Graves v. Barnes

¶1(concurring specially):

¶2I concur in the result of Section Four (4) of the Opinion.

¶3(concurring in part and dissenting in part).

¶4I concur in the court’s opinion in all respects, with the exception of its refusal to grant relief in the action brought in the Houston Division of the Southern District of Texas by certain black voters of Harris County, challenging the Reapportionment Plan of the Texas Senate as that plan applies to Harris County. The plaintiffs contend: (1) That the State Senatorial Districts in Harris County, created by the Legislative Redistricting Board in 1971, were intentionally designed by the Board to cancel, dilute or minimize the voting strength of blacks in Harris County; or, alternatively, (2) that the effect of the creation of such new State Senatorial Districts by the Board was to cancel, dilute or minimize the voting strength of such blacks.

¶5Harris County is a metropolitan county dominated by the City of Houston. Two political experts, Professor Richard *745W. Murray of the University of Houston and Mr. Searcy Braeewell, a practicing attorney and registered lobbyist, testified to the political history and voting patterns of Harris County within recent years. The testimony of the experts coincided closely in many respects. Their testimony establishes that the dominant political party in Harris County is the Democratic Party. However, the western part of Houston and Harris County is a Republican stronghold. The Democratic Party in Harris County has a well defined cleavage between liberals and conservatives. The conservative faction of the Democratic Party controlled the single Harris County seat in the Texas Senate until 1966. However since that date, the situation has changed to the extent that, in the present five member delegation, there are four liberal Democrats and a Republican.

¶6The evidence shows that the inner city of Houston, defined as the original fifty census tracts of the 1940 census, has a population of 431,000. Most of the residents of the inner city are black, but substantial numbers of Mexican-Americans and poor whites also reside there. Black voters in this area favor the Democratic Party overwhelmingly and support liberal Democrats to the same extent. Past voting patterns in the inner city demonstrate that, in legislative races, economic issue are paramount in the voters’ minds, and that blacks and blue-collar voters ally themselves to elect liberal legislators. Consequently, despite the fact that blacks constituted a minority in the four senatorial districts that included a part of the inner city under the 1965 redistricting plan, the political viewpoint of blacks — liberal Democratic — was held by all four Senators. Moreover, one of the Senators, the Honorable Barbara Jordan, is a black.

¶7In the redistricting plan for Harris County adopted by the Legislative Redistricting Board in 1971, the core of the city was again divided among four senatorial districts. Professor Murray categorized the new districts, as follows:

¶8District 11 contains a 37% black population. The prevailing white majority is predominantly white collar middle class and upper middle class. However, the white voting pattern likely will be in favor of conservative Democrats and Republicans.

¶9District 15 is 19% black. Included in its eastern part, near the heart of the city, are some of the city’s poorest neighborhoods. In the western part of the district, on the other hand, are located neighborhoods of middle and upper class whites. Among these neighborhoods is the River Oaks area, one of the most affluent residential areas in the United States. The white voting pattern will probably favor conservative Democrats and Republicans, similar to the pattern of white voting in District 11.

¶10Districts 6 and 7 contain 23% and 18% blacks, respectively. These districts reflect the same demographic and probable voting patterns as Districts 11 and 15. Districts 6 and 7, however, are somewhat more homogeneous than Districts 11 and 15.

¶11District 13, containing only 4% black, is in a horseshoe shape, encompassing the eastern, western and northern suburbs of Harris County. In its eastern part, the district is for the most part liberal Democratic. To the north and west, the district becomes increasingly conservative.

¶12Mr. Bracewell’s expertise in Harris County politics is derived from his experience as a member of the Texas House of Representatives for two years, as a member of the State Senate from 1950 to 1959, and as a lobbyist for various corporate interests to the Texas Legislature since the latter date. At the last session of the Legislature, his clients included the Texas Association of Taxpayers, with a membership of more than 5,000, various utility companies, and other corporate interests. In representing his clients, Mr. Braeewell opposed bills to enact a corporate income tax and to establish a utilities commission. The bill to create a utilities commission did not come to *746the Senate floor for a vote. The income tax measure was defeated in the Senate by a vote of 16 to 15. Generally, liberal Senators favored enactment of the corporate income tax bill, whereas conservatives were opposed to it. Mr. Bracewell, therefore, possessed a legitimate interest in electing State Senators of a conservative philosophy from Harris County.

¶13In his deposition, Mr. Bracewell described, with admirable candor, his analysis of the requirements to be met, if conservatives were to succeed in electing conservative Democrats to the State Senate : It would be necessary, first, to devise two districts with a sufficient number of Democrats to defeat Republicans in the General Election; and, second, provide for a contingent of conservative voters in each district large enough to elect conservative candidates over liberal candidates in the Democratic Primary Elections. To accomplish this purpose, Mr. Bracewell examined and studied election returns, and decided that the requisites of the situation demanded that liberal (black) voting precincts in the inner city be rearranged.

