Graves v. Barnes

378 F. Supp. 640

• Court: District Court, W.D. Texas
• Decided: May 28, 1974
• Docket: Civ. A. A-71-CA 142 to A-71-CA-145, A-73-CA-115, A-73-CA-146, A-73-CA-155
• Status: Published

Opinions

MEMORANDUM OPINION AND ORDER

PER CURIAM:

On December 13, 1971, this three-judge court was convened pursuant to the order of Chief Judge Brown to hear four suits attacking the constitutionality of the state legislative redistricting plan adopted by the Texas legislature in 1971. The original complaints alleged: (1) racial gerrymandering in the establishment of the Harris County Senatorial districts; (2) excessive population disparities among the state’s 101 House districts; and (3) invidious discrimination against certain racial and ethnic groups as a result of multi-member House districts in eleven counties.

In Graves v. Barnes, 343 F.Supp. 704 (W.D.Tex.1972), this Court upheld the validity of the Harris County Senatorial plan, found unconstitutionally high population variances in the House apportionment scheme, and ordered the implementation of single-member districts in Dallas and Bexar counties for the approaching 1972 elections. Though the plaintiffs did not withdraw their contentions concerning the unconstitutionality of the nine remaining multi-member districts in the Texas House of Representatives, under the press of time and by agreement of the parties ¹, no testimony was offered on these districts at the initial trial.

In White v. Regester, 412 U.S. 755, 93 S.Ct. 2332, 37 L.Ed.2d 314 (1973), the United States Supreme Court reversed our holding that the population variances in the 1971 House plan violated the principle of “one man, one vote,” but affirmed that portion of the decision requiring single-member districts in Dallas and Bexar Counties.² The Supreme Court then remanded this case “for further proceedings in conformity with the opinion of this Court.” On this remand the original plaintiffs and unchallenged intervenors have presented evidence of the effect of the nine multi-member districts on minority access to the political process, requiring us once again to wander through the political thicket.

Since the time of our consideration of the House districts in Dallas and Bexar Counties, the decisions of the Supreme Court in White and of the Fifth Circuit Court of Appeals in Zimmer v. McKeithen, 485 F.2d 1297 (5th Cir. 1973), and Turner v. McKeithen, 490 F.2d 191 (5th Cir. 1973), have provided considerable instruction on the proper standards of judgment when multi-member districts are alleged to deny racial or ethnic minorities equal protection of the law by denying them equal access to the political process. White, read along with its antecedents, descendants, and collaterals, has scythed much underbrush from the jungle to be penetrated in reapportionment cases. This path-clearing has permitted us to chart our way more securely along constitutional ground. White reaffirmed the teaching of Whitcomb v. Chavis, 403 U.S. 124, 91 S.Ct. 1858, 29 L.Ed.2d 363 (1971), that multi-member districts are not unconstitutional per se and emphasized that in order to show that multi-member districts have can-celled out or minimized minority voting strength, plaintiffs must

produce evidence to support findings that the political processes leading to nomination and election were not equally open to participation by the [racial or ethnic] group in question —that its members had less opportunity than did other residents in the district to participate in the political processes and to elect legislators of their choice. 412 U.S. at 766, 93 S.Ct. at 2339.

But in upholding this court’s finding of unconstitutional dilution in two multimember districts, the Supreme Court was afforded the opportunity to indicate, in considerably greater detail than had been possible in Whitcomb, precisely what political and demographic factors would support a finding of insufficient access and would therefore justify the ordering of smaller single-member districts in which the concentrated racial or ethnic group would make up a greater percentage of the district population.

I.

The Supreme Court first noted the political and social facts of life in Texas that this panel has found crucial to an understanding of the operation of multi-member districts in the state. Political access is not a vapid phrase confined within a rigid formula, but is frequently perpetuated by mores, folkways, and customs. In this area the Supreme Court has liberated us from any dichotomy of de facto and de jure. It is not necessary to establish that minority voters are being legally disenfranchised. We are permitted to explore the entire environment and to measure its political pollutants. Unlike Indiana, the state under consideration in Whitcomb, Texas has historically been a one-party state with a history pockmarked by a pattern of racial discrimination that has stunted the electoral and economic participation of the black and brown communities in the life of the state. The isolation of Mexican-Americans arising from such discrimination has been further exacerbated by cultural and language barriers. The all-white primary system, the poll tax, and the most restrictive voter registration procedures in the nation³ have left behind them a pattern of political apathy that continues to inhibit the participation of minority groups in the political process. In addition, the current electoral system, while no longer marred by the flagrantly discriminatory practices of the past, retains many features that were found in the original proceedings to facilitate minority exclusion. Texas requires that a candidate garner a majority of the vote in a primary election in order to receive party nomination. The state legislative races in particular are marked by a requirement that candidates from a multi-member district run for a specific “place” on the ballot. Since there is no matching provision that these places correspond to particular sections of the district in which the candidate must reside, the rule serves no function but to reduce the election to a series of head-to-head contests with a consequent emphasis on the racial element where it appears. Nor does there exist any rational state policy explaining the present use of multimember districts in any county.

Though these statewide conditions alone are not sufficient to demonstrate the invidious effect of multi-member districts in any particular county, they do provide a continuing background for specific findings on the positions of minority communities in the nine challenged districts. White and its progeny indicate that, given these general conditions, the plaintiffs’ burden is satisfied by proof of the existence of an “aggregate of factors,”⁴ including: (1) restricted access of minority groups to the slating of candidates for particular party nominations; (2) the consistent use of racist campaign tactics to defeat minority candidates or those championing minority concerns; (3) the indifference or hostility of the district-wide representatives to particularized minority interests ; and (4) the inability of minority groups to obtain representation in proportion to their percentage of the district population. No one element is the sine qua non of a finding of denial of access; nor must all be present in any given county. In order for a court to grant the requested relief, however, a combination of these factors must have the effect of fencing the minority out. A court must be shown the wire and enough of the barbs to make for an effective barrier.

Mindful of these factors, and on the basis of an “intensely local appraisal” of the impact of multi-member districts in each county, we have determined that in seven of the nine challenged districts the present multi-member scheme operates to deny black and brown voters access to the political process. We have reviewed each county from a contemporary vista, while always remembering that our todays are the products of our yesterdays. Here as in many constitutional thickets it has been wisely said that a page of history is worth a volume of logic.

A. DISTRICT 59 (HIDALGO COUNTY)

Plaintiffs conceded at trial that they were unable to produce evidence to prove that the two-place multi-member district in Hidalgo County operates to deny any racial or ethnic group access to the political process. On the record before us, there is no basis for a holding that the present legislative plan for Hidalgo County violates the constitutional guarantee of equal protection of the laws.

B. DISTRICT 32 (TARRANT COUNTY)

District 32 is contained entirely within Tarrant County, and encompasses 147 and a fraction of Tarrant County’s 161 census tracts. The total population of the district is 675,368, making it the largest remaining multi-member legislative district in the state; a delegation of nine represents District 32 in the House of Representatives.

The district’s population is 82% white, 12% black, and 6% brown. The mean annual family income of the district is $11,296, and the mean family size is 3.8. Deviations from these means, however, are pronounced in many of the eensus tracts. Tract 106.02, for example, comprises 96 families with a mean family income of $40,693 annually and a mean family size too small to appear in available statistics. Nearly one-third of Tract 106.02’s families have an annual income between $25,000 and $50,000, and nearly one-fourth enjoy annual incomes over $50,000; 98% of them are white. In Tract 54.02, 2,253 families have a mean annual family income of $26,825 and a mean family size of 2.61; there are no non-white families in the tract.

In contrast, the mean family income in Tract 11 is $4,437 annually and the mean family size is 4.62. Over one-third of the families in Tract 11 have annual incomes of less than $3,000. The population of that tract is 86% black, 10% brown, and 4% white. Families in Tract 17 have a mean annual income of $3,604 and a mean size of 4.56. Tract 17 residents are 95% black, 1% brown, and 4% white; a substantial majority of them receive incomes of less than $3,000 annually.

Twenty-five census tracts contain a population 30% or more black; thirteen are more than 75% black. Seven tracts have 30% or more Mexican-American residents. Thus, the black and brown populations of Tarrant County are, to a rather large extent, concentrated in identifiable geographic areas.

