Seamon v. Upham

536 F. Supp. 931, 1982 U.S. Dist. LEXIS 11767

• Court: District Court, E.D. Texas
• Decided: February 27, 1982
• Docket: Civ. A. P-81-49-CA
• Status: Published

Opinions

OPINION

SAM D. JOHNSON, Circuit Judge:

Since the Supreme Court’s 1962 decision in Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962), federal courts have found themselves undesirably in the center of the “political thicket” of congressional and legislative apportionment. This Court finds itself in just such a position.

The first called session of the 67th Legislature of Texas enacted Senate Bill No. 1 (S.B. 1), which apportioned Texas into twenty-seven single-member congressional districts, on August 10, 1981. The enactment was signed by the Governor of Texas on August 14, 1981. Tex.Rev.Civ.Stat.Ann. art. 197f (Vernon Supp. 1981). Since Texas is a jurisdiction covered by the submission and preclearance provisions of section 5 of the Voting Rights Act, 42 U.S.C. § 1973c (1976); Briscoe v. Bell, 432 U.S. 404, 97 S.Ct. 2428, 53 L.Ed.2d 439, S.B. 1 was submitted to the Attorney General of the United States for preclearance on or about September 11, 1981.¹

Prior to any objection or affirmative indication that an objection would not be interposed to S.B. 1 by the Attorney General of the United States, suit was filed in the federal district court for the Eastern District of Texas against the State of Texas and several state officials. Numerous plaintiffs were allowed to intervene in the suit, which presented the question of whether S.B. 1 constituted an impermissible gerrymander that resulted in the dilution of minority voting strength. One group of minorities argued basically it was “packed” into a single congressional district in order to minimize the political influence it had enjoyed previously. A group of minorities from another area of the State argued S.B. 1 “fragmented” the minority population in order to decrease its voting strength. Plaintiffs challenged the constitutionality of S.B. 1 under the fourteenth and fifteenth amendments of the United States Constitution. In addition, plaintiffs claimed the legislation violated section 2 of the Voting Rights Act of 1965. 42 U.S.C. § 1973 (1976) .

This three-judge court was empaneled pursuant to 28 U.S.C. § 2284 (1976). On November 30, 1981, this Court held an evidentiary hearing. At the three-day hearing, the parties presented evidence relevant to the issues involved in the constitutional and statutory challenge to S.B. 1. At the conclusion of the hearing, the Court took the case under advisement, recognizing that congressional reapportionment plans enacted by the State of Texas are not effective as law unless and until they receive clearance pursuant to section 5 of the Voting Rights Act. Accordingly, this Court withheld deciding and addressing the constitutionality of S.B. 1 until appropriate action was taken by the Attorney General of the United States. See Wise v. Lipscomb, 437 U.S. 535, 98 S.Ct. 2493, 2497-98, 57 L.Ed.2d 411 (1978) citing Connor v. Finch, 431 U.S. 407, 97 S.Ct. 1828, 1832, 52 L.Ed.2d 465 (1977) and Connor v. Waller, 421 U.S. 656, 95 S.Ct. 2003, 44 L.Ed.2d 486 (1975).

On January 25, 1982, this Court entered an order postponing the filing deadline for prospective candidates for the office of representative to United States Congress for sixteen of twenty-seven congressional districts, as those districts were defined by S.B. 1, until February 22, 1982.² The Texas Election Code, Tex.Elec.Code Ann. art. 13.-12(c) (Vernon Supp.1981), provides that an application to have one’s name placed on the ballot as a candidate for nomination by a political party shall be filed no later than 6:00 p. m. on the first Monday in February preceding the date of the primary election. See also Texas Educ.Code Ann. art. 11.22(e) (Vernon Supp.1981). Consequently, the filing deadline in the year 1982 was Monday, February 1. This Court’s action was taken as a result of its opinion that such action was necessary because of the delay by the Attorney General of the United States in meeting his obligations under section 5 of the Voting Rights Act. This delay placed the people of the State of Texas in the awkward position of facing filing deadlines for United States congressional offices that were to be filled by elections that, because the United States Attorney General had failed to preclear the relevant legislative enactment, would be unenforceable. 42 U.S.C. § 1973c.

The Attorney General of the United States did interpose an objection to S.B. 1 as provided for in 42 U.S.C. § 1973c by letter dated January 29, 1982 to the Secretary of State of the State of Texas. January 29, 1982, a Friday, was only three days prior to the February 1, 1982, filing deadline. It was, however, some 140 days after the initial information was submitted to the office of the United States Attorney General by the State of Texas.³

The effect of the objection to S.B. 1 by the Attorney General of the United States was to render implementation of S.B. l’s provisions legally unenforceable. 42 U.S.C. § 1973c. Accordingly, this Court, on February 2,1982, ordered that a hearing be set to determine the extent of this Court’s jurisdiction in the case sub judice. In addition, assuming the Court’s jurisdiction and the need for implementing a court-ordered congressional apportionment plan, the parties were ordered to provide written submissions along with maps, plats, or other relevant data.

Such a hearing was held on February 9, 1982. At that time, the Court granted plaintiffs’ motions to amend their complaints to include challenges to the congressional apportionment plan that S.B. 1 was meant to supplant. This plan, based upon 1970 census figures, was instituted after substantial litigation. See Graves v. Barnes, 343 F.Supp. 704 (W.D.Tex.1972); Graves v. Barnes, 378 F.Supp. 640 (W.D. Tex.1973); Graves v. Barnes, 408 F.Supp. 1050 (W.D.Tex.1976); Graves v. Barnes, 446 F.Supp. 560 (W.D.Tex.1977); White v. Weiser, 412 U.S. 783, 93 S.Ct. 2348, 37 L.Ed.2d 335 (1973). This existing congressional apportionment plan provides for only twenty-four districts. In addition, utilizing 1980 census data, its districts have an average deviation of ± 17 percent from the ideal population for a congressional district and a deviation of ± 84.3 percent at its extremes. Because of the obvious constitutional inadequacies of this plan, this Court was asked by the parties to this litigation, including the State of Texas, to exercise equitable jurisdiction and devise and implement a congressional apportionment plan that would include twenty-seven congressional districts and satisfy constitutional requirements.⁴

Subsequent to the February 9, 1982 hearing, this Court entered a second order postponing the filing deadline for prospective candidates for representative to the United States Congress. The deadlines were postponed until 6:00 p. m. on March 19, 1982. This order, dated February 15, 1982, affected only the sixteen congressional districts, as they were defined by either S.B. 1 or otherwise, that were affected by the January 25, 1982 order.⁵ It also enjoined the State of Texas from holding any election for the purpose of choosing any congressional representative from the State of Texas. The injunction was to be in force and effect until this Court implemented a court-ordered congressional apportionment plan or took other action it deemed appropriate.

This Court recognizes the clear directives of the Supreme Court that the task of reapportioning congressional districts belongs to the state legislature in the first instance and the federal courts should make every effort not to preempt the state legislature’s primary jurisdiction and responsibility. See Wise v. Lipscomb, 98 S.Ct. at 2497; Connor v. Williams, 404 U.S. 549, 92 S.Ct. 656, 658 n.4, 30 L.Ed.2d 704 (1972); White v. Weiser, 93 S.Ct. at 2354; Ely v. Klahr, 403 U.S. 108, 91 S.Ct. 1803, 1807, 29 L.Ed.2d 352 (1971); Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964). The Texas State Legislature, however, is the only state body empowered to enact a new congressional apportionment plan.⁶ There has been no action taken by the Governor of Texas to call a special session of the Legislature, which meets biennially and is not scheduled to convene again until 1983. To the contrary, the Governor, through his attorneys, has requested this Court to implement a congressional apportionment plan of its own.

In the absence of a congressional apportionment plan that has been precleared pursuant to section 5, the Voting Rights Act “essentially freezes the election laws of the covered state.” Georgia v. United States, 411 U.S. 526, 93 S.Ct. 1702, 1709, 36 L.Ed.2d 472 (1973). .As a result, the State of Texas faces the possibility that the date for party primary elections — which, under Texas law, is May 1, 1982, Tex.Elec.Code Ann. art. 13.03 — may pass with no election. There are critical immediate concerns, in addition. In order to conduct an election on May 1, 1982, there is substantial mechanical preparation necessary. This preparation includes conducting proper voter registration, printing ballots, mailing absentee ballots, advising voters regarding the districts of their residence, and, of course, providing as nearly as possible for the time frame established through the legislative process of this state for candidates to appraise, evaluate, organize, and take other action necessary to submit themselves for election.

A present Texas legislative effort to apportion Texas’ twenty-seven congressional districts appears to be precluded. Accordingly, if Texas’ elective process is not to be completely frustrated and reduced to utter chaos and confusion, this Court is obligated, indeed it is required, to initiate a remedial decree that will allow the State of Texas to conduct congressional elections under a constitutional apportionment plan.⁷ Wise v. Lipscomb, 98 S.Ct. at 2497-98; Connor v. Finch, 97 S.Ct. at 1834; Mahan v. Howell, 410 U.S. 315, 93 S.Ct. 979, 989, 35 L.Ed.2d 320 (1973).

I. Appropriate Standards

In meeting the “unwelcome obligation” of devising and implementing a congressional apportionment plan, this Court turns to the guidance provided by the experiences of other federal courts placed in the political thicket of apportionment. This assistance is not generally in the form of affirmative prescriptions and directions regarding proper methodology and procedure to be utilized in fashioning apportionment plans. Instead, it is in the form of warnings and admonitions against taking certain actions or setting certain goals.

These admonitions, however, can be cast into a basic conceptual framework that consists of two coterminous constitutional duties or requirements that must be fulfilled in order for a court to properly implement a congressional apportionment plan. One function or goal of the Court must be to provide voter equality. Providing voter equality is a majoritarian principle. It implicates the requirement many times characterized as the necessity of satisfying the constitutional command of one person, one vote. McDaniel v. Sanchez, 452 U.S. 130, 137, 101 S.Ct. 2224, 2230, 68 L.Ed.2d 124 (1981); Connor v. Finch, 97 S.Ct. at 1833; id. at 1840 (Blackmun, J., concurring); Wyche v. Madison Parish Police Jury, 635 F.2d 1151, 1159 (5th Cir. 1981); Marshall v. Edwards, 582 F.2d 927, 938 (5th Cir. 1978), cert. denied, 442 U.S. 909, 99 S.Ct. 2820, 61 L.Ed.2d 274 (1979).

A companion constitutional requirement is that the court-ordered apportionment plan be racially fair.⁸ This requirement involves the rights of people who are members of minority groups. A racially fair plan avoids racial discrimination by not diluting the value of the votes to be cast by members of minority groups. McDaniel v. Sanchez, 101 S.Ct. at 2230; Connor v. Finch, 97 S.Ct. at 1828; id. at 1840 (Blackmun, J., concurring); Wyche v. Madison Parish Police Jury, 635 F.2d at 1159; Marshall v. Edwards, 582 F.2d at 938.

