disparity here spectacularly falls within that category.

In considering this aspect, we must not lose sight of the historical fact that goes back to the inception — indeed, the conception — of the Nation. This is revealed graphically by contrasting the problem with that of the composition o: State Legislatures. The problem of the) distribution of the legislative power, the machinery by which it operates, or the electors who establish it (see, e. g., notes 21, 22, supra), is essentially one of meeting the imperative demand of a republican form of Government under the, Guaranty Clause of the Constitution, U.S, Const, art. IV, § 4. The present indie; tions are that considerable leeway must be allowed to the States in the diffusion^ of its political initiative. See, e. g., Gray v. Sanders, 1963, 372 U.S. 368, 83 S.Ct. 801, 9 L.Ed.2d 821, 827-828, especially the concurring opinion, 372 U.S. at 381-382, 83 S.Ct. at 809, 9 L.Ed.2d at 831; cf. Scholle v. Hare, 1962, 369 U.S. 429, 430-432, 82 S.Ct. 910, 911, 8 L.Ed.2d 2,3-4. To put it another way, unless the State constitutional or legislative standards impose numerical equality as the predominate test and then under circumstances which elevate such local standards to a federally guaranteed right, a number of other elements may well be open besides population. These perhaps include geography, area, economic, social, topographical, sociological or political factors.

But here we deal with a legislative assembly which, by the Constitution²⁵ and because of the Great Compromise ²⁶ giving rise to that Constitution, is to bear a direct relation to population, and, at least as between the States, population only. That the congressional Articulation of that constitutional imperative — former 2 U.S.C.A. § 3 ²⁷ — evaporated with the exhaustion of that law in |1929 ²⁸ is not decisive. The simple con/stitutional fact is that so far as (a) the standard of composition of the Congress is concerned, as distinguished perhaps from (b) the standard governing the time and circumstance permitting or requiring judicial intervention, Members of Congress are to be elected on the basis of population and nothing else.²⁹

We think it requires no extended discussion or analysis of the factual material of this record to conclude that this sort of discrimination exists here. Without even remotely suggesting that we hereby put an historical blessing on the ratios maintained up to 1940 (see note 13, supra), the trend since then as it is manifested in the contemporary climax is unacceptable. The relief afforded by the 1957 Act was both momentary and inadequate — largely because there was no real effort at reapportionment as such. What, and really all, that was done, was to provide Harris County (Houston) with an additional Congressman. But whatever the adequacies or inadequacies of that effort, the ever expanding population of Texas has thrown the whole thing out of kilter. The Defendants neither justify nor claim to be able to find any legal justification for continuation of these disparate ratios running now as high as 4.4:1. Though we discuss it more in detail later, it is appropriate here to point out that injunctive relief against only portions of Art. 197a, that is as to particular Districts (e. g., 5, 12, 16, 20, etc.) would be unworkable and unjust. To alleviate these startling discriminations, it is simply necessary to reapportion the State as a whole.

V.

The much more troublesome problem is this. Granting the existence of invidious discrimination, jurisdiction and jus-ticiability, is this case in its present posture one that either requires or admits of coercive judicial relief ? This notion may be variously described. To the familiar label of “want of equity” with which Wesberry v. Vandiver, N.D.Ga., 1962, 206 F.Supp. 276, was so preoccupied, the Defendants urge additional facets. In elaboration of the argument that since under Art. I, § 4, Congress has the power ultimately to regulate congressional dis-tricting, it is therefore a matter left to determination by a coequal branch of the Government, the Defendants specifically assert that the case should be abated, if not dismissed, since the Plaintiffs stipulate that they have not sought congressional relief. Additionally, the Defendants assert as a separate express defense that no action should be required under the pressures of a coercive judicial order until such time as the Supreme Court establishes workable and understandable guidelines. In connection with the latter, they naturally, and properly, emphasize the uncontradicted fact that the Supreme Court has accepted for argument and determination a great number of cases (see note 6, supra) bearing directly on this problem.