Tarrant County, like many Southern locations, has not historically been generous to its minority population. In the fifties, citizens’ groups resisted the desegregation of formerly all-white neighborhoods and community facilities. School desegregation has been a continuing source of conflict; resistance to the implementation of court-ordered plans persists to the present. Recently, property owners and developers in affluent neighborhoods have endeavored to prevent the building of low-or moderate-priced housing in their areas; a group in the Richland Hills neighborhood has threatened to file suit in federal court to keep the area from getting “more than its share” of low-priced subsidized housing.⁵ Suburban areas especially have discouraged black families from settling, as evidenced by the recent unabashed public declaration of one outlying resident that people like his town because there are “no city taxes and no nigras”.⁶

Racial discrimination is not confined to a vocal few. The evidence establishes, for instance, that black candidates who obtain the endorsement of the powerful labor-liberal coalition in Tarrant County are nevertheless doomed to failure because of the refusal of rank-and-file laborers to vote for a black, even a black endorsed by their unions’ leaderships. Racial factors are important even in races between whites. A recent legislative candidate who trailed his opponent in the first primary overcame the opponent’s lead in predominantly white areas and won the runoff after a hasty leafletting campaign designed to appeal to white voters’ fears of “forced” busing to achieve school desegregation. In summary, District 32 and its environs has been no oasis in Texas’ “colorful history of racial discrimination;” nor has recent progress healed the wounds of history. Black and brown citizens have been, and continue to be, victims of racial discrimination in Tar-rant County.

In light of historical and continuing racism in District 32, it is not surprising that black and brown candidates for office have met with small success. Indeed, the outlook for black candidates was so generally bleak that no black ever ran for the legislature from District 32 until 1968. Since that time, three blacks have sought seats in the House of Representatives ; none have been successful. Charles Grays sought the Democratic nomination (which is tantamount to election, since no Republican has ever represented District 32 in the House) in 1968. One of the important local factions, the labor-liberal-minority coalition, slated and endorsed Grays. He was told by the slate-makers, however, that he could not win and that they did not expect him to win; they placed him on the slate as token opposition to a strong incumbent and to attract black and brown votes for other slated candidates. He received less money from the coalition than other candidates on. the slate and, as expected, lost — with an overwhelming majority of the black vote and a very small number of white votes.

Bobby Webber, a wealthy black businessman, ran for the Democratic nomination in 1972, with the endorsement of the labor-liberal coalition. Webber, however, was not a recruit of that coalition, and like Grays he received considerably less support — financial and otherwise — from the group than did white candidates. He financed his campaign primarily with funds he raised himself. Webber made an impressive showing in the primary, gained the runoff, and garnered about 46% of the vote. Several factors, however, suggest that his relative success is no sign that the voters of Tarrant County are prepared to elect a black to the legislature. Webber apparently eschewed television campaigning and concentrated his resources on newspaper advertising in an effort to leave many voters ignorant of his color. He spent nearly three times as much money in the campaign as his opponent, Tom Sehieffer, a 24-year old white; Sehieffer was not an incumbent. Webber took positions on major issues that were attractive to many white and middle-class voters. Despite these efforts, he was ultimately unsuccessful. He polled an enormous majority among black and brown voters but lost heavily in white areas. Rather than indicating that Tarrant County is a relatively promising environment for black aspirants to office, Webber’s experience demonstrates that even a black with many advantages, much money, and an Anglicized image cannot succeed in an at-large legislative race in District 32.

The third black candidate to run during the years 1968-72 was Charles Gas-kins, a candidate in 1972. Gaskins was even less successful than Webber or Grays, in part because the black Precinct Workers Council did not endorse him and his opponent was well-known and popular. Like Webber and Grays, however, Gaskins made a much better showing in black and brown voting boxes than in predominantly white boxes.

Two brown candidates have in recent years sought the Democratic nomination for the legislative seat from District 32. Robert Ramirez offered himself on one occasion, and was placed on the labor-dominated slate. A Tarrant County labor leader testified that the labor group “supported him to help turn out the Chicano vote with the full knowledge that we didn’t have a chance to win.” On another occasion, the labor group refused to support Harold Valderas and endorsed his opponent George Richardson, because Richardson “has always been a good friend of organized labor”. No Mexican-American candidate has ever been successful in securing a seat in the District 32 delegation.

The evidence shows that two organizations “slate” or endorse legislative and other candidates in Tarrant County, and that support by one group or the other is necessary to elect any candidate to the House of Representatives. No candidate in recent history has ever been sent to the House without identification with one of these two slates.⁷ No witness disputed the existence of a labor-liberal minority coalition that regularly recruits, interviews and endorses candidates. There is some disagreement about the nature of the so-called “Seventh Street” group, reputedly a coalition of businessmen who recruit and support candidates on behalf of local business interests. Two experts who testified expressed the opinion that the Seventh Street group is a well-organized and powerful force in Tarrant County politics. A local politician, however, declared the Seventh Street group “mythical.” Yet the degree to which the Fort Worth business community is an organized formal political council, as contrasted to a loose affinity grouping of individuals and institutions, is not the quantum of evidence required to support a conviction in a criminal conspiracy case. It is sufficient to observe that Fort Worth businessmen and mercantile institutions form a natural community of interests and that some of them lend their support — public or private, financial or moral — to individuals seeking office. The evidence is undisputed that at no time has the business community supported, collectively or otherwise, the candidacy of a black or brown person.

The impact of this dual slate-making process is significant. A Fort Worth labor leader, whose testimony was not controverted, stated that he and other labor leaders met with representatives of the business community in 1962 and agreed that neither group would endorse candidates who opposed the other group’s favorites. In effect, each group “conceded” some races to the other. This incident speaks eloquently of the very real power of the business group as a political force as well as the impossibility of succeeding as a candidate in District 32 without the support of one group or' the other.

The virtual political impotence of District 32’s minorities has had several effects. Among the most important is the legislative delegation’s lack of enthusiasm for initiating legislation fashioned for the “particularized needs” of blacks and browns in the district. Among the issues to which the delegation has displayed indifference are day-care, fair housing, civil rights, desegregation, job discrimination, prison reform, and welfare reform. Although many of the representatives voted for such measures as a bill giving an injured employee the right to be compensated for medical care by the physician of his choice and the open meetings law, there was testimony that neither issue was of particular moment to minority persons. It is likely that the delegation’s support for these measures may be attributed to the allegiance that many of the representatives bear to the interests of organized labor. Although the delegation voted unanimously for a bilingual education bill and a bill permitting interracial child adoption, no District 32 member originated or worked actively for the passage of that legislation. A majority of the delegation voted for a city and state sales tax, a tax opposed by vocal minority organizations. One representative voted against the creation of a state holiday honoring Dr. Martin Luther King. The significant observation about the performance of the District 32 delegation, however, does not pertain to its votes on legislation that has already reached the voting stage; it is the consistent failure of the members to devote time and effort in bringing legislation that meets minority needs to the floor. One particularly striking example is the delegation’s failure to prevent the closing of the Narcotics Addict Rehabilitation Administration facility in Fort Worth for lack of funds.

A second result of minority powerlessness in District 32 is a most subtle form of disenfranchisement: alienation.⁸ Statistics comparing the participation of registered voters in selected predominantly black and predominantly white precincts reveal that in 1970, black turnout in primary elections was 28% compared to a white turnout of 38 %; the percentages for the general election were 43% and 59% respectively. In 1972, 40% of black registered voters and '51% of white registered voters in those precincts participated in the primary; black turnout was 53% versus 70% of white voters in the general election. The effect of blacks’ lower participation,⁹ coupled with the fact that blacks also register in smaller proportions, creates an almost overwhelming handicap to a minority candidate or one who commits himself to the interests of minorities. Thus the process spirals endlessly. History and powerlessness create apathy and unresponsive representatives : unresponsiveness breeds more apathy, apathy more powerlessness and unresponsiveness. Not only those who do not learn from history, but also those who are trapped by history, are condemned to repeat it.