At the outset, this Court acknowledges that its attempt to accomplish its constitutional objectives is generally evaluated under stricter standards than a legislature’s attempt at properly apportioning a state.⁹ Connor v. Finch, 97 S.Ct. at 1833. A federal court simply does not operate with the same latitude as a state legislature. This is a function of the Supreme Court’s perception that “[t]he least representative branch of the government must take care when it reforms the most representative branch." Marshall v. Edwards, 582 F.2d at 934. See also Wyche v. Madison Parish Police Jury, 635 F.2d at 1159.¹⁰

Consequently, many choices for apportionment that might pass muster if enacted by the state’s representative body will fail if ordered by a federal court. This is because “a state legislature is the institution that is by far the best situated to identify and then reconcile traditional state policies within the constitutionally mandated framework of substantial population equality. The federal courts by contrast possess no distinctive mandate to compromise sometimes conflicting state apportionment policies in the people’s name.” Connor v. Finch, 97 S.Ct. at 1833-34 quoting Roman v. Sincock, 377 U.S. 695, 84 S.Ct. 1449, 1458, 12 L.Ed.2d 620 (1964). As a result, this Court may not consider the purely political considerations that might be appropriate for legislative bodies. Wyche, 635 F.2d at 1160.

Since reapportionment “inevitably has sharp political impact,” a district court, in fashioning a reapportionment plan, “should not pre-empt the legislative task nor ‘intrude upon state policy anymore than necessary.’” White v. Weiser, 93 S.Ct. at 2355 quoting Whitcomb v. Chavis, 403 U.S. 124, 91 S.Ct. 1858 at 1878, 29 L.Ed.2d 363. See also Connor v. Finch, 97 S.Ct. at 1833; Reynolds v. Sims, 377 U.S. 533, 584, 84 S.Ct. 1362, 1393, 12 L.Ed.2d 506 (1964); Graves v. Barnes, 446 F.Supp. 560, 563-64. In other words, the federal courts should avoid encroaching upon the legislature’s lawmaking prerogative by following “the policies and preference of the state, as expressed in statutory and constitutional provisions or in the reapportionment plans proposed by the state legislature.” White v. Weiser, 93 S.Ct. at 2355.

As long as the state’s proposals do not run afoul of the strict requirements encountered by the district court, they may be utilized. The Court is allowed to pay deference to certain policy choices, such as providing compact and contiguous districts, utilizing natural and historical boundaries, and preserving the integrity of county lines. See Connor v. Finch, 97 S.Ct. at 1833; Kilgarlin v. Hill, 386 U.S. 120, 87 S.Ct. 820, 822, 17 L.Ed.2d 771 (1967); Mahan v. Howell, 93 S.Ct. 979; Wyche v. Madison Parish Police Jury, 635 F.2d 1151; Taylor v. McKeithen, 5th Cir., 499 F.2d 893. Indeed, if the Court follows the state’s proposals of this type, it may reduce the incidence of its being found acting in a partisan manner. Connor v. Finch, 97 S.Ct. at 1828-29 (Blackmun, J., concurring).

This deference to the state legislature’s lawmaking prerogative is not without limitations, however. If adherence to the state’s proposals would result in the district court’s being unable to satisfy either of its coterminous constitutional goals — providing voter equality or racial fairness — the court should not defer. This limitation necessarily may require some variance from the state’s proposed plans in order for the Court to satisfy the stricter standards it faces. Connor v. Finch, 97 S.Ct. at 1834 (1977); White v. Weiser, 93 S.Ct. at 2355. See also Graves v. Barnes, 446 F.Supp. 560, 564 (1977). It should never be forgotten that the plan ultimately implemented is to be evaluated as a court-imposed plan.

If the state’s proposals are not immediately capable of incorporation into the Court’s plan because they would not help serve the goals required of federal courts, the district court is not allowed to go behind the proposal and inquire into the other, perhaps numerous, policy choices made by the state in arriving at its proposal. The overriding objective of the district court’s plan must be to provide substantial equality of population, while not diluting the political strength of members of minority groups. Wyche v. Madison Parish Police Jury, 635 F.2d 1151. The Court is bound to apply equitable standards of voting equality and racial fairness. Mahan v. Howell, 93 S.Ct. at 989; Connor v. Finch, 97 S.Ct. at 1833; Wyche v. Madison Parish Police Jury, 635 F.2d at 1160-61. See also Beer v. United States, 425 U.S. 130, 96 S.Ct. 1357 at 1363 n.11, 47 L.Ed.2d 629 (1976) quoting City of Richmond v. United States, 422 U.S. 358, 95 S.Ct. 2296, 2301, 45 L.Ed.2d 245 (1975). The watchword for a court-ordered apportionment plan is “fairness.”

The federal court’s task of providing and implementing a congressional apportionment plan is “inevitably an exposed and sensitive one that must be accomplished circumspectly, and in a manner ‘free from any taint of arbitrariness or discrimination.’” Connor v. Finch, 97 S.Ct. at 1834 quoting from Roman v. Sincock, 84 S.Ct. at 1458. Accordingly, if a state proposal submerges the voting potential of racial minorities, the district court is not required to defer to the state’s choice of apportionment. Indeed, absent “any insurmountable barrier to devising [an alternative] plan,” the district court has a duty to refrain from the state’s proposal. Connor v. Johnson, 402 U.S. 690, 692, 91 S.Ct. 1760, 1762,29 L.Ed.2d 268 (1971).

A. Providing Voter Equality

The population of the State of Texas expanded substantially during the decade of the Seventies, growing at a rate of 27.1 percent. As a result of this growth, Texas was apportioned three additional representatives to the United States Congress. Instead of the twenty-four representatives it was apportioned previously, Texas is now entitled to twenty-seven Congressmen.

Accordingly, the State of Texas must be divided into twenty-seven parts. These twenty-seven parts or districts must contain an approximately equal number of voters. This requirement is a function of “the command of article 1 § 2 [of the United States Constitution] that Representatives be chosen ‘by the People of the Several states,’ [which] means that as nearly as is practicable one man’s vote in a congressional election is to be worth as much as another’s.” Mahan v. Howell, 93 S.Ct. at 983 (1973) citing Kirkpatrick v. Preisler, 394 U.S. 526, 89 S.Ct. 1225, 22 L.Ed.2d 519 (1973), Wells v. Rockefeller, 394 U.S. 542, 89 S.Ct. 1234, 22 L.Ed.2d 535 (1969), and Wesberry v. Sanders, 376 U.S. 1, 84 S.Ct. 526, 527, 11 L.Ed.2d 481 (1964). See also White v. Regester, 412 U.S. 755, 93 S.Ct. 2332, 37 L.Ed.2d 314 (1973); Gaffney v. Cummings, 412 U.S. 735, 93 S.Ct. 2321, 37 L.Ed.2d 298 (1973); Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506; Wyche v. Madison Parish Police Jury, 635 F.2d 1151.¹¹

The analysis serving as the foundation for the one-person, one-vote or population equality principle is easily understandable. It suggests that a person living in a congressional district with a larger population than another district is “underrepresented.” People living in a congressional district with a relatively smaller population are “overrepresented.”¹²

In order for this Court to achieve its constitutional goal of population equality in the apportionment of the State of Texas, it must devise and implement a plan “with little more than de minimis variation” of population¹³ among the twenty-seven congressional districts. McDaniel v. Sanchez, 101 S.Ct. at 2230; Chapman v. Meier, 420 U.S. 1, 95 S.Ct. 751, 766 and n.19, 42 L.Ed.2d 766 (1975); Connor v. Finch, 97 S.Ct. at 1833; Connor v. Coleman, 440 U.S. 612, 99 S.Ct. 1523, 1527 n.4, 59 L.Ed.2d 619 (1979) (Marshall, J., dissenting) (court-ordered plan given less deference than legislative apportionments as to variances from population equality). Based upon the 1980 census data, the ideal population for one of Texas’ twenty-seven congressional districts is 526,977. In other words, this Court achieves its goal of population equality if it implements a plan that apportions the State of Texas into twenty-seven congressional districts, each of which has a population of 526,977 or a de minimis variation from this number.

While the principle of “no more than de minimis variation” is easy to state, application of the rule is more difficult both theoretically and practically. It is theoretically problematic because there is no set maxim of what variances from the ideal population are de minimis and what are constitutionally impermissible. Indeed, the Supreme Court has rejected arguments by states that “there is a fixed numerical or percentage population variance small enough to be considered de minimis and to satisfy without question” the requirement that “as nearly as practicable one man’s vote in a congressional election is to be worth as much as another’s.” Kirkpatrick v. Preisler, 394 U.S. 526, 89 S.Ct. 1225, 22 L.Ed.2d 519 quoting Wesberry v. Sanders, 84 S.Ct. at 530 (1964).

Beyond the theoretical problems in achieving de minimis population variance, there are practical difficulties that have been recognized by the Supreme Court as justifications for variations. Initially, the Supreme Court has recognized that the basic statistical materials utilized by courts— census data taken at ten-year intervals— are only “as accurate as such immense undertakings can be, but they are inherently less than absolutely accurate.” Gaffney v. Cummings, 93 S.Ct. at 2327. “Some deviation is permitted for purposes of administrative convenience, adherence to historical or geographical boundaries, and recognition of separate political units.” Wyche v. Madison Parish Police Jury, 635 F.2d at 1158, citing Mahan v. Howell, 410 U.S. 315, 93 S.Ct. 979, 35 L.Ed.2d 320 (16.4% deviation approved) and Abate v. Mundt, 403 U.S. 182, 91 S.Ct. 1904, 29 L.Ed.2d 399 (1971) (11.9% deviation upheld). The geographic location of people also may make mathematical exactness impossible if there is an attempt to provide compact and contiguous districts.

In any event, the Supreme Court has recognized that, as a practical matter, mathematical exactness or precision is hardly a workable constitutional requirement. Gaffney, 93 S.Ct. at 2326 quoting Reynolds v. Sims, 84 S.Ct. at 1390. Such an acknowledgment explains the Court’s refusal to establish a theoretical norm for what a constitutionally de minimis variation would be. This Court, however, in its effort to achieve the constitutional objective of voter equality, has attempted to satisfy the most severe requirements possible for mathematical precision.¹⁴

B. A Raciaiiy Fair Plan

In order to achieve this Court’s second constitutional objective — implement a plan that provides racial equality — this Court is guided by the Supreme Court’s recent opinion in the case of McDaniel v. Sanchez. In that opinion, the Supreme Court referred to the legislative history of section 5 of the Voting Rights Act, which stated that “in fashioning [a] plan, the court should follow the appropriate Section 5 standards, including the body of administrative and judicial precedents developed in Section 5 cases.” McDaniel v. Sanchez, 101 S.Ct. at 2236 quoting S.Rep.No.94-295, 94th Cong., 1st Sess., 18-19 (1975).