We think all of these contentions may be discussed together. At the outset, we are certainly in agreement with the Defendants that much is to come from the Supreme Court decisions in these pending cases. The decisions cannot help but be informative, if not decisive, as the District Courts “on the front line,” see Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770, 790, undertake this recently imposed serious judicial function. Of course one of the cases could be dispositive. If the Supreme Court affirms Wesberry v. Vandiver, N.D.Ga., 1962, 206 F.Supp. 276, and approves what we conceive to be the rationale of Judge Bell’s opinion for that Court, it would, in effect, be a declaration that congressional apportionment must be left to the respective State Legislatures unfettered by anything that a Federal Court may do with the only ultimate relief being from Congress. If that result transpires, then no action would be authorized in our case.

We cannot, therefore, escape the uncomfortable responsibility of determining as our lights reveal, whether the decision in Wesberry v. Vandiver is correct and will in all probability be sustained or whether, on the other hand, the view expounded by Chief Judge Tuttle is not more nearly correct. With the greatest of deference, we align ourselves with the dissenting opinion of Judge Tuttle. When that Court as a whole recognized, as it does, that the discrimination in Georgia was “egregious” and yet the Court is powerless to do anything about it, it is to us the old shibboleth of non-justiciability in a new cloak. The majority put predominant emphasis on the provision of Art. I, § 4, according to Congress the power to grant ultimate relief against invidious discrimination. That, coupled with the action of that Court in dismissing, not merely deferring action, adds up, so far as we can understand that opinion, to the conclusion that there are hardly any circumstances under which the Federal Court could intervene to prevent denial of constitutional rights resulting from invidious discrimination in congressional apportionment.

In assaying the likely outcome of that case, we find the majority’s intricate effort to analyze and reconstruct just what the Court did in Colgrove v. Green to be particularly unhelpful. Adding 3 and 1 does make 4, but we are unable to conclude that there was ever a majority constructed which held that although the case was justiciable and therefore a proper one for judicial relief, the case on its merits nevertheless was “wanting in equity.”

Of course the easy way out is either to take no action or formally to defer action pending decision by the Supreme Court on that case as well as others which may be illuminating. But this Court no less than the Supreme Court of the United States is charged with serious obligations under Art. Ill of the Constitution and under the implementing statutes of Congress to afford to litigants appropriate relief in vindication of constitutional and civil rights. We must therefore balance the relative advantages, disadvantages, the relative injuries to the parties, and perhaps even more so to the whole State of Texas.

If the Supreme Court concludes that equitable relief is not available to enjoin egregious, that is invidious, irrational, unreasonable, arbitrary, capricious, discrimination, then it indeed would be a great misfortune were this Court to enter a decree compelling immediate remedial action by Texas. There would be the great expense of a special session of the Legislature. More serious, that result would be out of keeping with the proper role of the Judiciary — certainly the Federal Judiciary in our Federalism. Legislative changes in a matter which is essentially legislative in nature ought not to be brought about, even on a contingent basis, by the coercive pressures of a Federal Court injunction. On the other hand, these Plaintiffs have established a clear case of discrimination. They, for themselves, and all other similarly situated and these we conclude encompass at least those in all Districts having substantial underrepresentation, lose valuable rights. Under the operation of the election machinery of Texas, the reapportionment must be accomplished by February 3, 1964. There can be no assurance that the Supreme Court will speak by that time. If authoritative decisions are not pronounced by that critical date, it will mean that thousands of Texas citizens throughout the State will suffer unconstitutional dilution of their power and right to vote for another two years. Relief, if it comes, will be effective then only as to congressional elections in 1966, nearly three years hence.