In Turner v. McKeithen, supra, the Fifth Circuit found the following factors “entitled to consideration” in declaring unconstitutional a multi-member district drawn for the election of a police jury in Quichita Parish, Louisiana: continuing effects of past discrimination on minority participation in political activity ; opportunity for minority persons to participate in the selection of candidates ; responsiveness of elected officials to the particularized needs of minority persons; and -the strength or tenuousness of the state interest in preserving multi-member districts. In District 32, we find past discrimination and its vestiges exercising a continuing cheek on minority registration, voting, and candidacy. We find powerful interests “slating” candidates without consulting minority representatives and without reference to minority interests, and we find that a candidate not slated has virtually no hope of election. We find, in general, that delegations past and present have not demonstrated a commitment to the representation of minority interests. This lack of access to the political process is enhanced by the size of District 32, which is the largest remaining multi-member district in the state. The Fort Worth dual school system, like the one in Ouachita Parish, was abandoned only under court order, and school desegregation remains a controversy in Tarrant County generally. Just as no black has served on the Ouachita County Police Jury since Reconstruction, no black has represented District 32 in the Texas legislature. Moreover, in District 32 there is a clear pattern of “unresponsiveness,” a finding that the court explicitly declined to make in Turner.

In Zimmer v. McKeithen, supra, the Fifth Circuit concluded that a finding that some minority group members had been elected to office does not foreclose the inquiry into other factors bearing on the constitutionality of the multi-member district. In District 32, of course, we have found, in addition to all other factors, that black and brown candidates have been unanimously unsuccessful. In summary, the plaintiffs have clearly proved that District 32 works unconstitutionally to “cancel and minimize” minority voting strength according to the standards in White v. Regester, supra, Zimmer v. McKeithen, supra, and Turner v. McKeithen, supra.

C. DISTRICT 7 (JEFFERSON COUNTY)

District 7, which contains 90% of the population of Jefferson County, sends a delegation of three members, elected district-wide, to the House of Representatives. The population of Jefferson County is 25% black and 4%% brown. Since the portions of the county excluded from the multi-member district are overwhelmingly white, blacks comprise approximately 30% of the district’s population. This sizeable black community is largely concentrated in ghetto areas of Beaumont and Port Arthur, the two significant urban centers in the county.¹⁰ No resident of these ghetto areas, indeed no black man or woman from any part of the district, has been elected to a district or county-wide office since the turn of the century.

We find that in the Jefferson County multi-member district virtually every element contributing to the dilution of the minority voice in representative government is present. Though all of Texas has to some degree suffered the blight of racial discrimination, the attempts of the black community in Jefferson County to eliminate the vestiges of slavery have been met by particular turbulence, animosity, and recalcitrance. In 1963, black citizens of Jefferson County were forced to resort to picket lines in order to obtain their children’s admission to the municipally sanctioned Southeast Texas State Fair. Until that same date, the public libraries in the city of Beaumont were closed to black patrons. As late as 1967, the local newspapers continued to list available real estate according to the desired race of prospective buyers. It was only after passage of the Civil Rights Act of 1964 that blacks were employed by the Jefferson County government as anything other than janitors. The record sounds mere echoes from Brown v. Board of Education, 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954), and the rising decibels orchestrated by that case are barely audible in Jefferson County. Nearly twenty years after that historic decision the Beaumont Independent School District continues to operate seven all-black schools and persists in busing black children past neighborhood schools to attend all-black schools on the other side of town. Educational segregation is a factor in political isolation in the county.

Of even greater significance to the political position of the black community has been the county’s history of racial discrimination in employment and labor union activity. The Beaumont-Port Arthur area is heavily industrialized, with refineries and petro-chemical plants dominating the economic scene. Until the mid-1960’s, the hiring and promotion practices of these plants were racially motivated, and blacks were relegated to menial positions. The union locals were also separated on the basis of race, and even after their merger, plant seniority reflected the dominant racial attitudes. The newly integrated black workers were placed at the bottom of the seniority ladder.

The gradual elimination of these segregated labor practices, frequently as the result of court orders ¹¹, has brought with it an increasing degree of racial hostility in the community. This bitterness in the ranks of labor holds particular significance for the opportunity of blacks to participate in the current district-wide elections for state representatives. Jefferson is a one-party county. Any group desiring to have an impact on the political process must operate through the Democratic party machinery, and organized labor is the principal force in the county Democratic party. The endorsement of the local council of the Committee on Political Education (COPE) of the AFL-CIO has been characterized as “tantamount to election.” The record shows that COPE-supported candidates have suffered defeat in county or district-wide elections only when extraordinary personality conflicts have divided the labor vote. Although the labor committee that passes on political candidates does not usually solicit people to run for office, it does interview those who have indicated a desire to run and then prepares a slate of candidates. No black man or woman has ever appeared on these slates. This neglect of nearly one-third of the constituency of the three-member district has not been accidental. When called upon to explain their lack of enthusiasm for black candidates, the local labor leaders reported to the State AFL-CIO and the local black community that they would not support a black because of the racial hostility of their predominantly white membership. There can be no doubt but that this marked opposition has both prevented black legislative victories and discouraged potential black candidates from entering the field.

The effect of white hostility on campaign strategies and voting practices has been well demonstrated on the three occasions when black candidates have run for county or district-wide offices. In 1964 and again in 1972, A1 Price ran for the Democratic nomination for the Texas House. In both campaigns he received overwhelming support in the black community but lost the race due to strong opposition in the white sections of the district. Elmo Willard ran in 1966 for County Commissioner and went down to defeat as the result of startlingly similar voting patterns. Both campaigns were marked by the use of racist tactics in the white areas; the election of 1966 brought armed white deputy sheriffs to the polls in the black residential sections of the county.

Those candidates elected to the legislature from Jefferson County, while not in recent years openly hostile to the interests of the sizeable black community, have been both insensitive and unresponsive to the particularized needs of a segment of the population plagued by official and private discrimination. The District 7 representatives have had little contact with the political or social institutions of the black community. The State’s one witness on District 7, Representative Terry Doyle, was entirely unaware of the degree of segregation in the Beaumont public schools.

In Dallas County this Court found that the multi-member district operated to deny minorities access to the political process where the district-wide nominations were controlled by a single white-dominated organization, albeit an organization that occasionally sought out black candidates. In Jefferson County we are faced with no less determinative a slating body, which follows a demonstrable policy of avoiding input from the black community. In Dallas, minority access to the nomination and election of state representatives came as a matter of white largesse; but in Jefferson access comes not at all. We find that the creation of three single-member districts out of the present District 7 is essential to black participation in the nomination and election of state representatives.

D. DISTRICT 35 (McLENNAN COUNTY)

District 35 is coterminous with Mc-Lennan County, and includes the city of Waco as well as some rural areas. The district’s population is 147,533 and two members represent it in the House of Representatives.

The Brazos River runs through Waco, dividing about one-sixth of the city from the remainder. Waco’s black population is heavily concentrated in the small sector east of the river. Some neighborhoods immediately west of the river have also become predominately or heavily black in the last decade. The most central areas of the city contain the only substantial concentrations of Mexican-American population. Census figures for 1970 show that black citizens constitute approximately 20% of the population of the city of Waco and 16% of the county as a whole. Approximately 7% of the county’s residents are Mexican-Americans. The percentage of blacks in various Waco census tracts ranges from zero to one hundred. Only nine of the thirty-two census tracts in the city of Waco have a black population greater than 5% but less than 60%; in other words, Waco neighborhoods, for the most part, are overwhelmingly white or predominantly black. (Residential figures for Mexican-American or Spanish-surname persons were not presented to the court.)

Waco’s history of racial discrimination is no less blatant and pervasive than that of other areas in Texas. In a referendum in 1956, 81% of the voters in Waco expressed a preference that their school system remain segregated, and majorities almost as large voted for “specific legislation perfecting State Laws against intermarriage between white persons and negroes [sic]” and “the use of interposition to halt illegal federal encroachment.”¹² In that same year, one of Waco’s daily newspapers ran the following passage, not as a commentary, but rather as a straight news story about the state’s efforts to enjoin the activities of the NAACP:

The sworn testimony and evidence take NAACP completely out of the aspect of crusading zeal. Not without reason does News Columnist Landrum identify it as the National Association for the Agitation of Colored People. NAACP in the South does not represent a Negro movement, practically every move to change the racial mores of the section has come from the outside, has been directed from the outside and financed from the outside. . . . NAACP is wrong sociologically in its stand and its activities. In a free country, every person is as entitled to his personal prejudices as to his so-called civil rights.¹³

Uncontradicted eyidence revealed a curious incident in Waco’s political past: The Waco City Council elections were conducted by wards for the first time in 1948. In 1950, a black ran for the council from one of the wards and was nearly, but not quite, successful. Immediately after the new councilmen took office, they acted by resolution to change the council voting system back to at-large, in order to alleviate the threat of a black council member. This at-large system remains in effect.