Section 5 of the Voting Right Act is applicable whenever a covered jurisdiction “shall enact or seek to administer any voting qualification or prerequisite to voting or standard, practice, or procedure with respect to voting different from that in force or effect on November 1, 1972.” 42 U.S.C. § 1973c. The Supreme Court in Georgia v. United States, 93 S.Ct. at 1708 expressly held that an apportionment plan is a standard, practice, or procedure requiring section 5 clearance either by a declaratory judgment of the United States District Court for the District of Columbia or by appropriate action of the Attorney General of the United States. Clearance of the apportionment plan is achieved by a determination of the United States District Court for the District of Columbia or the United States Attorney General that the plan “does not have the purpose and will not have the effect of denying or abridging the right to vote on account of race or color, or in contravention of the guarantees set forth in section 1973b(f)(2) of this title.” 42 U.S.C. § 1973c. Put another way, if the appropriate parties are satisfied that the apportionment plan does not have a racially discriminatory purpose or effect, the plan will be enforceable as law.¹⁵ See 28 C.F.R. § 51.19; Beer; Panior v. Iberville Parish School, 5th Cir., 536 F.2d 101 at 104-05.

Consequently, this Court, in order to implement a racially fair plan, must devise a proposal that has neither a racially discriminatory purpose nor effect.¹⁶ Regarding the purpose requirement, a district court’s plan, by definition, cannot have a racially discriminatory purpose if one of its two express goals is to implement a racially fair scheme. While this is arguably a bootstrap proposition, it is, nevertheless the appropriate analysis. The federal courts are at times summoned to implement remedial plans as a result of a state’s purposeful use of an apportionment scheme to dilute minority voting strength. Accordingly, a federal court is called upon to apply the appropriate analysis and implement a plan that is racially fair and avoid any possible malevolent purpose of the states.¹⁷

As noted, the second requirement of section 5 is a congressional apportionment plan that does not have the “effect” of denying or abridging the right to vote on account of race or color. The Supreme Court case of Beer v. United States is the definitive statement on what the section 5 term “effect” means. See also Georgia v. United States, 411 U.S. 526, 93 S.Ct. 1702, 36 L.Ed.2d 472 (1973). In Beer, after analysis and review of the legislative history of section 5, the Court stated that “the purpose of section 5 has always been to ensure that no voting procedure changes would be made that would lead to a retrogression in the position’ of racial minorities with respect to their effective exercise of the electoral franchise.” 96 S.Ct. at 1364.

In order for this Court to facilitate implementation of its own plan, it is necessary to analyze the Supreme Court’s definition of the section 5 effect standard. Initially, it is helpful to review the Supreme Court’s position regarding an “effective exercise of the electoral franchise.”

There are certain truisms regarding the effects of apportionment plans. Initially, no group is entitled to be included in a single legislative district, see United Jewish Organizations v. Carey, 430 U.S. 144, 97 S.Ct. 996, 51 L.Ed.2d 229 (1977), or to have its political clout maximized. Beer v. United States, 96 S.Ct. at 1361 n.8; City of Richmond v. United States, 422 U.S. 358, 95 S.Ct. 2296, 45 L.Ed.2d 245; Whitcomb v. Chavis, 403 U.S. 124, 91 S.Ct. 1858, 1875-78, 29 L.Ed.2d 363 (1971); Taylor v. McKeithen, 499 F.2d at 909 quoting Turner v. McKeithen, 490 F.2d 191, 197 (5th Cir. 1973). It is equally true that no group is entitled to proportional representation. City of Mobile v. Bolden, 446 U.S. 55 at 67, 100 S.Ct. 1490, 1504, 64 L.Ed.2d 47 (1980); White v. Regester, 93 S.Ct. at 2339; Whitcomb v. Chavis, 91 S.Ct. at 1872. “The Constitution ... does not demand that each cognizable element of a constituency elect representatives in proportion to its voting strength. White v. Regester [412 U.S. at 765-66, 93 S.Ct. at 2339, 37 L.Ed.2d at 234].” Wyche v. Madison Parish Police Jury, 635 F.2d at 1159-60 quoting Nevett v. Sides, 571 F.2d 209, 216 (5th Cir. 1978), cert. denied, 446 U.S. 951, 100 S.Ct. 2916, 64 L.Ed.2d 807 (1980). See also Whitcomb v. Chavis, 403 U.S. 124, 91 S.Ct. 1858, 29 L.Ed.2d 363 (1971); Marshall v. Edwards, 582 F.2d at 934-36; Dove v. Moore, 539 F.2d 1152, 1155 (8th Cir. 1976).

Further, a minority group is not entitled to be represented by a member of the group. This Court recognizes there is language indicating the basis of some constitutional claims to be that a particular election system prevents a minority group from electing “members of its race” to the governing bodies. However, the race of the person ultimately elected is not the factor determinative of whether an apportionment plan is racially fair.¹⁸

Indeed, the implementation of an apportionment plan that attempts to provide proportional representation or “safe” districts — districts in which a racial minority group “probably” could elect a member of its group — has no guarantee of being efficacious.¹⁹ Initially, such a plan must necessarily presume that racial and ethnic groups will vote as a single unit. However, “racial and ethnic groups do not always vote in solid phalanxes and ... the realities of partisan politics may enable a minority in some circumstances to exact more political concessions by swinging its vote to one of two candidates whose majority-race following is approximately equal than it could by selecting a candidate of its own identity.” Wyche v. Madison Parish Police Jury, 635 F.2d 1160-61 citing Marshall v. Edwards, 582 F.2d at 934-36.²⁰ Additionally, “[a] court-ordered .racial gerrymander which would assure that blacks form a sizable electoral majority in a single district may not be nearly as effective a guarantee of access as the creation of two or more districts with substantial black voter populations such that all candidates in those districts must be responsive to the needs and aspirations of the black electorate." United States v. Board of Sup’rs of Forrest Cty., 5th Cir., 571 F.2d 951 at 956. See also Panior, 536 F.2d at 105; Taylor v. McKeithen, 499 F.2d at 902; Marshall v. Edwards, 582 F.2d 927, 936-37. Finally, there can be little doubt that effective representation is not a function of ethnicity alone.

Accordingly, the efficacy of an apportionment plan that attempts to provide proportional representation or safe districts is dubious at best. It is at least in part because of this factor that the courts have been admonished against fashioning an apportionment scheme with an eye toward affirmatively creating racially balanced representation, even as a remedial measure.²¹ Wyche v. Madison Parish Police Jury, 635 F.2d at 1161; Marshall v. Edwards, 582 F.2d 927.

The decisive factor in every case is whether a minority group is allowed “effective participation in the political process.” Whitcomb v. Chavis, 91 S.Ct. at 1968 citing Reynolds v. Sims, 84 S.Ct. at 1383; Lodge v. Buxton, 639 F.2d 1358 at 1374.²² While not entitled to be placed in legislative district, to maximize their voting potential, to proportional representation, or to have members of their group elected to office, members of minority groups have a right not to be placed outside the political process in such a manner that they may be unable, or less able, to influence elected officials— whether the official is black, Hispanic, or white — to be sensitive and responsive to their needs. A “system of government that . serves the interest of the people must serve the interest of all the people.” Lodge v. Buxton, 639 F.2d at 1374. This means, by definition, members of minority groups have a right to vote without practical hindrance. Beyond this, however, it means the “political process leading to nomination and election [must be] equally open to participation by the group in question.” The members of the group must have no less opportunity than do other residents to “participate in the political process and to elect legislators of their choice.”²³ White v. Regester, 93 S.Ct. at 2339 citing Whitcomb v. Chavis, 91 S.Ct. at 1872. See also Allen v. State Board of Elections, 393 U.S. 544, 89 S.Ct. 817 at 833, 22 L.Ed.2d 1 citing Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 1370, 12 L.Ed.2d 506; Georgia v. United States, 93 S.Ct. at 1707 (1973); Wyche v. Madison Parish Police Jury, 635 S.Ct. at 1160; Taylor v. McKeithen, 499 F.2d 893, 902.

“[T]he standard [under Section 5] can only be fully satisfied by determining .. . whether the ability of minority groups to participate in the political process and to elect their choices to office is augmented, diminished, or not affected by the change affecting the voting.” Beer, 96 S.Ct. at 136 quoting H.R.Rep.No.94-196, p. 60 (emphasis in original). Accordingly, a court-ordered congressional apportionment plan must not cause retrogression in the ability of minority groups to elect responsive members to Congress — regardless of the color of the skin of the person elected.

The ability of this Court to define “access to the political process,” while at the same time avoiding the appearance of arbitrariness, is a difficult task. Neither the Congress nor the courts have articulated a precise prescription. There is no mechanical formula. Indeed, stating that a certain percentage of a minority population in a single district will always indicate access to the political process, and that less than that fixed percentage will always indicate no access or reduced access to the political process, would be, in many instances, an error by the Court. This is because the size of the minority population necessary for political impact depends on the district itself. This Court would be amiss to attempt to establish a mechanical or fixed percentage that could be universally applied without question.²⁴

This Court faces a similar and related problem with defining and applying a principle of retrogression. Again, neither Congress nor the courts have articulated explicit directives. Determining whether a new apportionment plan increases or decreases the voting power of minority group members relative to the prior plan is necessarily imprecise. It is, above all things, problematic. See Beer, 96 S.Ct. at 1370 n.12 (Marshall, J., dissenting).

This Court’s standard is fairness and equity. This standard, together with its inherent limitations, pretermits uniform explanations in every instance. This Court is directed to exercise its equitable jurisdiction and discretion and avoid the taint of arbitrariness by providing reasonable and rational explanations for its actions. It is not required to view every diverse facet with a single myopic eye. Therefore, no fixed percentage or formula will be seen as applicable to every circumstance without variance. This is particularly true of a state with the size and diversity of the State of Texas.

This Court begins its approach by recognizing that, in examining the effect of its plan and analyzing whether that effect causes a retrogression in minority voting strength, the Court cannot limit its evaluation to those districts that contain such a high population of minorities that it “probably will be represented” by a member of the minority group. As noted previously, minority groups are capable of significant access to the political process in districts in which there is little chance that they probably will be able to elect a member of a minority group. This form of access is a function of the group’s ability to “swing” the election’s outcome in favor of one candidate or another.²⁵

Another related factor in determining retrogression is the size of the minority population that the district had under the previous plan. If a district has a significant minority population, such as a percentage over 65 percent, minor changes occasioned by an apportionment plan, either up or down, probably will have little influence on the minority group’s access to the political process. It will depend, of course, upon whether the district is truly safe or, for whatever reason, only marginally safe.²⁶ On the other hand, minority group members residing in districts that have historically had small minority populations are not likely to realize a retrogression in voting strength as a result of a decline in their numbers. They simply had little electoral impact from the outset. Conversely, their electoral clout can be increased only through an apportionment plan providing substantial increases in their percentages.

Districts with moderate minority populations — neither high nor low percentages— are the most difficult to analyze. This is a function of the difficulty in determining the “magical” percentage that might place a minority group in the position of being capable of influencing an election. When the district’s minority percentage is moderate, political factors such as incumbency, economics, education, and the minority group’s ability to build political coalitions become increasingly critical to the determination of whether the minority group has the ability to elect government officials of its choice.