Bearing on these relative injuries to the respective parties and to the public generally, it is appropriate, of course, to keep in mind again the distinction between discrimination as to State Legislatures and discrimination in congressional districting. As the many cases (see note 6, supra) indicate, it is not uncommon for a small minority of the voters to be able to elect a majority of both Houses of State Legislatures. And in nearly every case so far the minority of the voters can elect a sufficient majority of the Legislators to effectually prevent amendments to the local Constitution either by referendum or convention. To this extent voters in underrepresented areas are directly denied an effective right to vote. On the other hand under the operation of the Federal Constitution and the implementing statutes, Texas as a whole gets all of its proper number of Congressmen. Since this is a National Legislature, the problems, while undoubtedly of frequent paramount local interest from time to time, are not nearly so localized as is true in the state legislative process. Likewise, it is much more difficult, if not impossible, to demonstrate that the voters in the underrepresented Congressional Districts, as would be true of the voters in an underrepresented State legislative district, are outnumbered through a majority of Congressional Representatives elected by a minority of the population.

Despite these differences, we think the law is clear that the right to cast a vote in a primary or general election for Congressmen is a precious and constitutional right which ought not to be lost even for a period of two to three years merely on the possibility that the Supreme Court will recede so quickly from what we conceive to be the full reach of Baker v. Carr as to effectually close the doors of the Federal Courts to judicial prevention of marked invidious discrimination. Of course those relative risks, harms, injuries, advantages, or disadvantages must be carefully weighed. And they would prevail here were there a substantial belief in our minds that this would be the result in the forthcoming Supreme Court decisions. But even as to this, we do not foreclose interim relief against the impact of the orders which we will enter. For these orders will provide that their effectiveness is postponed for a specified period to enable the parties to secure from the Supreme Court or a Circuit Justice a stay of our order pending decisions in the cases now befoi'e it. That Court, and that Court alone, will be able to determine in the light of the cases pending before it what the likelihood of decision will be, both in terms of time and the probable nature and reach of the decisions to be rendered.

Rejecting, as we do, the argument elucidated and adopted in Wesberry v. Vandiver concerning the authority of a coequal branch to alleviate this discrimination we must deal with the other contentions. For reasons we need state only briefly, we think no other factors indicate any “want of equity.”

The Defendants seem to suggest that judicial intervention at this stage necessarily implies the serious charge of lack of good faith on the part of Texas. True, they do not phrase it this way. Rather, they couch it affirmatively to urge that the Legislature in 1963 made a good faith effort to correct the evil, and the mere fact that it failed to achieve success should not deprive it of the right to try — at least one more time — before the Judiciary acts. But our action is certainly not to be construed as any unseemly reflection upon the good faith, sincerity or conscientious acceptance of constitutional obligation on the part of the authorities of the State of Texas or its Legislators. We have emphasized the activities in the unsuccessful abortive efforts in 1963 not to demonstrate any lack of good faith or serious purpose. We have done it to show that so far there is nothing on the horizon to indicate that relief can be forthcoming through State legislative channels that will give these Plaintiffs and others similarly situated effective relief for the present time.

Conceding without reservation, as we do, the good faith of all officials of the State of Texas — including its Legislators — the determination of the question of the propriety of judicial intervention certainly permits an objective consideration of the recent actions of the Texas Legislature in terms of the probability of the disfranchised voters getting relief at its hands. This necessarily involves both a question of time and what might be described as the substantive approach.