Controversy over the desegregation of Waco schools has given rise to several rounds of litigation, one of which is still in the courts. There are a few black organizations in Waco, but they have not met with much success in influencing local politics. There was evidence that when Waco officials feel that they must consult representatives of the minority community on some issue, they choose a committee of hand-picked blacks whose views do not contrast strongly with the views of the dominant majority. In addition, indigenous black organizations are misquoted and misrepresented by the media, to the extent that their credibility among both their constituents and others is destroyed. In general, the climate in McLennan County is so unfriendly toward aggressive black political activity that the witnesses all agreed that the mood of black Waconans is one of despair, apathy, and discouragement.

McLennan County does not have groups that slate and sponsor candidates like the labor and business groups m Tarrant County. Yet as in Tarrant County, no black in McLennan has ever been successful in a bid for a legislative seat. Indeed, in McLennan no black has ever run for the legislature; one witness testified that none had ever even considered such a race. There have been two black city councilmen in the city’s history, one of whom currently sits on the council. Black councilmen, however, apparently have not acted as effective spokesmen for black and minority interests. One of them was elected in a race against another black, and lost by a margin of three to one in black polling places but won heavily in white areas. Thus, he was elected by whites and owed a political debt to them, rather than to black people. Two Mexican-Americans have run for the council but neither was successful.¹⁴

Although there is no evidence that past McLennan County delegations have often voted contrary to the wishes of minority citizens, a former representative who supported the needs of the economically disadvantaged generally, testified that he could not recall any legislation aimed specifically at vindicating the interests of minority groups that he or other District 35 members had originated or carried. Thus the McLennan County delegation does not have a record of affirmative legislative initiatives on behalf of the particularized needs of minority persons in the district.

All of these factors — past history of discrimination resulting in continuing lack of minority political participation, demographic and geographic factors, the failure of the few bids of minority candidates, and the present representatives’ lack of commitment to the particularized needs of minorities — present a persuasive pattern of cancellation and minimization of minority voting strength. The most striking element in McLennan County, however, is the absolute despair and apathy felt by most of the county’s minority residents. There was testimony that blacks in particular vote in very small numbers, the single exception being races in which a black is a candidate. A former representative said: “It doesn’t make any difference who runs, they feel they are not going to get much out of it one way or the other, so they just quit voting.”

Thus we find that in District 35 all of the factors that persuaded the Fifth Circuit in Zimmer and Turner and the Supreme Court in Regester are present in full measure. The use of a multimember district in McLennan County operates to cancel or minimize minority voting strength and cannot survive constitutional attack.

E. DISTRICT 37 (TRAVIS COUNTY)

District 37 comprises all of Travis County. It has a population of some 300,000, of which 250,000 is contributed by the City of Austin, the State capital. Travis sends a delegation of four to the House of Representatives. The population of the county is approximately 20% brown and 12% black. Yet no black or Mexiean-American has ever been elected to the Texas legislature from the Travis County multi-member district.

Travis County legislative electioneering is not controlled, as is the case in Tarrant and Jefferson counties, by one or two formal slate-making groups. However, the Democratic party is the one continuing and significant political force in the county,¹⁵ and a coalition of Austin businessmen and state capítol lobbyists have generally controlled the local party mechanism. The black and Mexiean-American minorities in the county are not represented in this dominant group. The leaders of the minority community are not consulted on the question of selection and support of particular candidates for the legislature, or any other offices. Indeed, the testimony indicated that the black community frequently learns of decisions on the upcoming elections from black waiters who serve at the meetings where such conclusions are reached or discussed.

This initial political isolation has been deepened by the geographic and social separation of the black and MexieanAmerican communities from the dominant Anglo section of the county. Nearly all minority residents in Austin live on the east side of Interstate Highway 35. The churches, civic clubs, athletic teams, and other social institutions of this area are almost entirely black or Mexiean-American. Access to the social institutions of the Anglo community, which is crucial to the development of the information and contacts necessary for a political career in Travis County, is not available to the inhabitants of the ghettoes and barrios of Austin.

This pervasive isolation from the dominant community has affected not only the ultimate success of minority candidates at the polls, but also the willingness and opportunity of blacks and Mexiean-Americans to offer themselves for public service. No black has ever sought the Democratic nomination for the legislature from Travis County, and only two Mexican-Americans have garnered sufficient financial and other support to attempt the race. Both of these efforts at minority participation in the elective process met with defeat despite overwhelming support from black and brown voters following campaigns marked by appeals to the racial fears and hostilities of the sizeable white majority. The same racially oriented tactics have been used in primary campaigns against those Anglo candidates thought to identify with minority interests. When minority candidates began to achieve some success in city elections in Austin for the school board and city council in the early 1950’s, those bodies altered their election method. The procedure was changed from one in which all candidates ran city-wide, with those accumulating the highest totals winning election, to a place system with a majority vote requirement — a procedure identical to the present legislative scheme. This device operated to shut off serious black or brown challenges until the late 1960’s. Although a black man currently serves on the Austin city council and a black woman occupies a place on the school board, both victories are more accurately attributed to the largesse of the Anglo community than to significant black participation in the political process.¹⁶

The representatives elected from the Travis County multi-member district, while not uniformly hostile to the particularized needs of minority residents, have evidenced an indifference to the serious problems confronting this constituency. This is especially significant in that one of the most pressing minority concerns, equal employment in the agencies of state government located in Austin, is peculiarly susceptible to amelioration by state representatives. But the only movement in this regard has come from minority representatives elected from single-member districts in other parts of the state.

We find that virtually every factor present in the Dallas and Bexar County multi-member districts is identifiable in District 37. There can be no justification for our holding acceptable in Travis that which was unconstitutional in districts to the north and south.

F. DISTRICT 75 (LUBBOCK COUNTY)

District 75, which includes Lubbock County, has a population of approximately 147,722 people and sends two representatives to the House of Representatives. Approximately 7.4% of the county’s population is black and approximately 17.33% is brown, making a total minority population of 24.73%. The bulk of the black and brown population resides in the northeast quadrant of the district, with a portion of the predominately brown population spilling over into the northwest quandrant and a portion of the predominantely black population extending into the southeast quandrant.

Formerly a small ranching town, Lubbock, the principal city located within District 75, exploded in a period of growth at the beginning of the twentieth century with the convergence of two groups. The first were Anglo cotton farmers, largely from East Texas, which introduced the Southern, rural culture. The second were the MexieanAmericans, who worked in railroad construction and maintenance until the development of cotton farming. As the cotton industry developed, the MexieanAmericans became the migratory field workers, coming first from New Mexico and Texas in the early 1900’s, and coming again in later waves in the 1950’s. With the growing mechanization of cotton farming in the 1950’s and 1960’s, the former migratory workers began to take up permanent residence in Lubbock. Thus, not unlike the blacks in the deep South, the Mexican-American in Lubbock County was received by most of the dominant Anglo population not as a fellow human being, but — in the words of one historian — as

a species of farm implement that comes mysteriously and spontaneously into being coincident with the maturing of the cotton, that requires no upkeep or special consideration during the period of its usefulness, needs no protection from the elements, and when the crop has been harvested, vanishes into the limbo of forgotten things — until the next harvest season rolls around.¹⁷

Blacks and browns residing in Lubbock County have long suffered from,¹⁸ and continue to suffer from, the effects of racial discrimination. A dual school system, officially ignored until a 1970 federal court order, see United States v. Lubbock Independent School District, 316 F.Supp. 1310 (D.Tex.1970), coupled with the obvious language barrier, has made a significant impact on the education level of Mexican-Americans. Approximately 60% of the Mexican-Americans drop out of school before the eighth grade, and less than 10% finish high school. Although one-fourth of the pub-lie school students are brown, only about eighteen Mexican-Ameriean graduates of the Lubbock Independent School District have received a college degree, and fewer than .3% of the entire brown population in the county are college graduates. Since very few of the public school teachers are able to speak Spanish, the verbal testing used to classify students for Educational Mentally Retarded (EMR) classes is unreliable and a disproportionate number of Mexican-Americans are assigned to those classes. Although the speaking of Spanish on school grounds — forbidden until 1968— is now permitted, enthusiasm for bilingual education may be inadequate: the director of that program in the Lubbock Independent School District speaks no Spanish.