Significantly, this Court may not consider the innumerable political factors that may affect a minority group’s access to the political process. It is left to consider only the minority populations and from those percentages determine whether its plan is retrogressive. It is also clear that figures for total population are not the determinative criteria for analyzing retrogression. “[T]he Supreme Court has recognized that ‘if it is the weight of a person’s vote that matters, total population — even if stable and accurately taken — may not actually reflect that body of voters whose vote must be counted and weighed for purposes of reapportionment, because ‘census persons’ are not voters.’” Wyche, 635 F.2d at 1162 quoting Gaffney v. Cummings, 412 U.S. 735, 93 S.Ct. 2321, 2328, 37 L.Ed.2d 298 (1973). As a result, “[a]n important factor, perhaps the single most significant one in determining vote dilution,” is the voting age population of the congressional districts. Id. at 1162 and cases cited therein.

This Court also acknowledges the point of view that an apportionment plan must be evaluated on a statewide basis and focus should not be isolated on individual areas of the state that may be less favorable to a minority. Piecemeal review of the plan may be misleading. Connor v. Finch, 97 S.Ct. at 1840 through 41 (Blackmun, J., concurring). The Court, nevertheless, must face the realities of the state and recognize that minority group members are not spread evenly throughout its borders; in many instances, if not most, minority populations are concentrated in particularized geographic areas. Consequently, much of the Court’s analysis will necessarily focus on individual areas of thé State. Specifically, in Texas, three major minority concentrations appear in the Dallas, Houston, and South Texas areas.

This particularized analysis focuses on a possible result of the Court’s definition of districts in areas having concentrated minority populations. The Court must take care to avoid “packing” a group of minorities into a single congressional district and, by doing so, reduce the political strength previously enjoyed by a part of the minority group. This Court briefly addressed this issue in its foregoing discussion regarding the problem of attempting to guarantee that the creation of a “safe” district would be an effective means of enhancing a minority group’s access to the political process. As noted, there can be no guarantee that such an election system will be efficacious. To the contrary, “[t]here is no agreement on whether the political interests of a minority group are best maximized by an overwhelming majority in a single district, bare majorities in more than one district or a substantial proportion of the voters in a number of districts.” Panior, 536 F.2d at 105 quoting Turner v. McKeithen, 490 F.2d 191, 197 n.24 (5th Cir. 1973).

Attempts to create a single strong district normally may be accomplished only by diluting minority voting power in surrounding districts to the point that elected officials “could ignore with impunity the special needs of [minority group members] in those districts.” See Taylor v. McKeithen, 499 F.2d at 902. A congressional scheme such as this could reasonably be termed retrogressive. This is particularly true if the so-called single strong district fails even to provide a “safe” seat but only enhances the minority group’s ability to swing an election one direction or another, since the minority group conceivably was capable of achieving this result before the reapportionment.²⁷

An additional and final factor faced by this Court is the fact that Texas was apportioned three new congressional districts. This precludes a one-on-one comparison between the existing apportionment plan and this Court’s plan. Accordingly, this Court must provide some reasonable methodology for analyzing the increased number of districts in. order to determine whether the Court’s method of handling these three districts has a retrogressive effect. This Court initially bases its analysis of the new districts and their contribution to the Court’s plan by a two-step analysis. First, the Court determines what percentage of the state is minority population. This is found to be 33 percent. Second, the Court compares the average minority population of the three new congressional districts to the statewide minority percentage of 33 percent. If the average minority population percentage of the three new congressional districts is greater than the statewide minority percentage, which it is,²⁸ a reasonable, although somewhat superficial, conclusion may be made that the method of incorporating the three new congressional districts did not cause a retrogression in minority voting strength.

An additional method for analyzing the effect of the three new congressional districts is to determine the net difference between the three districts’ minority populations and the statewide minority population. This makes mathematical adjustments for any fragmentation of the minority population among the three districts. It is achieved by first finding the numerical variances in the minority percentages for the individual districts and the statewide minority population percentage of 33.0%. District 25 has a minority population of 38.7 percent. This makes for a + 5.7 percent difference from the statewide total. There is a + 31.25 percent difference between the statewide total and District 27, which has a minority population of 64.25 percent. District 26 has a minority population of only 7.01 percent. As a result, it differs from the statewide minority population by-25.99 percent.

The net difference between the minority population in the three new districts and the total statewide minority population is + 10.96. This positive difference leads to the reasonable, although again somewhat superficial conclusion that the Court’s method of incorporating the three new congressional districts into a congressional apportionment scheme, standing alone, does not cause a retrogression in minority voting strength.²⁹

II. The Court-Ordered Plan

As noted, this Court acknowledges it has two coterminous constitutional duties or requirements that must be fulfilled in order for the Court to properly implement a congressional apportionment plan. The Court must devise and implement a plan that provides both voter equality and racial fairness. As will be demonstrated in greater detail, this Court, in fashioning its remedy, has paid great deference to the proposals of the State of Texas as they were expressed by the Legislature in passing the ill-fated S.B. 1. Specifically, the great majority of S.B. l's provisions are incorporated in full. All but six of the districts created by S.B. 1 — District 3, 4, 15, 24, 26, and 27 — are utilized in the Court’s plan precisely as they are defined in the legislative enactment.

A. Voter Equality

The State of Texas is entitled to twenty-seven representatives to the United States Congress. The 1980 census data reveals that the State of Texas has a total population of 14,228,338 people. Accordingly, each of the twenty-seven districts from which Texas will elect its representatives should have a total population of 526,977, or a de minimis variation from this number. The Court’s plan satisfies the constitutional objective of voter equality under the most stringent requirements of mathematical exactitude.

The average deviation in district population from the ideal district under the Court’s plan is ± 0.05%. The average variance in population is ± 257 people. The population and deviation from the ideal population for each district is set out for convenience.

POPULATION EQUALITY ACROSS DISTRICTS IN COURT-ORDERED PLAN

Ideal District Population = 526,977

District Population Deviation

1 527,016 +.01

2 526,772 -.04

3 526,853 + .02

4 526,991 -0-

5 526,792 -.04

6 527.393 + .08

7 527,083 + .02

8 527,528 + .10

9 526,443 -.10

10 526,943 -.01

11 526,871 -.02

12 527,074 + .02

13 526,840 -.03

14 526,920 -.01

15 527,203 + .04

16 527,401 + .08

17 526,831 -.03

18 527.393 + .08

' 19 527,805 + .16

20 526,333 -.12

21 527,044 + .01

22 526,602 -.07

23 526,976 -.08

24 526,677 -.06

25 526,801 -.03

26 527,285 + .06

27 526,941 -.01

While only one district has a 0% deviation in population from that of the ideal district, the other districts have only very minor deviations. The congressional district with the largest total population is District 19. It has a population of 527,805 people or 828 people more than ideal. Therefore, it deviates from the population norm by + 0.16%. On the other end of the scale, Congressional District 20 has the smallest total population with 526,333 people. This is 644 people less than ideal. As a result, it deviates from the population norm by -0.12%. The difference in population between the largest and smallest districts is 1,472 people. The top to bottom deviation is ± 0.28%.

Even the de minimis deviations from absolute population equality can be explained. As nearly as practicable, the plan attempts to comply with the State of Texas’ goals of preserving certain traditional and historical boundaries. Additionally, there has been an attempt to provide compact and contiguous districts. Finally, the Court recognizes there is no precise numerical definition of a de minimis deviation from the ideal population. However, the Court’s remedial directive comes as close to mathematical exactness as may be practically possible.

B. Racial Fairness

In fashioning a remedial apportionment plan, this Court follows the appropriate standards of section 5 of the Voting Rights Act, which requires a proposal that has neither a racially discriminatory purpose nor effect. The purpose of the Court’s plan is articulated in its two express objectives— providing voter equality and racial fairness. Consequently, one prong of section 5 is met.

Regarding the effect prong of section 5, the plan must not lead to a retrogression in the position of racial minorities with respect to their effective exercise of the electoral franchise. Accordingly, this analysis begins with an evaluation of the position of racial • minorities under the apportionment plan S.B. 1 was to replace.³⁰

(1) The Pre-Existing Congressional Apportionment Plan

The previous election system, with twenty-four congressional districts, provided minorities with three districts in which they “probably” could elect a member of a minority group to represent the district. This is a result of the high minority profile of the districts. Those districts were Districts 15, 18, and 20. District 15 had a minority population of 77.8 percent. District 18 was 74.0 percent minority, and District 20 had a minority population of 77.6 percent.³¹

District 16 under the previous plan also should be mentioned. It reasonably could not have been classified as a “safe” district, since it had a total minority population of only 60.5 percent. However, it did provide substantial access to the minority population because of its high minority profile. The same is true of District 23, which had a total minority population of 57.8 percent. Under the previous plan, District 14 had a minority profile of 45.4 percent. This percentage reveals minorities had a significant potential for influencing an election.³²

The voting age population of Districts 15, 18, and 20 echoes the fact they were probably safe minority districts. Of the voting age population in District 15, 72.23 percent was minority. The minority breakdown of the voting age population in Districts 18 and 20 was 67.93 percent and 72.27 percent, respectively.

Regarding the previous District 16, minorities comprised 55.20 percent of the district’s overall voting age population. 52.15 percent of the voting age population in District 23 was minority. In District 14, minorities constituted 40.39 percent of the voting age population.

This analysis addresses a statewide view of districts in which minorities reasonably could be characterized as having substantial access to the political process. This access is a product of the group’s sheer numbers in relation to the individual districts’ total population and voting age population. This Court’s analysis must proceed to an evaluation of minority voting strength in particular areas of the State. This is necessary because of the noteworthy minority population that is generally concentrated in three areas of the State. As a result of this concentration, a retrogression in access may result from fairly simple and minor movements of district boundaries.

The Dallas County area is one of the three areas containing a significant minority population. This population is heavily concentrated very near the exact geographic center of the county.

Under the previously existing congressional districting scheme, Dallas County was divided among four districts — Districts 3, 5, 6, and 25. District 3 drew its population from the northwest corner of Dallas County, the southeast corner of Denton County, and the southern part of Collin County. Congressional District 3 had a very small total minority population. Its total minority percentage was only 8.7 percent. In addition, minorities constituted only 7.88 percent of the district’s voting age population. Consequently, minorities had little electoral impact in District 3.

District 6, which ran along the south side of Dallas County and then southeast through central Texas, had a total minority population of 21.5 percent. Minorities constituted 18.08 percent of the district’s voting population. Standing alone, these figures demonstrate limited minority impact. In addition, it is critical to note that only a small proportion of District 6 actually impacted on Dallas County. The limited total minority population of District 6 was spread throughout the district’s boundaries, which ran from Parker County at its far northern point to Brazos County at its most southerly point.

Districts 5 and 24 had significant minority populations. The line serving as a boundary for these two districts was the Trinity River, which runs through the center of the minority community in Dallas. Under the pre-existing electoral system, Congressional District 5 had a minority population of 29.1 percent. Minorities constituted 26.18 percent of the district’s voting age population. In District 24, minorities comprised 37.4 percent of the total population and 32.68 percent of the voting age population.