As to the latter, there is little now to indicate that what the Defendants put forward as a formal defense — the necessity for Supreme Court guidelines— has really cut any figure. Texas has reapportioned many times in the past. On those occasions no guidelines were present other than those which were reflected in national legislation up to 1929 (see note 27, supra). The central factor in that Federal legislation was numerical equality. Although 2 U.S.C.A. § 3 had the added elements of contiguity and compactness, Texas has apparently always recognized this and even today the geographical configuration of the Districts is fortunately free from the invidious practice of gerrymandering. And even if Baker v. Carr was thought by Texas political leadership to change the simple standard of numerical equality so far as practicable, there is nothing in the subsequent action of the Legislature to indicate either any quandary or effort to determine what the guidelines ought to be. Baker v. Carr had, of course, come down on March 26, 1962, and all Texas, as all America, was aware of it. The House Bill was introduced on March 7, 1963. While committee hearings were held in both the House and the Senate, the record indicates that the respective committees presumably took a passive approach. Following the usual practice, each merely waited for the appearance of witnesses. Neither of the committees undertook the affirmative task of attempting to ascertain what guidelines were or might be proper, what factors should or might be considered. Nor was there any effort, as in other places such as, for example, the study made under the direction of the New York Legislature, concerning this task of reapportionment.³⁰ The House passed H.B. 871 and sent it to the Senate on April 4, 1963. Bringing it even closer to home, while the matter was pending in the Senate, the case at bar was filed on April 23, 1963. And even though we can readily understand that when the Senate finally got around to passing a bill on May 22, 1963, it was then really too late to take any practical action in the closing days of a strenuous session of the Texas Legislature,³¹ neither one or both of the Houses took any steps toward an interim determination of the proper standards. And this despite the fact that Texas has long had, and utilized to great advantage, the resources of the Texas Legislative Council. Established by law,³² this is a valuable facility of the Legislature for the collection and assimilation of factual and other material for studies in depth on pressing public questions looking toward legislative or constitutional changes. Of course there is no right in a Federal Court to direct the Legislature or its subsidiary bodies to employ such facilities, and we do not even remotely imply such criticism here. But in determining whether equitable relief is reasonably essential at the present time because effective relief cannot be obtained elsewhere, it is entirely permissible, indeed our duty, to ascertain whether on the present showing there is a likelihood that it can be obtained through other means.

Standing alone, the aspect just discussed would have perhaps only limited significance. But when we consider the element of time, it seems clear to us that there is no basis whatsoever for staying the hand of equity on the ground that relief can be elsewhere and otherwise obtained. Having known since April that this attack was being made and being aware of the failure of the Legislature to take any effective action toward its correction, the State-official-Defendants are not in a position to advance as a basis for postponing judicial relief the appealing defense: Let Us Work This Out. Had there been at any time since the adjournment on May 24, 1963, down through the pretrial stages of this case and its trial, any indication that the Governor would exercise his constitutional and statutory power³³ to convene a special session of the Legislature for the consideration of this pressing public problem, this Court without a doubt would unanimously withhold any action to afford full exploitation of these procedures. But this has not been done, nor do such Defendants ask that they be given an opportunity to do this. The defense is essentially that because of the absence of guidelines, the State ought not to incur the expense and difficulty of a special session only to legislate an Act which might itself have constitutional infirmities. To put it another way, the Defendants are urging that equity should await its hand until the Legislature next meets in regular session at which time, conscious of the imperative demands of the Federal Constitution as well as its own, Texas will respond by a proper apportionment act. Accepting this with no reservation as to good faith, it means that no matter how clear the deprivation of a constitutional right, there can be no legislative relief until after February 1964. This in turn means that there can be no relief prior to the congressional elections in 1966.

We credit fully the serious, sincere effort made in March-May 1963. But one pass is hardly enough. Certainly not when there are no sound reasons revealed why a second, or a third, or even a fourth effort has not been made, and to give up now postpones even the slightest hope of relief for another three years.

If that is “want of equity” we are unable to reconcile it with the full sweep of Baker v. Carr.

VI.

Having said this much, we do not go so far, however, as to undertake to apportion the State of Texas for Congressional Districts. Time is short, but there is still much time left. The job can be simple unless we labor to render it complex. It is sufficient in our judgment that we simply declare Art. 197a unconstitutional and by appropriate orders enjoin its enforcement.³⁴

The consequence likely will be that unless interim legislation is passed, this will mean that all Congressmen would be elected at large, a result which all assume to be most unsatisfactory. But Texas is not without resources. It has shown a capacity throughout its colorful and productive history to take decisive action. Impressed as we are with the good faith of all of the Legislators as reflected by their two spokesmen, we believe that the infinite variety of legislative factors inherent in this problem can be hammered out in time for all Texans to have a vote for Congressmen undiluted and unfettered by unconstitutional discrimination, no matter what its source or origin.

Decree for plaintiffs.