Discrimination against Mexican-Americans in areas other than education continues. Browns were restricted to the balconies of motion picture theatres in the mid-1960’s, refused admittance to public swimming pools as late as two years ago, and turned away from other public facilities as recently as last year. Moreover, the testimony was uncontradicted that from one-fourth to one-half of the Anglo population of Lubbock County still stereotypes the Mexican-American as lazy, emotional, and unmotivated.

The economically depressed Mexican-American population is largely confined to the north and northeast portions of the county. The median family income in this area is $3,500 per year lower than that in other areas of the county and over 28% of these families have income below the poverty level. The Mexican-American home in this section of the county is valued on the average at $6,766.00, compared with the countywide average of $12,900.

Not unexpectedly, this pattern of pervasive racial discrimination and economic depression, particularly when it is imposed on a Mexican-American minority that constitutes only 17.33% of the county population, affords the brown population, as well as the 7.4% black population, little if any opportunity to participate in the political process leading to election of state legislators. Thus, no Mexican-American has ever run in any district-wide race, and the state’s witness could recall only one Mexican-American who had ever been elected to public office in the last ten years — a constable in a Justice of the Peace precinct. Political awareness in the Mexican-American community is generally. low; only 12% could name one of their state representatives, and only 4% could name their state senator. Although voter turnout recently has averaged more than 40% of those registered to vote, only 16.8% have ever attended a political meeting and only 11.3% have ever worked in a political campaign. Moreover, a former county Democratic chairman from Lubbock County (and the state’s only witness to appear regarding this district) testified that at least 25% of the population in the district would vote against a Mexican-American solely on the basis of race. He further testified that he favored single-member districts in the school board elections, in order to give adequate representation to blacks and browns. Finally, when asked to comment regarding the various factors that contributed to the denial of an opportunity on the part of Mexican-Americans to participate in the political process, he affirmed that ethnic origin, education, and cost of running for office all operated to deny access to the political process. Dr. Charles Cotrell, a professor of political science who testified as an expert witness for the plaintiffs, concluded that

The Lubbock County minority populations are . . in a traditional posture. That is, they are almost totally quiescent. There is apparently a great deal of hopelessness and despair, a great deal of alienation reflected in the attitude studies . . . There is very little hope as far as any kind of real participation rate and participation in politics. You find, for example, very few active minority members in politics in Lubbock County.

Thus the nearly total lack of opportunity on the part of this small Mexican-American minority to participate in the political process is clear.

G. DISTRICT 72 (EL PASO COUNTY)

District 72, which comprises most of El Paso County, has a population of approximately 297,770 people and sends four representatives to the House of Representatives. Approximately 56.87% of the county’s population is brown and approximately 2.8% is black; the combined population is 59.67%. El Paso County is nestled in the western corner of Texas on the Mexican border and extends in a southeasterly direction along the Rio Grande River, much like a long tail. The greatest concentration of Mexican-Americans lies in the southern portion of the county and follows the Mexican border from the top of the county southward to the tip of the county.

Often referred to as the barrio, this strip along the Rio Grande River contains slightly less than half the county’s total population but almost two-thirds of the Mexican-American population. Over 80% of the people in the county who have never attended school reside in the barrio. The 1970 report by the United States Department of Health, Education, and Welfare reveals that El Paso County had made little progress in eliminating the dual school system. At the time of the report, over 60% of the Mexican-American public school students still attended racially identifiable schools — that is, schools with an excess of 90% black or brown population. This report further revealed that school board decisions regarding construction and renovation of facilities and the drawing of attendance zones had the effect of maintaining and promoting the dual system of education, and that in the few integrated schools, the introduction of so-called ability groupings and tracking practices had retained the effects of segregation. The report further noted that the school district had failed to actively recruit black and brown faculty and administrative personnel, with the result that of the 48 counselors employed by the district, only 4 were brown and none were black; that of the 27 librarians, none were black or brown; and that of the 62 principals, only 8 were brown and one was black. The curriculum emphasis varied, according to this report, from predominately Anglo to predominately Mexican-American schools, so that the former emphasized college preparation and the latter vocational training.

The barrio is an area of economic depression and substandard housing and plumbing facilities. Nearly twice as many families in the barrio, or approximately 24%, live below the poverty level as compared with the rest of El Paso County. Approximately 17% of the barrio housing units lack plumbing facilities, contrasted with approximately 2% for the rest of the county; and the value of the average barrio house is approximately $10,000 — or about $3,000 less than the county-wide average.

Although Mexican-Americans constitute approximately 52% ¹⁹ of the county’s population, this finding alone does not foreclose inquiry into other factors indicating that Mexican-Americans in District 72 have less opportunity than other residents in the district to participate in the political processes and to elect legislators of their choice.²⁰ First, Mexican-Americans constitute only between 20 to 38% of the registered voters ; and of this number, only 35 to 50% actually vote. The low level of registration and turnout is due largely to the lingering intimidation of Mexican-Americans since repeal of the poll tax and restrictive registration measures, as well as to a language barrier that presents obvious communication problems. Moreover, intimidation of Mexican-Americans under law has been replaced with more subtle forms of demoralization. For example, during voter registration drives in the late 1960’s, the county tax-assessor, although a Mexican-American himself, attempted to place unreasonable limits on the number of deputy-voter registrars and often refused persons access to the voter registration books. He also declined to accept voter registration cards unless they were mailed by the registrant or submitted personally by the registrant. Thus, he rejected any submission, either by mail or by a deputy-voter registrar, of registration forms in bulk form. Furthermore, a number of large employers in the county denied voter registrars access to their employees, many of whom are Mexican-American, during lunch hours or other employee breaks.

Second, of the fifty different legislators elected in El Paso County since 1886, only four have been Mexican-Americans. Both the Republican and the Democratic County Chairman admitted that racism, particularly so-called “whisper campaigns,” played a large part in the defeat of Mexican-American candidates. One of the state’s witnesses, a Mexican-American active in El Paso political campaigns, testified that in his view racism had lessened but admitted that only last year in the race for mayor a Mexican-American lost to an Anglo because of a racially-based campaign. The Mexican-American was characterized as “un-American” by his opponent because of his participation in Chicano organizations such as the Mexican-American Youth Organization, an activist political group.

Third, although no slating process exists for legislative races, a very strong and successful slating process has operated for the at-large city elections for nearly twenty years and is responsible for the success of Mexican-American candidates at that level. This slating group, an informal group of businessmen, usually chooses one or two Mexican-Americans from the business community. The group has been very successful, losing only two races for mayor in the last twenty years. At the present, for example, the mayor, who is an Anglo and the owner of a major food chain, was elected on a slate with two Mexican-Americans — one a home developer and the other an insurance agent.

Fourth, none of the Mexican-Americans elected to public office, whether local or legislative, have lived in the barrio. For example, in a recent race for the State Senate, two Mexican-American candidates, both former state representatives, faced each other in the runoff for the senate seat. Both lived outside the barrio; and Tati Santiesteban, the winner, was endorsed by a previous incumbent, an Anglo, who chose not to run.

Fifth, the El Paso County delegation has not been responsive to the particularized needs of Mexican-Americans. A case in point is Frank Owen, a witness for the state, who was a State representative from 1950 to 1954 and State senator from 1954 through 1965. Owen testified that he actively sought the support of the Mexican-Americans in his races but voted against repeal of the poll tax. He further testified that, other than the teaching of Spanish in’the lower grades in school, he could think of no legislation he proposed relating to the particularized needs of Mexican-Americans.

Finally, a candidate’s campaign expenses in a county-wide or district-wide race in El Paso County are substantially higher than those for a race in the smaller, single-member districts, such as one of the County Commissioner’s precincts. Unlike candidates for the legislature, candidates for one of the County Commissioner’s seats have not, in the past, relied on expensive television coverage. This difference has probably contributed, at least in part, to the comparative success of Mexican-Americans in races for County Commissioner. While only four Mexican-Americans have been elected State representative, seventeen have been elected to the Commissioners’ Court, the governing board of the county.