These percentages manifested themselves in rather substantial political influence in both District 5 and 24.³³ Minority group members had access to the political process as a result of their ability to “swing” the outcome of a congressional election to one candidate or another. In the 1978 general election, the white congressional representative of District 24 actually lost the overall white vote to his opponent by approximately 5,000 votes. He carried black precincts, however, by approximately 11,000 votes or 75 percent of those cast by black voters. As a result, he won an election by 5,887 votes in which approximately 72,500 votes were cast. In the 1980 general election, the representative of District 24 carried the white vote against a black opponent only by about 10,000 votes. He received, however, 94 percent of the black votes cast. As a result, he defeated his opponent by 34,518 out of 152,862 total votes cast.³⁴

The white congressional representative of District 5 defeated his closest opponent in the 1978 general election by 852 votes. In the 1980 general election, he won by 3,044 votes. The Congressman lost the white vote in both elections by a significant margin. However, he carried over 90 percent of the black vote in those elections. His ability to capture such a high percentage of the vote from a group that actually constituted the minority of voters resulted in his success in the two elections.³⁵

In summary, a particularized evaluation of Dallas County as it existed under the previous plan reveals a concentrated minority with significant access to the political process in two congressional districts.

A second area of the State containing a concentrated minority population is the Harris County or Houston area. Under the pre-existing congressional apportionment plan, Harris County was divided among five congressional districts — Districts 7, 8, 9, 18, and 22.

A segment of the northeast corner of Harris County provided part of the population for Congressional District 9. The remainder of the district’s population was located in Galveston, Chambers, and Jefferson Counties. Minorities in District 9 comprised 29.6 percent of the total population and 26.77 percent of the voting age population. These percentages indicate the minority population had a degree of influence in District 9.

Congressional District 22 picked up part of its population from the southern tip of Harris County. The remainder of the district’s population was spread throughout all of Brazoria and Fort Bend Counties, and part of Waller County. District 22 had a total minority population of 31.2 percent. In addition, minorities constituted 27.99 percent of the district’s voting age population. Considering raw percentages, it is reasonable to conclude minorities possessed influence in District 22.

District 7, 8, and 18 were totally contained within the boundaries of Harris County. District 18, as already noted, possessed such a very high percentage of minorities that it reasonably could be labeled a “safe” minority district. While not a safe district, District 8, due to its high minority profile, provided minority group members with potentially significant impact. Minorities made up 40.1 percent of the total population and 36.07 percent of the voting age population. District 7, on the other hand, provided minorities with little impact. Only 14.0 percent of the total population was comprised of minorities, and minorities constituted a mere 12.86 percent of the voting age population.

An examination of the Harris County area reveals that, under the pre-existing congressional apportionment plan, minorities had a high level of political influence. One district, District 18, could be characterized as a safe minority district. Three others — Districts 9,22, and 8 — provided minority group members with moderate to significant political influence.

The third and final specific area of concentrated minority population exists in South Texas. This area, which borders on the Gulf of Mexico and the Country of Mexico, has a significant Hispanic population. Under the pre-existing congressional apportionment plan, there were basically six districts apportioned to the South Texas area — Districts 14, 15, 16, 20, 21, and 23.

Districts 14, 15, 16, 20, and 23 have already been discussed. Districts 15 and 20, with total minority populations of greater than 70 percent, reasonably could be labeled safe minority districts. While not safe districts, Districts 14, 16, and 23, with total minority populations of greater than 45.4 percent, provided minorities with potentially substantial political influence.

The remaining district — District 21 — had a minority population that comprised 28.5 percent of its total population. In addition, minorities made up 24.04 percent of the district’s voting age population. These percentages, while not dominant, indicate minority group members had the potential for being able to exercise an effective political voice.

In summary, minority group members had the potential for influence in the electoral process under the previous apportionment plan. Three districts had minority percentages greater than 70 percent. Two others had percentages greater than 50 percent. In areas of particularized minority concentrations, the pre-existing plan provided several districts in which, based upon percentages, minorities enjoyed the opportunity for electoral influence.

II. The Court’s Plan

The apportionment plan devised and implemented by this Court provides racial fairness. In other words, it does not lead to a retrogression in the position of racial minorities with respect to their effective exercise of the electoral franchise.³⁶

At the outset, the same three safe minority districts are maintained. These districts are Districts 15, 18, and 2Q. Under the Court’s plan, minorities constitute 72.21 percent of District 15’s total population. They constitute 66.61 percent of the voting age population. Under the Court’s plan, minorities in District 18 comprise 72.0 percent of the district’s total population and 66.17 percent of the voting age population. Finally, in District 20, minorities constitute 70.5 percent of the total population and 64.8 percent of the voting age population.

The Court recognizes that in each of these three districts there is some decline in the total minority population. In no instance, however, does the population fall below 70.0 percent. Districts 15,18, and 20 each experience a decline in the percentages. Once again, however, the decline is to a percentage that is so substantial it cannot reasonably be said to have resulted in a retrogression.

Minorities also maintain the three districts in which they had substantial access as a result of their percentages of the total population. The minority composition of District 16 actually increased on a percentage basis. Under the Court’s plan, minorities now make up 63.9 percent of the total population. They also enjoyed an increase in their percentages of voting age population. They now comprise 58.76 percent of the total voting age population. In District 23, the difference between the court-ordered plan and the pre-existing plan is miniscule. In District 14, there is a decline in the minority population in terms of both total population and voting age population. The decline, however, is to a percentage that still allows impact in the electoral process.

In addition to maintaining three safe districts and the two districts with minority population percentages greater than 50 percent, minorities gain an additional district with a minority percentage above 50 percent. Indeed, District 27, which is one of the three new districts Texas is entitled to receive, has a total minority population of 64.25 percent. Minorities constitute 58.23 percent of the voting age population. Due to its high minority profile, District 27 adjusts for the rise in Texas’ minority population relative to the rise in the State’s total population. Hispanic population in Texas increased from 18 percent of the total population to 21 percent between 1970 and 1980. While not required to guarantee proportional representation for minorities, an adjustment for the increase in minority population should be made in order to avoid implementing a plan that occasions a retrogression in the effect of the minority’s vote. District 27 serves that function. While this district may fall short of being a safe district, it does provide a potentially significant voice for minority group members.

At this point, the Court’s analysis is directed at determining whether, because of some shift in boundary lines, there is a retrogression in minority voting strengths. Accordingly, it is appropriate to address the particular areas of the State that have concentrated minority populations.

Dallas County is impacted by the same four districts that previously divided it. Additionally, the court-ordered plan adheres to county lines to the degree practicable in an effort to satisfy an express goal of the State Legislature. To the extent county lines are not preserved, the resulting district configurations are in accordance with traditional and historical configurations of congressional districts in the Dallas County area.³⁷

Minorities enjoyed very limited electoral influence in District 3 under the pre-existing apportionment plan. Because of this, it cannot be said the Court’s plan leads to a retrogression in minority voting strength, although the minority population is decreased 1.29 percentage points under the Court’s plan, from 8.7 percent to 7.4 percent. District 6 also has a lower minority population than it did previously. Once again, however, the small decline in minority population occurs in a district that previously provided most limited access. It cannot be labeled retrogression.

In the two dominant Dallas County districts — Districts 5 and 24 — the Court’s plan avoids a retrogression in minority voting strength. The plan utilizes the historical and natural boundary — the Trinity River— to divide the two districts. The result is that minorities comprise 31.87 percent of District 5’s total population and 28.12 percent of its voting age population. In District 24, minorities make up 45.7 percent of the total population and 40 percent of the voting age population.³⁸ In both instances, there is a slight increase in minority population of these two districts that serve as the foundation for minorities being capable of effectively exercising the elective franchise in Dallas County.³⁹

In the Harris County area, the Court’s plan does not cause a retrogression in minority voting strength. As previously noted, the Court’s plan preserves District 18 as a safe minority district. In addition, District 7 under the Court’s plan maintains its basic characteristics. It contained a small percentage of minorities originally, and continues to do so with a minority percentage of 10.3 percent. The impact on District 9 was to remove any part of Harris County from the congressional district’s boundaries. Minorities, nevertheless, maintained virtually the same impact previously enjoyed in District 9.

Districts 8 and 22 have different characteristics under the Court’s plan. This is a result of Harris County’s growth and the necessity of creating a new congressional district in the area. District 8 reflects a decline in minority population. The decrease, however, is not so dramatic that it rules out potential minority influence. Minorities continue to comprise 29.2 percent of the district’s total population and 25.8 percent of the voting age population. These percentages indicate minorities will continue to have the ability to impact elections significantly.

District 22 realized an arguably significant decrease in minority population. It now has a total minority population of 23.2 percent, as opposed to the 31.2 percent population under the previous plan. The drop in voting age population was from 27.99 percent to 20.93 percent.

This decline, together with the decline in District 8, does not amount to a retrogression in Harris County minority voting strength, however. This is because of the gain in a completely new district in which minorities will have potentially substantial electoral impact. The new district is District 25, which contains a minority population of 38.7 percent. Minorities make up 34.19 percent of the district’s voting age population.

Accordingly, considering the districts together, there is no retrogression in minorities’ voting strength. Generally, minorities in the Harris County area have one safe district — District 18. Additionally, there are three districts — District 8, 9, and 25 — in which minorities have a potential for influencing the outcome of elections.

Another means of examining the Harris County area is to exclude Districts 9 and 22 from the evaluation. This is done for a practical reason. The reason is District 9 is now entirely outside the boundaries of Harris County and District 22’s population is now comprised of a very small percentage of people living in Harris County. Focus on the four districts that, as a practical matter, are Harris County districts — Districts 7, 8, 18, and 25 — reveal substantial minority influence. Minorities have population percentages ranging from 29.2 percent to 72.0 percent in three out of the four districts. Consequently, the Court’s plan cannot be said to dilute minority voting strength in Harris County.⁴⁰

Finally, the effect of the court-ordered plan on the South Texas area must be examined. At the outset, it should be recognized that the South Texas area, due to its population growth, has been apportioned an additional district. There are now seven congressional districts bordering the Gulf of Mexico and the Country of Mexico.

As noted, the two safe minority districts that existed previously are preserved. In addition, Districts 14, 16, and 23 maintain significant minority populations. The total minority populations range from a low of 31.6 percent in District 14 to a high of 63.9 percent in District 16. In all three districts, minorities constitute greater than 27 percent of the voting age population. It should be noted that District 21 had a slight drop in minority population. However, this cannot be said to have caused a retrogression in minority voting strength for two reasons. First, the decline was small. Second, minorities had limited access in District 21 under the previous plan.

The major factor in South Texas was the creation of a new congressional district. This district, District 27, was to compensate for the large population growth in South Texas — particularly among Hispanics. This district serves two functions. It provides an additional district to help compensate for overall population growth in the State. It also, due to its minority profile, adjusts for the rise in minority population. As discussed, the district — with a minority population of 64.3 percent — provides minorities with substantial access to the political process.⁴¹ Consequently, the Court’s District 27, together with the remaining districts in South Texas, do not cause a retrogression in minority voting strength.