DECREE

This cause having come on for trial at which all parties were present by counsel and the Court having heard the evidence and having considered the pleadings, evidence and argument of counsel being of the view that a decree should be entered granting specified relief to the Plaintiffs for the reasons set forth in the Court’s opinion filed this date, and to which Judge James L. Noel, Jr. dissents for the reasons set forth in his dissenting opinion filed therewith, it is therefore ordered, adjudged and decreed by the court:

First: The Court hereby declares that the present apportionment of Congressional Districts under Art. 197a Texas Civil Statutes Annotated (Vernon 1959) (Tex.Acts 1957, 55th Leg., ch. 286, at 681) is unconstitutional and therefore said Art. 197a is void and invalid in its application;

Second: In conducting primaries for nomination of candidates, and elections for the election of, Members of Congress from Texas, the named Defendants, individually and in their official representative capacity (but not as alleged representatives of a class of public officers), their respective agents, officers and employees, are hereby enjoined and restrained from enforcing, applying or following said Art. 197a;

Third: Pending enactment by the State of Texas of substitute legislation in the place of said Art. 197a, all Members of Congress for the State of Texas shall be nominated and elected from the State at large;

Fourth: This order shall not become effective until 11:00 A.M. the 1st day of November, 1963, in order to enable Defendants, or any one or more of them, to apply for and obtain a stay of this decree from the Circuit Justice, the Supreme Court, or any Justice thereof;

Fifth: The Court retains jurisdiction of the cause for such other and further orders as may be required.

1 . The Complaint charges and the law reflects that each is charged with major responsibilities for the conduct of primaries and elections in Texas and the three comprise in effect the Election Board. See, e. g., as to the Secretary of State Tex.Civ.Stat.Ann., Election Code arts. 1.03; 1.04; 7.14, §§ 1, 19; 8.37; 8.38; 8.44 (Vernon 1952) [hereinafter cited Election Code (Vernon )]; Election Code art. 13.34 (Vernon Supp. 1962); cf. Tex.Civ.Stat.Ann. art. 194a (Vernon 1959). See, e. g., as to the Governor Election Code arts. 4.01; 4.09, § 7; 9.26; 8.39; 8.45 (Vernon 1952); Election Code art. 6-07 (Vernon Supp. 1962). As the Chief Executive Officer of the State, the Governor has authority to call special sessions of the Legislature and has the- duty to- “eause the laws to be faithfully executed.” Tex.Const. art. 4, §§ 1, 8, 9, 10, Vernon’s Ann.St. As to the Attorney General see, e. g., Election Code arts. 8.38, 9.02 (Vernon 1952). Additionally the Attorney General is reguired to be served by both 28 U.S.C.A. § 2284(2) and Tex.Civ.Stat.Ann. art. 2524 — 1, § 11 (Vernon 1951).

2 . These officials have crucial and major responsibilities in the holding and conduct of primaries and elections. See, e. g., Election Code arts. 13.23, 13.25 (Vernon 1952); Election Code arts. 13.-12, 13.15, 13.27, 13.34, 13.35, 13.36 (Vernon Supp.1962). Under the Election Code, candidates for the respective offices are nominated by direct primaries (and by run-off primaries when needed). A political party whose nominee for Governor in the last preceding general election received as many as 10,000 and less than 200,000 votes may nominate candidates for state offices and for United States Senator at a State Convention. Election Code art. 13.45 (Vernon Supp. 1982). Such party may nominate candidates for state, district, and county offices under the provisions of the Election Code relating to the conduct of primary elections. Election Code art. 13.45 (Vernon Supp.1962).

3 . These officers likewise have a number of functions to perform. As to County Judges see, e. g., Election Code arts. 1.03, 4.01, 4.05, 7.07, 8.30, 8.36, 8.37, 8.43, 8.44, 13.04 (Vernon 1952). As to County Clerks see, e. g., Election Code arts. 1.03, 7.07, 8.15, 8.25, 8.29, 8.32, 13.23, 13.28, 13.31, 13.32 (Vernon 1952); Election Code arts. 5.05, 7.14, 13.24, 13.34 (Vernon Supp.1962); Tex.Civ.Stat.Ann. art. 3026a (Vernon 1952); Tex.Civ.Stat.Ann. art. 3158a (Vernon Supp.1962).