In view of these considerations, we are persuaded that the Mexican-Americans residing in District 72 have less opportunity than other residents in the district to participate in the political processes and to elect legislators of their choice.

H. DISTRICT 48 (NUECES COUNTY)

District 48, which encompasses most of Nueces County, has a population of approximately 220,056; the district elects three representatives to the House of Representatives. Approximately 43.-58% of the county’s population is brown and approximately 4.6% is black; the total minority population is 48.22%. The bulk of the Mexican-American population is confined to the southwest portion of the district and to a corridor running in a northeasterly direction. Within Corpus Christi, the principal city in the district, this latter area is generally referred to simply as “the corridor”.

Nearly a third of the families living in the corridor exists on a level of income below the poverty level, while only 7% of the families in the rest of the county live at the subpoverty level. Approximately 11% of the corridor homes lack some or all of the plumbing. The average value of a house in the corridor is approximately $7,000, or approximately $4,000 less than the county-wide average.

The education level of the corridor residents lags behind that of the residents of the other portions of the county. Although the corridor contains only approximately one-fourth of the persons 25 years of age or older, it contains 85y2% of such persons who have completed no schooling whatsoever. Moreover, only approximately 3% of the persons living in the corridor have a college education, as compared with approximately 15% in other areas of the county. In Cisneros v. Corpus Christi Independent School District, 324 F.Supp. 599 (D.Tex.1970), affirmed in part, modified in part, and remanded, 467 F.2d 142 (5th Cir. 1972), the court held that Mexican-Americans constituted an identifiable ethnic class and that in the Corpus Christi Independent School District, located within Nueces County, Mexican-Americans were subjected to de jure and de facto segregation and a dual school system in violation of the Fourteenth Amendment. Specifically, the district court concluded that

[the] dual school district has its real roots in the minds of men; that is, the failure of the school system to anticipate and correct the imbalancing that was developing. The court is of the firm opinion that administrative decisions by the school board in drawing boundaries, locating its new schools, building new schools and renovating old schools in the predominately Negro and Mexican parts of town, in providing an elastic and flexible subjective, transfer system that resulted in some Anglo children being allowed to avoid the ghetto, or “corridor” schools, by bussing [sic] some students, by providing one or more optional transfer zones which resulted in Anglos being able to avoid Negro and Mexican-American schools, not allowing Mexican-Americans or Negroes the option of going to Anglo schools, by spending extraordinarily large sums of money which resulted in intensifying and perpetuating a segregated dual school system, by assigning Negro and Mexican-American teachers in disparate ratios to these segregated schools, and further failing to employ sufficient number of Negro and Mexican-American school teachers, and failing to provide a majority-to-minority transfer rule, were, regardless of all explanations and regardless of all expressions of good intentions, calculated to, and did, maintain and promote a dual school system;

Cisneros v. Corpus Christi Independent School District, supra, 324 F.Supp. at 617-620.²¹

The United States Commission on Civil Rights in a study entitled “Mexican-Americans in the Public Schools of the Southwest,” April 1971, reported that many Texas school boards, at the time of its report, refused to enforce the state compulsory attendance law against Mexican-American children in order to avoid forcing large numbers of them to attend school with Anglo students. One school authority in Nueces County was quoted as saying “The trustees say ‘We have too many Mexicans [in school] now. Don’t build up the Mexican enrollment.’ ” Accompanying this racial discrimination in education is a history of other forms of discrimination in Nueces County, including the refusal to sell homes to Mexican-Americans because of restrictive covenants, the maintenance of separate wards for Mexican-Americans in the hospitals, and the maintenance of separate record-keeping procedures for Mexican-Americans by the Corpus Christi Police Department and Department of Public Safety as well as the Department of Public Welfare.

As in our analysis of District 72, which comprises most of El Paso County, the finding that the total minority population in Nueces County is 48.22% and that since 1964, the Nueces County delegation to the House of Representatives has included at least one Mexican-American every term but one, does not foreclose our inquiry into other considerations indicating that Mexican-Americans, as well as blacks, have less opportunity than the other residents in the district to participate in the political processes and to elect legislators of their choice. One such consideration is the significant part played by racially motivated campaign tactics. In the early 1950’s school board elections in Corpus Christi were conducted on a plurality basis, with “single shot” voting permitted. Under this system Mexican-Americans were able to elect one Mexican-American representative on the school board. Although the presence of one Mexican-American on the school board had been tolerated by the white majority for a number of years, the attempt by a second Mexican-American in 1952 to gain a seat on the board motivated racial opposition. One such group, calling themselves Friends of Our Public Schools, urged voters to consider that

Now, and for many years past, our Latin American friends have had one of their own race on the School Board, —as is frankly agreed by all fair thinking people that they should have. However, this present Latin American member still has two (2) years to serve on his current term, and naturally it was the thought that our Latin American friends would make no attempt to put an additional member on the School Board at this time,- — • and certainly not for the specific purpose of attempting to defeat an experienced Anglo-American member for a second term. But such does not seem to be the case, for in the March 17th issue of the Latin-American publication “La Verdad” which designates itself as the official Organ of the GI Forum (headed by Dr. Hector P. Garcia) there appeared, on the first page of such publication, a strong endorsement of Oscar Phillips [a Mexican-American candidate] as a candidate for the School Board, imploring all Latin-Amerieans to cast a vote for him.

We feel that it is most unfortunate when a few members of any race seek to gain, step by step, control of our public institutions, and especially such control of our free public schools.

Shortly after this attempt by the Mexican-American community to elect a second member of the School Board, the board changed the method of election to a majority place system.

Similar tactics have continued in recent years. In a 1962 election for Regents of Del Mar College, located in Nueces County, in which “single-shot” voting was still permitted, four former members of the Board of Regents circulated an advertisement purportedly to discourage racially motivated voting and urging voters to “vote like Americans”. Although the appeal is more clearly-worded than the attempts of earlier years, the intent is clear:

On Saturday we are to elect three Regents of Del Mar College. There are four candidates. Three of them are Anglos. The fourth is of Mexican ancestry. The three candidates who receive the most votes will be elected.

* * * -X- * -X-

[Single-shot voting] is un-American and un-Democratic. It is, in fact, self-imposed segregation. And Del-Mar College lead the way in desegregation in this area.

This ‘single-shotting’ process, in use over a term of years, has culminated in political organization set up for the avowed purpose of electing citizens of Mexican descent to public office. Inevitably, this process, if continued, will pit race against race. Already some Anglo voters are retaliating for refusing to vote for any candidate who has a Latin name. * * *

Similarly subtle tactics were used in a Corpus Christi city council race in May 1971. The pending school desegregation ease, see Cisneros v. Corpus Christi Independent School District, supra, which had heightened racial tension in the city, was used as a campaign ploy against certain Mexican-Americans. For example, a group styled the Concerned Neighbors, Inc., in a letter circulated prior to the city council election, noted with respect to one candidate that

Dr. Hector Garcia has been vigorously campaigning for his nephew, J. A. “Tony” Canalas, the People’s Party candidate for Place 6. As you will recall, in the first hearing held before Judge Seals, Dr. Garcia testified in support of the Plaintiffs, and against the School District in support of the proposition of bussing [sic] of the school children across the district.

A second consideration in determining lack of access to the political process is the extent to which Mexican-Americans in Nueces County have been denied input to the legislative process, as distinguished from the electoral process. Thus, although the Nueces County delegation to the House of Representatives has included at least one Mexican-American in every term but one since 1964, this electoral success does not reflect a comparable legislative success in terms of response to the particularized needs of Mexican-Americans. Carlos F. Truan, a Mexican-American who was elected State representative in 1968 and re-elected in 1970 and 1972, testified that although he proposed legislation of specific interest to Mexican-Americans, it was necessary that he dilute much of his input on behalf of Mexican-Americans in order to accommodate the opposition of other constituents. As Representative Truan put it, “I think it [single member districts] would allow for representatives like myself that have specific interests in helping people that are less fortunate than others attend to those needs without having to dilute my attention and my time among so many other areas to take away from the specific problems I feel so strongly about that need to be solved in this state.” Moreover, Representative Truan noted that although other members of his delegation, as well as other representatives from other parts of the state, vote in favor of certain proposals of significance to Mexican-Americans and may on occasion even propose such legislation as an original sponsor, they will normally lack empathy with the Mexican-American:

You can’t really appreciate the value of bilingual education unless you have been physically abused for speaking a language that your parents have spoken.