III. Conclusion

This Court, in fashioning a remedial decree, has sought two constitutional objectives. First, it has attempted to provide a plan that guarantees voter equality. Second, the Court has sought racial fairness. In recognition of the fact that apportionment is a legislative task in the first instance, this Court has deferred to the wisdom of the State Legislature in every instance it found acceptable under the standards applicable to a court-ordered plan.

The exercise of this unwelcome judicial responsibility is taken for the sole purpose of insuring and facilitating, to the degree practicable, a timely and orderly elective process provided for by the laws of this State. The Court’s plan is a temporary interim plan. It is to be in effect, however, for the 1982 primary and general elections, and for any other intervening or further congressional elections as may hereafter occur until such time as the Texas Legislature enacts a plan of its own for the apportionment of Texas’ congressional districts and such plan is found to be legally enforceable by this Court. It is to be emphasized that this order is without prejudice to the legislative and executive branches of the State of Texas to proceed with the consideration and adoption of a constitutionally permissible plan of congressional districting at a called or regular session of the legislature of the State of Texas for any congressional elections other than the 1982 primary or general elections. This Court expressly retains jurisdiction over this proceeding, including, but not limited to, applications for implementation, modification, enforcement, or other relief relating to the apportionment of Texas’ congressional districts.

The Court’s plan is attached hereto as an appendix.

APPENDIX

District 1

Same as Congressional District 1 as defined by Senate Bill No. 1, which was enacted by the First Called Session of the 67th Legislature of Texas on August 10, 1981, and signed by the Governor of Texas on August 14, 1981 (hereinafter referred to as S.B. 1).

District 2

Same as Congressional District 2 as defined by S.B. 1.

District 8

District 3 is composed of that part of Collin County included in census tracts 313.-02, 317, 318.01, and 320.01; and that part of Dallas County included in census tracts 2.01, 71.01, 73.01, 73.02, 74, 75.01, 75.02, 76.-01, 76.02, 76.03, 76.04, 77, 78.01, 78.04, 78.05, 78.06, 78.07, 78.08, 78.09, 79.02, 79.03, 79.04, 79.05, 80, 81, 82, 94, 95, 96.03, 96.04, 96.05, 96.06, 96.07, 96.08, 96.09, 97.01, 97.02, 99, 128, 129, 130.02, 130.03, 130.04, 131.01, 131.-02, 131.03, 132,133, 134.01,134.02,135,136.-01, 136.04, 136.05, 136.06, 136.07, 136.08, 136.09, 136.10, 137.01, 137.02, 137.04, 137.05, 137.06, 137.07, 137.08, 138.01, 138.02, 139, 140.01, 181.07, 181.08, 181.09, 181.10, 181.11, 181.12, 181.13, 181.14, 185.02, 190.03, 190.04, 190.06, 190.07, 190.08, 190.09, 190.10, 190.11, 190.12, 191, 192.01, 192.02, 192.03, 192.04, 192.05, 192.06, 192.07, 193.01, 193.02, 194, 195.01, 195.02, 196, 197, and 198, and block groups 1 and 4 of census tract 1.

District 4

Same as Congressional District 4 as defined by S.B. 1.

District 5

District 5 is composed of that part of Dallas County included in census tracts 2.02, 3, 4.01, 4.02, 4.03, 5, 6.01, 6.03, 6.04, 7.01, 7.02, 8, 9, 10, 11.01, 11.02, 12, 13.01, 13.02,14,15.01,15.02,16,17.01,17.02,18,19, 21, 22.01, 22.02, 23, 24, 25, 26, 27.01, 27.02, 28, 29, 30, 31.01, 31.02, 32.01, 32.02, 33, 34, 35, 36, 37, 38, 39.01, 39.02, 40, 71.02, 72, 83, 84, 85, 90.01, 90.02, 91.01, 91.02, 92.01, 92.02, 93.01, 93.03, 93.04, 98.01, 98.02, 100, 114.02, 115, 116.01, 116.02, 117, 118, 119, 120, 121, 122.02, 122.03, 122.04, 122.05, 123, 124, 125, 126, 127, 148.01, 148.02, 150, 167.02, 168, 169.01, 169.02, 169.03, 169.04, 170, 171, 172, 173.01, 173.02, 174, 175, 176.01, 176.02, 177, 178.01, 178.03, 178.04, 178.05, 179, 180, 181.-04, 181.05,181.06,181.15,182.01,182.02, 183, 184.01, 184.02, 184.03, 185.01, 186, 187, 188.-01, 188.02, 189, 190.13, 190.14, and 190.15, and block groups 2 and 3 of census tract 1.

District 6

Same as Congressional District 6 as defined in S.B. 1.

District 7

Same as Congressional District 7 as defined in S.B. 1.

Same as Congressional District 8 as defined in S.B. 1.

District 9

Same as Congressional District 9 as defined in S.B. 1.

District 10

Same as Congressional District 10 as defined in S.B. 1.

District 11

Same as Congressional District 11 as defined in S.B. 1.

District 12

Same as Congressional District 12 as defined in S.B. 1.

District 13

Same as Congressional District 13 as defined in S.B. 1.

District 14

Same as Congressional District 14 as defined in S.B. 1.

District 15

District 15 is composed of Atascosa, Brooks, Duval, Frio, Hidalgo, Jim Hogg, Jim Wells, Karnes, LaSalle, Live Oak, McMullen, San Patricio, Starr, Wilson, and Zapata counties; that part of Gonzales County included in enumeration districts 229, 230, and 231B; and that part of Nueces County included in census tract 37.

District 16

Same as Congressional District 16 as defined in S.B. 1.

District 17

Same as Congressional District 17 as defined in S.B. 1.

District 18

Same as Congressional District 18 as defined in S.B. 1.

District 19

Same as Congressional District 19 as defined by S.B. 1.

District 20

Same as Congressional District 20 as defined by S.B. 1.

District 21

Same as Congressional District 21 as defined by S.B. 1.

District 22

Same as Congressional District 22 as defined by S.B. 1.

District 23

Same as Congressional District 23 as defined by S.B. 1.

District 24

District 24 is composed of that part of Dallas County included in census tracts 20, 41, 42,43, 44, 45, 46,47, 48, 49, 50,51, 52,53, 54, 55, 56, 57, 59.01, 59.02, 60.01, 60.02, 61, 62, 63.1)1, 63.02, 64, 65, 67, 68, 69, 86.01, 86.02, 87.01, 87.03, 87.04, 87.05, 88.01, 88.02, 89, 101, 102, 103, 104, 105, 106, 107, 108.01, 108.02, 108.03, 109, 110.01, 110.02, 111.01, 111.02, 112, 113, 114.01, 140.02, 141.01, 141.-02, 141.03, 14Í.04, 142, 143.01, 143.02, 143.03, 143.04.144.01, 144.02,145,146,147,149,151, 152.01, 152.02, 153.01, 153.02, 154, 155, 156, 157, 158, 159, 160, 161, 162, 163, 164, 165.01, 165.02, 165.06, 166.01, 167.01, and 199; and that part of Tarrant County included in census tracts 1217.02, 1218,1219.01, 1219.02, 1220, 1221, 1222, 1223, 1224, and 1229, and block groups 4, 5, 6, 7, 8, and 9 of census tract 1130.

District 25

Same as Congressional District 25 as defined by S.B. 1.

District 26

District 26 is composed of Denton County; that part of Collin County included in census tracts 303, 304, 305, 306, 307, 314, 315, 316.01, 316.02, 316.03, 316.04, 316.05, 316.06, 316.07, 318.02, 318.03, 319, 320.02, and block groups 4, 5, and 6 of census tract 308; and that part of Cooke County included in enumeration districts 325, 328, 336, 337, 338A, 338B, 339T, 339U, 340T, and 340U; and that part of Tarrant County included in census tracts 1013.01, 1023.02, 1042.01, 1042.02, 1054.01, 1054.03, 1054.04, 1055.01, 1055.02, 1055.03, 1055.04, 1056, 1057.01, 1057.02, 1065.02, 1065.03, 1065.04, 1065.05, 1108.03, 1109.01, 1109.02, 1110.01, 1110.03, 1110.04, 1112.01, 1113.01, 1113.02, 1115.03, 1115.04, 1115.05, 1115.06, 1115.07, 1115.08, 1115.09, 1115.10, 1131, 1135.03, 1135.04, 1135.05, 1135.06, 1136.03, 1136.04, 1136.05, 1137.01, 1137.02, 1216.01, 1216.04, 1216.05.1216.06.1216.07.1217.01, 1225,1226, 1227, and 1228, and block groups 1, 2, and 3 of census tract 1130.

District 27

District 27 is composed of Cameron, Kenedy, Kleberg, and Willacy Counties; and that part of Nueces County not included in District 15.

1 . The constitutionality of the Voting Rights Act was affirmatively determined in South Carolina v. Katzenbach, 383 U.S. 301, 86 S.Ct. 803, 15 L.Ed.2d 769.

2 . The order also postponed the filing deadlines for prospective candidates for the Texas State Board of Education, which is composed of one member elected from each congressional district established by law. Texas Educ.Code Ann.art. 11.21 (Vernon 1972).

The sixteen districts affected by the order were those districts directly affected by the constitutional and statutory challenges to S.B.

1. The remaining 11 congressional districts as defined by S.B. 1 were left unaffected in an effort to avoid intrusion upon the Texas election process any more than necessary.

3 . It should be noted that the Supreme Court “think[s] it clear that Congress intended to provide [jurisdictions covered by the Voting Rights Act] with an expeditious alternative to declaratory judgment actions.” Morris v. Gressette, 432 U.S. 491, 97 S.Ct. 2411, 2420, 53 L.Ed.2d 506 (1977). The unseemly delay, inattention, and inactivity of the office of the Attorney General of the United States provided the State of Texas with anything but an expeditious mechanism for seeking approval of its congressional apportionment plan. Additionally, it should be noted that the three-page objection letter transmitted by the office of United States Attorney General over four and one-half months after the original submission fails to demonstrate that a careful and detailed analysis of the State’s submission was made.

4 . Defendants, in their answer to plaintiffs’ amended complaints, denied that the mere existence of an apportionment of 27 congressional seats to Texas makes it impossible to utilize the existing 24 congressional districts. In support of their denial, defendants refer to 2 U.S.C. § 2a(c)(2), which provides that “if there is an increase in the number of Representatives, such additional Representative or Representatives shall be elected from the State at large and the other Representatives from the districts then prescribed by the law of such State.”