4 . The named Defendants, County Clerk and Judge, respectively, of Harris County, deny that under F.R.Civ.P. 23 they either are, or can be, representative of the class of County Clerks and County Judges throughout the State. Although the nature of their duties is such that they are proper parties with respect to elections to be held in Harris County, we need not determine whether they may be sued as representative Defendants since effective relief is available by injunctive or declaratory orders against the Governor, the Secretary of State, and the Attorney General.

5 . Neither the Texas Constitution nor Statutes prescribe any standard for Congressional apportionment. Art. 197a (Tex.Acts 1957, ch. 286, at p. 681) provides :

“Section 1. The State of Texas shall be apportioned into the following Congressional Districts, each of which shall be entitled to elect one (1) Member of the Congress of the United States: # * *

[here follows the description of the “First,” “Second,” through “Twenty-Second” Districts specifying the counties comprising each District.]

# # * # *

“Sec. 2. Nothing in this Act shall in any wise affect the tenure in office of the present delegation in Congress of Texas, but this Act shall take effect for the General Election in 1958, and thereafter until this law shall have been changed by the Legislature of this State.”

Apportionment Acts were enacted (and so far as we have been advised in substantially this form) in 1873, 1882, 1892, 1901, 1909, 1917, and 1923. Tex.Acts 1874, art. 5811a, 5811b (Paschal) ; Tex.Acts 1882, ch. 13, at 9; Tex.Acts 1892, tit. 4, art. 16 (Sayles) ; Tex.Acts 1901, 1st Called Sess. ch. 5, at 7; Tex.Acts 1909, ch. 86, at 156; Tex.Acts 1917, ch. 119, at 311; Tex.Acts 1933, ch. 135, at 344.

6 . Congressional Reapportionment

1963 Lower

Supreme Court

Court Citation to Citation Supreme

Docket U.S.L.Week F.Supp. Court

No. Vol. Page Name Yol. Page Action

22 31 3147 Wesberry v. Sanders 206 276 PJN*

96 31 3355 Wright v. Rockefeller 211 460 PJN

267 32 3062 Honeywood v. Rockefeller 214 897

381 31 2305 Meyers v. Thigpen 211 826

476 32 3103 Williams v. Moss **

State Apportionment

20 31 2121 W.M.C.A., Inc. v. Simon 208 368 PJN

23 31 3147 Reynolds v. Sims 208 431 PJN

24 31 2059 Beadle v. Scholle ***

27 31 3157 Vann v. Frink 208 431 PJN

29 31 3173 Maryland Committee for Fair Representation v. Tawes **** PJN

41 31 3197 McConnell v. Frink 208 431 PJN

69 31 2263 Davis v. Mann 213 577 PJN

297 32 3086 Swann v. Adams 214 811

307 32 3086 Roman v. Sincock 215 169

454 31 2305 Meyers v. Thigpen 211 826

* PJN — Probable jurisdiction noted.

** Summarized 32 U.S.L.Weck 2077.

*** Reported 367 Mich. 176, 116 N.W.2d 350.

**** Summarized at 31 U.S.L.Week 2155.

Besides these there have been a number of other apportionment eases. E. g., Clark v. Carter, E.D.Ky., 1963, 218 F.Supp. 448; League of Nebraska Municipalities v. Marsh, D.Neb., 1962, 209 F.Supp. 189; Wisconsin v. Zimmerman, W.D.Wis., 1962, 209 F.Supp. 183; Toombs v. Fortson, N.D.Ga., 1962, 205 F.Supp. 248; Sanders v. Gray, N.D.Ga., 1962, 203 F.Supp. 158.

7 . Pursuant to the statement transmitted to Congress by the President following the publication of the 1960 decennial census of the population, Texas with its population of 9,579,677 is entitled to 23 Congressmen. 2 U.S.C.A. § 2a. Because Art. 197a note 5, supra, apportions the state into 22 Districts, the 23rd Texas Congressman was elected at large in the 1962 elections. 2 U.S.C.A. § 2a (c) (2).