You can’t fully appreciate not having food on the table unless you have had that experience. And so if you have an opportunity to push for legislation creating the food stamp program state-wide, you are going to push for that specific legislation.

Finally, the evidence disclosed that Representative Truan lost much of his prior support in the election of 1972 because of Anglo resentment stemming from his legislative proposals relating to the in-' terests of Mexican-Americans.

Thus Nueces County Mexican-Americans are presently, and have been in the past, the victims of intensely bitter, racially motivated campaign strategy. These tactics are prompted by the substantial threat posed to certain Anglo political organizations by a near-majority Mexican American community with relatively good voter registration and turnout. When this strategy is not successful, the Mexican-American who is successful in a district-wide race must dilute his support of legislative measures of particular interest to Mexican-Americans and run the risk of losing reelection as a result of any such measures which he does support. The result is that the Mexican-American minority population in District 48 have less opportunity than other residents in the district to participate in the political processes and to elect legislators of their choice.

I. DISTRICT 19 (GALVESTON COUNTY)

Galveston County, containing the cities of Galveston and Texas City, constituted a two-member legislative district through the 1960’s. The plaintiffs do not contend that the existence of a multi-member district presently denies, or has in the past denied, minority citizens of Galveston County access to the political process. The 1970 census revealed, however, that the population of the county was approximately 20,000 in excess of the number that constitutes an ideal two-member district; and the plan adopted by the Legislative Redistricting Board in 1971 removed 20,000 Galveston residents from multi-member District 19 and placed them in District 17, a flotorial district including all of Chambers County and portions of Harris County. With respect to the reallocation of these 20,000 citizens, the plaintiffs allege that the Redistricting Board plan was “gerrymandered” so as to remove Galveston County census tract 1219 from the Galveston County district and place it in the flotorial district, in order to minimize the voting strength of approximately 5500 blacks who reside in that tract.

If this claim is supported by the evidence, there is no doubt that the court may order appropriate relief. Whatever the law may be with respect to politically motivated gerrymandering to insure the election of persons of a particular political party, gerrymandering for the purpose of minimizing the political and voting power of blacks is in violation of the fifteenth amendment. Gomillion v. Lightfoot, 364 U.S. 339, 81 S.Ct. 125, 5 L.Ed.2d 110 (1960); Taylor v. Board of Education, 294 F.2d 36 (2d Cir. 1961); United States v. State of Texas, 321 F.Supp. 1043, 1051-1052 (E.D.Tex.1970); Sims v. Baggett, 247 F. Supp. 96, 104-105 (M.D.Ala.1965). The court has considered carefully the evidence submitted by the plaintiffs with respect to their claim and has concluded that Galveston County and flotorial District 17 have been unconstitutionally gerrymandered in an attempt to minimize the voting power of blacks in Census Tract 1219.

District 17 is perhaps not so uncouth in appearance as was the city of Tuskegee, Alabama, immediately prior to Gomillion v. Lightfoot, supra. It does however, have its peculiarities. It includes Chambers County and portions of Harris County roughly north of Galveston County, but rather than claiming the northern-most census tracts of Galveston County (all of which are predominantly white), it curls down into Texas City and gathers five urban census tracts as well as the Bolivar Peninsula. In five of the Galveston County tracts chosen for inclusion in District 17, there are a total of 17 blacks. In the sixth, Tract 1219, there are 5500 blacks who live in the very center of Texas City. Tract 1219 is the source of much of the leadership of the black community in Galveston County. Yet at present those 5500 black voters must vote (or run) for the legislature in District 17, in which blacks constitute less than 8% of the population, rather than with the remainder of Galveston County .²²

The only testimony before the court regarding the intention of the Legislative Redistricting Board in designing District 17 was that of a current member of the legislative delegation from Galveston County, Representative Ed Harris. He testified that Tract 1219 was removed intentionally to thwart the growth of black political strength in that neighborhood.²³ Although the court has some reservations about accepting the opinion of one expert as a basis for its finding, the evidence already described lends circumstantial support to his conclusion. Moreover, the defendants made no attempt to impeach his testimony or to offer any evidence of their own suggesting some more permissible rationale for the district’s composition. Accordingly, the court finds that the design of District 17 constitutes an impermissible racial gerrymander pursuant to Gomillion v. Lightfoot, supra, and works a deprivation of the constitutional rights of the black residents of Census Tract 1219.

II.

Certain plaintiffs have requested award of attorney’s fees in this case. Although the defendants are contesting the appropriáteness of such an award, they have stipulated with certain parties as to the reasonableness of submitted schedules of fees and expenses. Other parties requesting attorneys’ fees who indicated they would enter into similar stipulations with the defendants, however, have not yet done so.

The court is, of course, operating under a time constraint since the deadline for filing for legislative races is impending. Accordingly, the court has decided to render a final decision on the major issue before it at this time and to dispose of the matter of attorneys’ fees at a later time when all of the necessary evidence is available. The court explicitly finds that there is no just reason for delaying the entry of today’s order, but rather every reason to make the instant judgment final and appealable with respect to all of the issues considered herein. Accordingly, the court expressly directs the entry of judgment herein pursuant to Federal Rule of Civil Procedure 54(b).

III.

CONCLUSION

It has been nearly a century since the enactment of the Fourteenth and Fifteenth Amendments and still we hear cries of anguish calling for more tomorrows and mananas before the enforcement of these electoral constitutional mandates. The State implores that in the event we find the present multimember scheme unconstitutional, the legislature be permitted time to draw the new boundaries. We have given serious consideration to the alternative, but have concluded that the compelling constitutional infirmities present in seven of these districts and the considerable time delay necessary for any legislative action require that we adopt single-member district plans for the upcoming 1974 elections. See Connor v. Johnson, 402 U.S. 690, 91 S.Ct. 1760, 29 L.Ed.2d 268 (1971); Swann v. Adams, 383 U.S. 210, 86 S.Ct. 767, 15 L.Ed.2d 707 (1966); Graves v. Barnes, 343 F.Supp. 704, 736 (W.D.Tex.1972), aff. sub norm, White v. Regester, 412 U.S. 755, 93 S.Ct. 2332, 37 L.Ed.2d 314 (1973).

The legislature initially considered redistricting in 1971. The original opinion of this court, indicating the criteria by which the state’s multi-member districts were to be judged, was issued in January of 1972. The testimony before us indicates that subsequent efforts at adopting a statewide system of single-member districts were blocked by the actions of some current representatives from the present multi-member districts, aided by sentiment that the legislature could simply sit back and “let the federal courts do it.” Were we to stay our hand now, single-member districts would not be implemented before the 1976 elections. The black and Mexican-American minorities in the seven counties would remain fenced out of the state political processes for another three years. Not until January of 1977 would a legislature elected under an entirely constitutional plan convene. Six years would have passed since the state began its task of constitutional redistricting. We do not believe that legislative redistricting should be subject to perhaps a decade of deliberation with a minimum of mobility.

Therefore, with reluctance, but with a firm conviction that such action is necessary for the vindication of constitutional rights, we adopt the plans appended to this opinion.²⁴ In line with the procedure followed in the original order in this case, the equities of transition dictate that during the election to the Texas House of Representatives' to be held during 1974 no candidate in Districts 7, 32, 35, 37, 48, 72 and 75 shall be required to reside in the single-member district that he or she seeks to represent. The enforcement of the provision of the Texas Constitution requiring such residence will be enjoined for that year. The candidates must, of course, be residents of the present multi-member district from which the smaller districts have been carved.

In view of the time constraint upon the court and the complexity of remodelling such a house of cards as the districting scheme in and around Galveston County, the court declines at this time to issue injunctive or other affirmative relief in favor of the plaintiffs with respect to Districts 17 and 19. Instead, the court hereby declares that the present plan is unconstitutional and cannot stand, with every confidence that the legislature will undertake to remedy the constitutional deficiencies at the earliest possible date. Should the legislature fail to act before July 1, 1975, however, this court will be required to grant affirmative relief.