Defendants, however, also indicated in their answer to plaintiffs’ amended complaints that they agreed this Court should implement an interim plan of its own for the 1982 elections. This is consistent with the statements made by counsel for defendants at the February 9, 1982 hearing before this Court. At that time, defendants’ counsel stated, “the State does not object to the court granting the amended motions or amended petitions and thereby assume jurisdiction of this matter. At that point in time the State maintains that the court does have the jurisdiction to draw an interim plan and the court should undertake that jurisdiction.” Record, February 9, 1982, at 12. Counsel later stated, in response to a question from the Court regarding whether the State requested the Court to enter an interim plan, “Yes, Your Honor. It is — -on the holding of elections under the existing districts, not only are they malapportioned and cause problems on the one hand, but also they necessitate running three congressmen on an at-large basis state-wide which is not preferable.” Id. at 13. This sentiment was echoed by counsel for defendants Upham and Clifford.

5 . The order of February 15, 1982 also postponed the filing deadlines for prospective candidates for the Texas State Board of Education.

6 . Article 3, Section 28 of the Texas Constitution establishes and explains the functions of another state body — the Texas Legislative Redistricting Board. This Board is given authority, in certain circumstances, to apportion the State Senate and/or House of Representatives. Its authority, however, does not extend to congressional apportionment.

7 . At the outset, this Court expressly determines that the apportionment plan included in this opinion is a court-ordered plan, as opposed to one enacted by an appropriate body of the State of Texas. The State of Texas has not purported to enact an apportionment plan or exercise any legislative judgment since S.B. 1 was made legally unenforceable by the section 5 objection letter of the office of the Attorney General of the United States. Indeed, the representatives of the State of Texas have expressly asked that this Court fashion an interim plan. Although this Court incorporates much of S.B. 1 into its own plan, the completed plan represents the remedial directive of this federal court. As a court-ordered plan, no section 5 preclearance is necessary. See McDaniel v. Sanchez, 452 U.S. 130, 101 S.Ct. 2224, 68 L.Ed.2d 124 (1981).

8 . This Court, throughout this opinion, makes reference to race or color in the context of the constitutional requirement that the Court implement a fair plan. This reference is made for convenience only. As will be noted in greater detail, this Court recognizes that it is obligated to follow the standards of section 5 of the Voting Rights Act of 1965. Section 5 contemplates protection against discrimination for not only racial minorities, but also language minorities. See 42 U.S.C. §§ 1973c and 1973b(f)(2). Accordingly, this Court recognizes that one of its objectives is to devise and implement a plan that is not only racially fair, but also fair to language minorities.

9 . The difficulties facing this Court in its effort to achieve its coterminous goals was precisely stated by the Fifth Circuit Court of Appeals in Kirksey v. Board of Supervisors of Hinds County, Mississippi, 554 F.2d 139, 152 (en banc):

Achieving one-man, one-vote political democracy without excluding minorities from political life is a complex task that challenges the best of intellects and requires examining many facets of the community, past, present and future. The problem is not susceptible of simplistic solutions, however seductive they may appear. No mechanistic solution is an alchemist philosopher’s stone that will turn all the problems of the past and present to future gold.

10 . This Court, in fashioning its remedial plan, relies in large part on the Supreme Court’s decisions in cases involving the apportionment of state houses or senates. In doing so, however, the Court acknowledges that the Supreme Court applies stricter standards when evaluating the legitimacy of a congressional apportionment plan than it does when evaluating a plan that apportions a state house or senate. Mahan v. Howell, 93 S.Ct. at 983 citing Kirkpatrick v. Preisler, 394 U.S. 526, 89 S.Ct. 1225, 22 L.Ed.2d 519 (1969); Gaffney v. Cummings, 412 U.S. 735, 93 S.Ct. 2321, 2325-26, 37 L.Ed.2d 298 (1973). This Court, accordingly, adjusts for the stricter standards when applying these teachings.

11 . The Supreme Court has also noted in the context of evaluating legislative plans:

The equal protection clause requires that legislative districts be of nearly equal population, so that each person’s vote may be given equal weight in the election of representatives .... It was recognition of that funda-

mental tenet that motivated judicial involvement in the first place in what has been called the “political thicket” of legislative apportionment. Baker v. Carr, [369 U.S. 186] 82 S.Ct. 691 [7 L.Ed.2d 663] (1962).

Connor v. Finch, 97 S.Ct. at 1834.

12 . To illustrate, if hypothetical Congressional District A has a total population of 100 people and Congressional District B has a total population of ten people, persons living in Congressional District A are underrepresented, while those living in Congressional District B are overrepresented. This is because both districts are allowed a single representative. Since the solitary congressman from District A represents 100 people, the voters in his constituency are casting ballots worth Vio the value of those cast by the people living in District B.

If Districts A and B were the only two congressional districts in the state, the ideal population for a congressional district would be 55 people. As a result, District A would have a variance of +45 people from the population norm. It would have a deviation of +81.82%. District B would have a variation of -45 people from the population norm and a deviation of -81.82%.

13 . The de minimis variation requirement is an outgrowth of the stricter standards a federal court faces when it prepares its own remedial decree. The Supreme Court “has tolerated somewhat greater flexibility in the fashioning of legislative remedies for violations of the one-person/one-vote rule.” McDaniel v. Sanchez, 101 S.Ct. at 2230. See also Mahan v. Howell, 410 U.S. 315, 93 S.Ct. 979, 35 L.Ed.2d 320 (1973).

14 . In Wyche, 635 F.2d at 1158, the Fifth Circuit noted that “ ‘[u]nder 10% deviations ... [have been] considered to be of prima facie constitutional validity ... in the context of legislatively enacted apportionments,” quoting Connor v. Finch, 431 U.S. 407, 97 S.Ct. 1828, 1835, 52 L.Ed.2d 465 (disapproving a district court’s apportionment of a state legislature with 16.5% deviations in the state senate districts and 19.3% deviations in the state house of representatives districts). See Gaffney v. Cummings, 412 U.S. 735, 93 S.Ct. 2321, 37 L.Ed.2d 298 (1973) (upholding state apportionment of state senate and house of representatives with 7.83% total deviation from population norm); White v. Regester, 412 U.S. 755, 93 S.Ct. 2332, 37 L.Ed.2d 314 (1973) (upholding state apportionment of Texas State House of Representatives with 9.9% total deviation from population norm).

While the de minimis threshold that this Court must satisfy in implementing a congressional apportionment plan is undefined and uncertain, this Court recognizes it is more stringent than the requirements faced by a state legislature that is seeking to impose an apportionment scheme. It is also more stringent than the requirements faced by a body seeking to implement an apportionment scheme for a state house of representatives or state senate.

Kirkpatrick v. Preisler, 394 U.S. 526, 89 S.Ct. 1225, 22 L.Ed.2d 519 (1969) and Wells v. Rockefeller, 394 U.S. 542, 89 S.Ct. 1234, 22 L.Ed.2d 535 (1969) are considered the leading cases regarding state apportionment of congressional districts. These cases invalidated state apportionment statutes providing for congressional districts having total deviations from the population norm of 5.97% and 13.1% respectively. The Court held in those cases that the Constitution permits only those population variances among congressional districts that “are unavoidable despite a good-faith effort to achieve absolute equality, or for which justification is shown.” Kirkpatrick, 89 S.Ct. at 1229. See also White v. Weiser, 93 S.Ct. at 2352. The Supreme Court has indicated that, in the context of state plans, the state must make a good faith effort to achieve precise mathematical equality. In the context of court-ordered plans, the Court “must precisely articulate the interests which justify any deviations from [equal population] standards.” Chapman v. Meier, 95 S.Ct. at 766.

15 . Of course, § 5’s reference to the guarantees set forth in § 1973b(f)(2) makes it necessary that the appropriate parties are satisfied the apportionment plan does not have a discriminatory purpose or effect regarding language minorities.

16 . It is, of course, the district court’s purpose that must be analyzed and not the purpose of the state legislature in proposing possible remedies, although the court may incorporate portions of the legislature’s proposals. As it applies to the case sub judice, the State’s proposal, S.B. 1, is legally unenforceable due to a § 5 objection of the United States Attorney General. When the Attorney General objected, this Court no longer was in a position to examine the legislature’s purpose in enacting the legislation. As a result, the only purpose to be examined is the purpose of this Court in implementing its own plan.

It might be argued that this Court should examine the purpose behind the State’s enactment of the apportionment plan that has evolved into its proposed remedy in order to avoid the possibility of aiding the State in discriminating against minorities by doing indirectly what the State could not do directly. While this Court will discuss the § 5 effect standard in greater detail, it should be pointed out that the first element of a plaintiff’s claim that an apportionment plan constitutes an impermissible racial gerrymander in violation of the Constitution is to demonstrate the challenged legislation had a disproportionate impact or some injury in fact.

It is clear a demonstration of disproportionate impact or injurious effect, standing alone, is normally insufficient to establish a constitutional violation. City of Mobile v. Bolden, 446 U.S. 55 at 67, 100 S.Ct. 1490 at 1500, 64 L.Ed.2d 47 (1980); Village of Arlington Heights, 429 U.S. 252, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977); Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976). But see Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220 (1886); Gomillion v. Lightfoot, 364 U.S. 339, 81 S.Ct. 125, 5 L.Ed.2d 110 (1960). However, an important starting point and necessary element for those complaining of improperly motivated actions by the legislature is to demonstrate the legislation has the impact of diluting minority voting strength.

This Court has no intention of incorporating any part of a state proposal that has a disproportionate impact or injurious effect on minorities. It, therefore, has no intention of incorporating any part of a state proposal that could be subject to a valid constitutional challenge that it dilutes minority voting strength. Accordingly, there is no possibility that a purposefully discriminatory plan may be implemented indirectly.

17 . This Court in no way intends to indicate that it has determined the State of Texas acted with a malevolent purpose in passing S.B. 1. That question is simply not before this Court. This Court seeks only to demonstrate that if the district court possesses proper objectives in the creation of an apportionment plan, it satisfies, one of the § 5 standards.

18 . The plurality in City of Mobile stated, “The Fifteenth Amendment does not entail the right to have Negro candidates elected.” City of Mobile, 446 U.S. at 65, 100 S.Ct. at 1498-99. The plurality also held that the “right to equal participation in the electoral process does not protect any ‘political group,’ however, defined, from electoral defeat.” Id. at 1505. The Court’s decision in Whitcomb v. Chavis has been described as standing for the proposition that:

The people of the ghetto were entitled to participation in the political process and to representation as people, and the record did not show that they had been denied that. But they were not entitled to recognition and representation as poor black ghetto dwellers, nor on account of any other characteristic that might be typical of their race.

Taylor v. McKeithen, 499 F.2d at 905. In Whitcomb v. Chavis, the Supreme Court rejected the district court’s holding, which it characterized as “expressive of the more general proposition that any group with distinctive interests must be represented in legislative halls if it is numerous enough to command at least one seat and represents a majority living in an area sufficiently compact to constitute a single member district.” 91 S.Ct. at 1875.

19 . See Note, Group Representation and Race-Conscious Apportionment: The Roles of States and the Federal Courts, 91 Harv.L.Rev. 1847, 1855 (1978).

20 . Since “the realities of partisan politics” impact upon whether a district can even be characterized as a safe minority district, Wyche implicitly dictates that the federal courts faced with fashioning a remedial decree should not involve themselves in the question of bloc voting. As a result, the court is not allowed to make the assumptions necessary to create a “safe” district.