8 . Population per Congressional District under Art. 197a based on 1960 census:

9 . The average is 435,000 if the total population is divided by 22 Districts; it is 415,000 if the total is divided by 23 (22 plus state at large).

10 . The Districts comprising these metropolitan areas are:

11 District 16 with El Paso as the westernmost anchor comprises 19 counties having a total area of 42,607 square miles, 375 miles long and 231 miles wide. District 21, contiguous to District 16 on the east, has a meager population of 262,742.

12 . See the Table in Wesberry v. Vandiver, N.D.Ga., 1962, 206 F.Supp. 276, 281. This is one of the cases accepted for argument by the Supreme Court, see note 6, supra.

13 . The ratios and percentages of the highest to the lowest Districts from 1874-to the present are as follows:

* District 8 — Houston (Harris County)

# District 5 — Dallas (Dallas County)

14 . Out of 22 Districts, 12 remained exactly the same and the changes in the others varied from a maximum of 60,000 plus or minus down to approximately 20,000 plus or minus.

¹⁵

¹⁶

17 . Under H.B. 871 the State was reapportioned into 23 Districts to care for the added Congressman after the 1960 census (except for Dists. 5, 8, 12, 16, 20, 22 the Districts were extensively reshuffled and renumbered):

Although Dallas was split into 2 Districts (5 and 23), San Antonio (District 20 — 687, 151) and Fort Worth (District 12 — 538,495) were not changed at all; and the oñly relief afforded El Paso (District 16) was a reduction of 9,109 from 573,438 to 564,329.

¹⁸

19 . Except for splitting Dallas County into 2 Districts (Dists. 5 and 23), the Senate Committee substitute for H.B. 871, working on the structure of Art. 107a (rather than the renumbered, reshuffled Districts in H.B. 871), shifted only 112,640 persons:

It is not surprising that the Senate Revision left 8 Districts with populations of less than 292,000.

20 . The Third (and last) Called Session of the 57th Legislature adjourned Feb. 21, 1962.

21 . Tex.Const. art. 3, § 26, 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; * * *•”

Under § 26a maximum representation for any county is seven unless population exceeds 700,000.

The present apportionment of Representatives to the Texas House is Tex.Civ. Stat.Ann. art. 195 (Vernon Supp.1962) (Tex.Acts 1961, ch. 256, §§ 1, 2, at p. 544).

22 . Tex.Const. art. 3, § 25, provides:

“The State shall be divided into Senatorial Districts of contiguous territory according to the number of qualified electors, as nearly as may be, and each district shall be entitled to elect one Senator; and no single county shall be enti-tied to more than one Senator.”

The Senate is further limited. Art. 3, § 2, provides:

“The Senate shall consist of thirty-one members, and shall never be increased above this number. * * * ”

The present apportionment of members of the Texas Senate is Tex.Civ.Stat.Ann. art. 193 (Vernon Supp.1962) (Tex.Acts 1961, eh. 256, § 4, at p. 544). It is interesting to note that, as in the ease of Art. 197a, the acts apportioning the Texas House and Senate members do not indicate in any manner the standard or process underlying the resulting apportionment; the Districts and the counties they contain are simply listed.

23 . Pending now before this same Court is an action seeking declaratory and in-junctive relief as to Texas legislative reapportionment. Any comments made herein contrasting the factors in the two cases are purely illustrative. Neither by what we say, or do not say, do we intimate even a remote suggestion of a predetermination of any of the issues in that proceeding.