We emphasize that the holding of unconstitutionally in the Galveston area districting is limited to the racially motivated removal of Census Tract 1219 from the Galveston County district. The plaintiffs do not contend that the multi-member scheme in Galveston dilutes the black vote, and the legislature is under no constitutional obligation, of course, to divide Galveston County into single-member districts.

We do not believe that the forest has been trackless, and at the end of the trail we hope that we have come to a clearing, in order to observe the rays of a true democratic society. Without the opportunity of minority groups to express their political preferences, hopes, and aspirations, democracy would become perverted into a majoritarian totalitarianism. Our founding fathers were conscious that a majoritarian government must guarantee the minority access to the political process. The circulatory system of our democratic society cannot tolerate an ethnic embolism.

1 . Graves v. Barnes, supra at 718 n. 7.

2 . The Supreme Court summarily affirmed our conclusion on the validity of the Senate plan in Archer v. Smith, 409 U.S. 808, 93 S. Ct. 62, 34 L.Ed.2d 68 (1972).

3 . See Breare v. Smith, 321 F.Supp. 1100 (S.D.Tex.1971) ; Garza v. Smith, 320 F.Supp. 131 (W.D.Tex.1971).

4 . Zimmer v. McKeithen, supra, 485 F.2d at 1305.

5 . Ft. Worth Star-Telegram, November 11, 1973, at 4-A, col. 1: “Suburbs Oppose Subsidized Housing”.

6 . Ft. Worth Star-Telegram, November 21, 1973, at 4r-A, col. 8: “Economics Key to Suburban ' Housing for Minorities”.

7 . Mrs. Betty Andujar was victorious in a Senate race recently, even though she appeared on neither slate, but she ran in a Senatorial district that includes only approximately half of representative district 32. Her case is exceptional in many respects: she ran as a Republican against a non-incumbent opponent, and she was a well-known figure in local politics as well as the wife of a prominent physician.

8 . A political expert long active in Tarrant County politics recounted an incident that occurred when she was working in a voter registration campaign. She offered to register an elderly black woman and the woman responded: “It doesn’t make any difference whether I register or whether I vote. Those white people are going to do whatever they want to anyway. And they’re going to elect whoever they want to.” The woman’s attitude apparently is shared by many members of the district’s minority community, which both registers and votes in far smaller proportions than the white majority.

9 . A Tarrant County political expert testified that the level of political participation there, especially registration and voting, is as low among browns as among blacks.

10 . The population of the district is 221,314. Beaumont has a population of 115,919 and Port Arthur 57,871, according to the 1970 census.

11 . See, e. g., United States v. International Longshoremens’ Ass’n, 334 F.Supp. 976 (S.D.Tex.1971).

12 . Waco News-Gitieen, August 2, 1956, at 1: “Voters Demand Segregation.” The doctrine of “interposition” was apparently the theoretical brainchild of a legislative advisory committee appointed by Governor Shivers in 1955 in the wake of Brown v. Board of Education. The committee’s document recommended: “individual, personal rejection of compliance with what is merely the latest expression of judicial opinion; refusal by every individual to observe a judgment to which he was not a party . . .”; “official action or non-action, as the case may be of the Legislature, local, State and district officials, boards, bureaus, and departments . . . to maintain a dual school system as long as the people of this State and the local communities desire it”; and the adoption of a constitutional amendment to “halt illegal federal encroachment.” Report of the Legal and Legislative Subcommittee of the Texas Advisory Committee on Segregation in the Public Schools, September 1, 1956 (available from Texas State Library Legislative Reference Division).

13 . Waco News-Ciiizen, October 25, 1956 at 7: “Texas Suit Uncovers NAACP.”

14 . The present at-large city council voting system retains the requirement that candidates for the various places must reside in particular wards. Thus, it is not surprising that one place on the council is often filled by a black. This is a further reason that the election of two blacks to the city council does not tend to show that a black could run successfully county-wide in the legislative district, since there is no residence requirement for holding a legislative seat.

15 . Although a single Anglo individual has twice in recent years been elected to the Texas House from Travis County on the Republican ticket, the present delegation is entirely Democratic and the Republican party does not function as a continuing, viable force in local politics.

16 . The city council victory is explained by the fact that the black candidate ran as part of a group endorsed by the dominant business community. The testimony of all those knowledgeable on Travis County politics indicated that the election of a black woman to the school board must be largely attributed to the fact that the election was held on the day following the assassination of Dr. Martin Luther King and therefore represented a certain distortion of ordinary voting patterns.

17 . Kibbe, Latin Americans in Texas 176 (University of New Mexico Press, 1946), cited in Baird and Guzman, Mexican Americans in Lubbock: Political Subculture and Mexican American Political Behavior (unpublished portion of research project from Texas Tech University, Lubbock, Texas, presented at the 1973 Annual Meeting of the Rocky Mountain Political Science Association, Laramie, Wyoming, April 27, 1972).

18 . For an excellent history of discrimination against Mexican Americans, see Tijerina, a History of the Mexican Americans in Lubbock County, Texas (thesis submitted in partial fulfillment of the requirements for a degree in Master of Arts at Texas Tech University, Lubbock, Texas, August, 1973). Tijerina notes that

There were several factors which rendered the Mexican Americans more easily susceptible to categorization. For one, they all spoke Spanish at that time, and they were all of a different culture from the American. They tended to congregate exclusively among themselves, which seems to have been recognition of their lack of acceptance. Just as significant was the fact that Anglo Americans in the Southwest at the turn of the century had a strong tendency to consider themselves superior. Those in Lubbock were no exception, and although they were no more homogeneous than the people they called Mexican, they called themselves Anglo, as much a label of self-recognition as of exclusion. Another very probably though indirect factor in the segregation of the early Mexican American was that farmers in Lubbock needed a mobile, unstable cadre of field laborers for their great seasonal demand for labor. This necessitated a system which would keep the laborers mobile, but still not drive them away permanently.

Although the early Mexican Americans failed to perceive any overt discrimination, their alienation was slowly developed by an incipient process in almost all aspects of their lives. Though they were served in restaurants, they knew that they could sit only at the rear of the building. Their children were not allowed in the town school which was giving the Anglo children an American education. They remained in cotton-picking work not because they had a natural propensity for life on the farm, as has been proposed, but because they were not accepted into other occupations in Lubbock. When the first Mexican Americans obtained work in Lubbock, it was restricted to the construction of sidewalks and brick streets. When the Lubbock Chamber of Commerce proudly enumerated the town’s businesses in a 1916 promotional leaflet, not a single Mexican American establishment appeared on the list. It would be years, in fact, before the first Mexican Americans would become stable enough to accumulate the needed capital for their own places of business. Excluded as they were from the natural American socialization processes of an American education, social interaction on an equal basis, and acceptance as individuals into stabilized society, they and their children would continue for decades to live as aliens in their own land.

Id. at 37-39 [footnotes omitted].

19 . The figure of 56.87% referred to earlier is adjusted to eliminate from consideration the estimated 5% Mexican population residing in El Paso County as permanent aliens.

20 . Relying on the Supreme Court’s affirmance of the district court’s determination in White v. Regester, supra, that the voting strength of Mexican-Americans was diluted in Bexar County even though they constituted a majority of the population, the Fifth Circuit recently rejected a similar argument involving a rural parish of 12,884 people and a 58.7% black population. Zimmer v. MeKeithen, supra.

21 . After remand to the district court, a different district judge, noting that no desegregation plan was yet in effect in the Corpus Christi Independent School District, considered plaintiffs’ motion to provide transportation for those students electing to avail themselves of majority-to-minority transfers. Although the district court indicated some reluctance to grant the motion, it did so in order not to “seriously offend the sensitivity of the appellate judges.” Cisneros v. Corpus Christi Independent School District, 350 F.Supp. 1241, 1242 (S.D.Tex.1972).

22 . The county’s black population is approximately 33,314, or about 20% of the total.

23 . Representative Harris further testified that the Galveston County delegation proposed a plan that would have drawn a group of 20,000 Galveston County residents reflecting the ethnic composition of the county as a whole for inclusion in another district. The delegation submitted the plan to the Legislative Redistricting Board, but the Board rejected it in favor of the current plan.

24 . In adopting these plans for seven multimember districts the Court has disturbed none of the boundaries between those districts and adjoining single-member districts established by the Texas Legislature,