21 . It has been pointed out that remedial measures aimed at proportional representation in the election process cannot be equated with remedial racial programs in other contexts by virtue of the numerous extraneous factors involved in the political arena. Wyche v. Madison Parish Police Jury, 635 F.2d at 1161; Marshall v. Edwards, 582 F.2d 927.

Without question, this Court deplores the fact of life that some people choose between candidates because of the color of skin. On the other hand, great care must be taken to avoid any so-called remedial measure that, instead of aiding the integration of races, may perpetuate a separation or severance by advocating that one race is entitled to be represented by a member of that race. It has been said that

Racial electoral registers, like religious ones, have no place in a society that honors the Lincoln tradition — “of the people, by the people, for the people.” Here the individual is important, not his race, his creed, or his color. The principle of equality is at war with the notion that District A must be represented by a Negro, as it is with the notion that District B must be represented by a Caucasian, District C by a Jew, District D by a Catholic, and so on.... The racial electoral register system weights votes along one racial line more heavily than it does other votes. That system, by whatever name it is called, is a devisive force in a community, emphasizing differences between candidates and voters that are irrelevant in the constitutional sense. Of course race, like religion, plays an important role in the choices which individual voters make from among various candidates. But government has no business designing electoral districts along racial or religious lines.

Wright v. Rockefeller, 376 U.S. 52, 84 S.Ct. 603, 611, 11 L.Ed.2d 512 (1964) (Douglas, J., dissenting) (citations omitted). See also Regents of University of California v. Bakke, 438 U.S. 265, 98 S.Ct. 2733, 2783-84, 57 L.Ed.2d 750 (1978) (Brennan, J., concurring); City of Mobile, Alabama v. Bolden, 100 S.Ct. at 1511 (Brennan, J., concurring); Carey, 97 S.Ct. at 1020 (Burger, C. J., dissenting); Taylor v. McKeithen, 499 F.2d at 909-910.

22 . “Effective participation does not mean the right to have members of one’s race, sex, or group elected to political office.” Lodge v. Buxton, 639 F.2d at 1374.

23 . This is the clear lesson to be learned from the Supreme Court’s admonitions against a court utilizing multimember districts when fashioning apportionment plans. The warnings are a result of the Supreme Court’s view that multimember districts “tend to submerge electoral minorities and overrepresent electoral majorities.” Wise v. Lipscomb, 98 S.Ct. 2493, 2497-98 n.5 and cases cited therein. See also Whitcomb v. Chavis, 91 S.Ct. at 1969 quoting Fortson v. Dorsey, 379 U.S. 433 at 439, 85 S.Ct. 498, 501, 13 L.Ed.2d 401 and Burns v. Richardson, 384 U.S. 73 at 88, 86 S.Ct. 1286 at 1294, 16 L.Ed.2d 376.

24 . Such a formula conceivably could be fashioned and applied by a legislative body facing the responsibility of apportionment. That body may consider the full panoply of political factors involved. This Court has no such option.

25 . Of course, the Court cannot lose sight of the fact of life that districts characterized as “safe” enhance the access of minority group members to a greater degree than do districts in which minority group members have only a degree of impact such that they may be able to affect the outcome of an election.

26 . A district containing a minority population of sixty-five percent or greater is generally recognized by the Justice Department as a district capable of electing a minority representative. See Beer. As a result, an apportionment change that reduces a district’s minority population to some percentage below 65% may reduce the minority group’s impact.

27 . Of course, the loss of influence in surrounding districts may be compensated for by enhanced political access elsewhere in the state. A legislature or court must be wary, however, that its scheme “packs” minorities, thereby causing a retrogression in electoral access in one area of the state with no concomitant increase in access elsewhere. Without such a clear accompanying increase, the plan reasonably may be labeled retrogressive.

Of course, this Court, in fashioning a remedial order, is cognizant of how a districting scheme that “fragments” a concentrated minority group may dilute minority voting strength. If this fragmenting occurs at a time and in a manner that augments or diminishes voting strength previously enjoyed, it reasonably may be characterized as a retrogression in access to the political process.

28 . The overall effect of this Court’s plan is discussed in greater detail. For the purpose of this analysis, however, District 25 has a minority population of 38.7%. District 26 has a minority population of 7.01%, and District 27 has a minority population of 64.25%. The average population percentage for the three new districts, therefore, is 36.65%.

29 . The Court recognizes that this adjustment for the three new congressional districts smacks of an attempt to achieve “proportional representation.” However, the Court in no way attempts to provide proportional representation statewide. The sole purpose for a formula that considers mathematical potential is to provide some rational, reasonable, and equitable basis for comparing two plans that inherently elude mechanical comparison.

The mechanisms utilized by the Court to adjust for an increase of three congressional districts is not thought to be the only method for adjustment. Perhaps they are not the best means. Undoubtedly they have weaknesses. They are, however, two separate mechanisms for comparing election systems that, because of differences in size, are much like apples and oranges. They provide a reasonable and rational method for determining whether the Court’s remedial decree satisfies the nonretrogression principle of Beer.

30 . The minority population percentage and the percentage of minorities in the voting age population for the congressional districts as they were defined previously are as follows:

31 . As a purely factual matter, these three safe districts did elect minority representatives. Districts 15, 18, and 20 were represented by Congressmen de la Garza, Leland, and Gonzales, respectively.

32 . By expressly setting out the minority percentages in these specific districts, this Court is in no way attempting to state that a fixed numerical percentage provides access. In its evaluation, however, the Court must make reasonable determinations regarding influence. Accordingly, it examines the statewide apportionment plan that previously existed and points to those districts that had significant numerical minority populations as a starting point for evaluating whether the Court’s plan causes a retrogression in minority access to the political process.

33 . For analysis of minority influence on congressional elections in pre-existing Districts 5 and 24 see Hearings on Apportionment of Texas Congressional Districts Before the Committee of the Whole Senate, 67th Legislature of Texas, 1st Called Session (July 14, 1981) (testimony of Professor Larry Carlyle).

34 . ELECTION DATA FOR PRE-EXISTING CONGRESSIONAL DISTRICT 24

1978 General Election

Martin Frost 39,201

Leo Berman 33,314

1980 General Election

Martin Frost 93,690

Clay Smothers (Black) 59,172

35 . ELECTION DATA FOR PRE-EXISTING CONGRESSIONAL DISTRICT 5

Jim Mattox 35,524

Tom Pauken 34,672

James Michael White 397

Jim Mattox 70,892

Tom Pauken 67,848

J. B. Jackson 295

36 . The plan’s racial fairness in terms of retrogression is discussed in greater detail. Minority population comparisons of the pre-existing plan and the Court’s plan are as follows:

37 . The plan for Dallas County that is utilized by the Court is S.B. 3 or the Mauzy-McKnight proposal. See Defendant’s Exhibit 2, C. 2. The plan originated as a committee amendment by State Senator Mauzy during the First Called Session of the Texas Legislature. S.B. 3 was denied enactment by a vote of 15--14. It was replaced by a proposal that ultimately passed through the state senate by a 15-14 vote.

38 . These percentages of the voting age population do not include the voting age population for block groups 2 and 3 of census tract 1 in Dallas County. The total population for these block groups is 0.28% of District 5’s total population. Additionally, they do not consider the voting age population for block groups 4, 5, 6, 7, 8, and 9 of census tract 1130 in Tarrant County. The total population for these block groups is 0.31% of District 24’s total population.

39 . As noted, this Court attempts to give deference to the choice of the Texas State Legislature, as expressed in S.B. 1, to the degree possible. The standard applied by this Court is that deference is paid except where the Legislature’s choice would interfere with this Court’s achieving either of its two coterminous constitutional objectives. Consequently, this Court determines that it is unable to incorporate the provisions of S.B. 1 that affect the Dallas County area.

S.B. l’s apportionment scheme for Dallas County severely affected the two minority districts in which minorities had crucial swing-vote influence. In District 5, minorities would have comprised a mere 12.1% of the total population and 10.11% of the voting age population. Minorities would have comprised 63.8% of the total population of District 24. However, they would have constituted only 57.96% of the voting age population. Significantly, District 24 under S.B. 1 would not appear to create a safe minority district. At best, it would provide minorities with a greater ability to swing an election to one candidate or another. Of course, minorities already possessed substantial swing-vote influence in District 24.

While not creating a safe minority seat in District 24, S.B. 1 would destroy the effective swing-vote influence minorities previously enjoyed in District 5. Since it is the Court’s plan that is being evaluated under strict standards of racial fairness, an apportionment scheme resembling S.B. 1 would result in a severe retrogression in the Dallas County area. Accordingly, this Court determines that deference in this instance would be inappropriate.

This Court recognizes that certain minority group members expressed a desire for a “safe" minority district in Dallas County. After consideration of numerous political factors, and substantial legislative battling, the Texas Legislature decided on the configurations in S.B. 1, and created the “non-safe” District 24. The legislature was at liberty to engage in such considerations. This Court, in fashioning a nonretrogressive apportionment plan does not have that privilege. It must evaluate the new plan without access to questions regarding the ability of separate minority groups to form coalitions or other political concerns. Its concern is whether the new plan reduces the voice of minorities. It is not before this Court to determine whether considerations valid in the legislative context justify simply increasing swing-vote influence in one district at the expense of the influence previously enjoyed in a neighboring district. This Court determines, however, that, in the context of a court-ordered apportionment plan, such a trade-off would result in a retrogression in the position of racial minorities with respect to their effective exercise of the electoral franchise.

40 . This Court is not required to maximize minority potential, even if it could be done. Indeed, it is directed not to engage in race-conscious line-drawing. The Court has been asked, however, to apportion Harris County in a manner that would increase District 25’s minority profile to 60.2% of the district’s total population. In order to facilitate this objective, the minority population of District 18 would have to be reduced substantially. The minority population would drop from 72.0% under the Court’s plan to 64.9%. Such a drop would jeopardize a proven safe minority district in Harris County and arguably only increase the ability of minorities to swing an election one direction or another. Consequently, the Court chooses to defer to the Legislature’s choice, particularly since it does not cause a retrogression in minority voting power.

41 . District 27 under the court-ordered plan has a higher minority population than did S.B. l’s District 27. Conversely, District 15 under the Court’s plan has a smaller minority population. This Court determines that its configurations are necessary to adjust for increases in Hispanic population and, thereby, avoid a retrogression in minority voting strength.

This determination, however, should not be perceived as a failure to defer to the State’s choice. The problem addressed by the Court— adjusting for increases in Hispanic population to avoid retrogression — is substantially the same problem that prompted the Attorney General of the United States to interpose an objection to S.B. 1. As a result, the State of Texas, through its counsel, has indicated that its alternate position is “to ask this Court to draw an interim plan incorporating S.B. 1 in its entirety with the exception of the corrective factor for Districts 15 and 27, those being the districts that were objected to and that have been incorporated in the submission we have prepared and offered to the Court.” Hearing, February 9, 1982, at 12.