24 . Sims v. Frink, M.D.Ala., 1962, 208 F.Supp. 431, 436, probable jurisdiction noted, 374 U.S. 802, 83 S.Ct. 1692, 10 L.Ed.2d 1029 (No. 508, 1962 Term; renumbered No. 23, 1963 Term); Wesberry v. Vandiver, N.D.Ga., 1962, 206 F.Supp. 276, 282, probable jurisdiction noted, 374 U.S. 802, 83 S.Ct. 1691, 10 L.Ed.2d 1029 (No. 507, 1962 Term; renumbered No. 22, 1963 Term); Toombs v. Fortson, N.D.Ga., 1962, 205 F.Supp. 248, 254; Sanders v. Gray, N.D.Ga., 1962, 203 F.Supp. 158, 168-170, modified and remanded, 1963, 372 U.S. 368, 83 S.Ct. 801, 9 L.Ed.2d 821. Of course only the Wesberry case involves congressional apportionment, but we agree with the clear indication of the majority in that case that the standard of invidious discrimination applies equally as well to congressional apportionment as it does to legislative apportionment.

25 . Art. I, § 2. “The House of Representatives shall be composed of Members chosen every second Tear by the People of the several States, and the Electors in each State shall have the Qualification requisite for Electors of the most numerous Branch of the State Legislature. * * * The Number of Representatives shall not exceed one for every thirty Thousand, but each State shall have at Least one Representative * *

Art. XIV, § 2. “Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed. * * * ”

26 . See Warren, The Making of the Constitution 141, 159, 163, 220-312 (1927); Padover, To Secure These Blessings, 152-88, 285-301 (1962).

27 . 2 U.S.C.A. § 3. “In each States entitled under this apportionment to more than one Representative, the Representatives to Congress shall be elected by districts composed of a contiguous and compact territory, and containing as nearly as practicable an equal number of inhabitants. The said districts shall be equal to the number of Representatives to which such State may be entitled in Congress, no district electing more than one Representative.” Act of August 8r 1911, ch. 5, § 3, 37 Stat. 14.

28 . The Federal legislation was traced in detail in Wesberry v. Vandiver, N.D.Ga., 1962, 206 F.Supp. 276, 278-279.

29 . Of course the qualification of electors may produce a disparity between population and voters. But as was done in nearly all of the cases, see note 6, supra, we' assume in our case that population statistics fairly represent the electorate.

30 . The following discussion of the interim report of the Joint Legislative Committee on Reapportionment submitted to the Second Extraordinary Session of the New York Legislature on November 1961 is taken from Wright v. Rockefeller, S.D.N.Y., 1962, 211 F.Supp. 460, 462-464. Under the statement transmitted to Congress by the President (pursuant to 2 U.S.C.A. § 2a) following the 1960 census, New York was entitled to 2 less Congressmen than it had been allotted under the 1950 census. As a result of this change, the committee submitted its report, stating that reapportionment was needed in order to prevent at-large elections of the New York delegation. The report then detailed the history of the Congressional district system and the absence of standards in the Constitution or statutes of New York. The report then set forth the standards used by it in drafting its proposed apportionment. With great clarity, the report concludes that “the most important standard [in congressional apportionment] is substantial equality of population.” Recognizing that exact equality of population, although ideal, for practical reasons can never be obtained, it concluded that a permissible fair variation would be a maximum of 15 per cent, plus or minus. Finally, the report urged that, as an additional factor, districts be composed of contiguous territory and that metropolitan areas be preserved either in single districts or in contiguous and closely allied districts. As a specific example the report cites the situation regarding New York County (Manhattan) which, under its proposed apportionment, would receive approximately 1/10 of the Congressmen to match its 1/10 of the state’s total population.

31 . Of all the vexing problems bearing immediately on this specific subject, the Legislative witnesses stressed the regional rivalry between areas such as the El Paso-based District 16 and those in the northeastern part of the State. The problem is most spectacularly demonstrated by Districts 1, 4, and 13, which are immediately adjacent to District 5 (Dallas). These Districts have a total population of 789,094 or an average population of 263,031 in contrast to the 951,-527 population of District 5 (Dallas).

32 . Tex.Civ.Stat.Ann. art. 5429b (Vernon 1958).

33 . Tex.Const. arts. 3, § 5; 4, § 8.

34 . This is one of those rare cases in which declaratory relief alone would be unfair and even more harsh than an injunctive order. A mere declaration, without more, would leave State authorities in doubt as to what had to be done and, failing affirmative legislative action, would leave the validity of the 1964 elections under a considerable cloud.