¶14As noted in the majority opinion of the court, the Texas Legislature failed to enact a bill to redistrict the Texas Senate at its last session, as required by the Texas Constitution. Under the provisions of the Constitution, the responsibility for preparing a redistricting plan then devolved upon the Legislative Redistricting Board, whose ex-officio members were the Honorable Crawford Martin, Attorney General, the Honorable Ben Barnes, Lieutenant Governor, the Honorable Gus Mutscher, Speaker of the House of Representatives, the Honorable Robert Armstrong, Land Commissioner, and the Honorable Robert S. Calvert, Comptroller.

¶15The depositions of the members of the Legislative Redistricting Board indicate very clearly that Lieutenant Governor Barnes had effective control of the redistricting process. The Lieutenant Governor delegated the task of actually drawing the maps to Robert Spellings, his executive administrative assistant. Gregg Hooser, an employee of the Joint Committee for Legislative Redistricting, assisted Spellings in drawing the maps. Hooser, prior to beginning the actual drafting, had collected and had available to him massive amounts of data regarding racial compositions of census tracts, voting results covering several years, and socio-economic profiles of census tracts.

¶16Mr. Bracewell testified that he consulted personally with all members of the Legislative Redistricting Board concerning State Senatorial Districts in Harris County except Commissioner Armstrong, with whom he discussed the situation by telephone. He consulted several times with the Lieutenant Governor and Mr. Spellings. He also spoke with Mr. Hooser regarding redistricting about ten times. On one of these occasions, Mr. Bracewell brought with him a colored map whose origin is obscure, but which came to be called the “Houston Chamber of Commerce map.” This map, setting out proposed State Senatorial Districts in Harris County, was presented by him to Mr. Spellings. Mr. Spellings testified that the map had “a breakdown behind it that showed or that gave the Black population in each of those Senatorial Districts.”

¶17Although literally hundreds of citizens contacted the members of the Legislative Redistricting Board as to redistricting, in person, by correspondence, and by telephone and telegraph, and many of this number presented their own plans, Mr. Braeewell’s views clearly appear to have carried the day, insofar as Harris County’s State Senatorial Districts are concerned. Professor Murray contended that the map finally adopted by the Legislative Redistricting Board bears such a marked similarity to the Houston Chamber of Commerce map that the statistical probability of the two plans being unconnected is virtually nil. A comparison of the two maps, particularly the serpentive course of the boundaries of the Senatorial Districts in the area of *747the inner city, will fully bear out Professor Murray’s opinion.1

¶18Mr. Bracewell testified that, under the Plan finally adopted by the Legislative Redistrieting Board, two conservative Democrats “have a chance to be elected [as well as] two liberal Democrats and possibly one Republican.” Professor Murray identified the two most conservatively oriented districts as Districts 7 and 15. It is worthy of note that two conservative Democrats, Representatives Lemmon and Ogg, who are “members of the team that has dominated the House of Representatives in recent years,” and who have enjoyed the support of Mr. Bracewell in their past races, announced for the office of State Senator in Districts 7 and 15, respectively. Professor Murray further testified:

“[I]f one had to take a hundred plans that would be construed randomly ., I think this would be one of the two or three that would be most favorable to the interests of Mr. Ogg and Mr. Lemmon.”

¶19It was Professor Murray’s further opinion that these districts, as drawn, are “very, very favorable to the election of Mr. Lee [sic] and Mr. Ogg.”

¶20Under the 1965 redistricting plan, District 11 originally contained approximately 47% or 48% blacks. Additionally, the white majority was made up primarily of lower middle class blue collar workers. As already mentioned, voting patterns indicate that this class of whites, where economic issues are at stake, will form coalitions with blacks to elect legislators, black or white. Such a coalition was, in fact, formed when Senator Barbara Jordan was elected to the Senate from District 11 in 1966. In contrast, the new District 11, although it contains 37:%- blacks — just as did the old District at the time of the 1970 census — , has blacks paired with middle class and upper middle class whites. Analysis of voter registration, voter turnout, and precinct results reveal that the whites will have political strength far out of proportion to their 65% majority. Voting habits of the whites in District 11 also demonstrate that, in a State Senatorial contest, the likelihood of forming a coalition with blacks is unlikely. Although Senator Jordan refused to concede that she could not be elected in the new Senatorial District 11, it was the opinion of Professor Murray that the four Senatorial districts are so arranged that no possibility exists for a black to be elected. Even Senator Jordan felt, however, that it would have been more difficult for her to prevail in the new district than the old.

¶21The net effect of the Legislative Redistricting Board’s action has been, again, to fragment the inner city black voters into four districts. But while in the past these blacks’ political viewpoint was represented by four liberal Democrats, one of them black, henceforth they are likely to be represented, in two of the inner city districts, by Senators belonging to a faction of the Democratic Party which has been, in the past, inimical to the interests of blacks.

¶22It is settled beyond any doubt that a claim of racial gerrymandering presents a justiciable issue. Gomillion v. Lightfoot, 364 U.S. 339, 346, 81 S.Ct. 125, 5 L.Ed. 2d 110 (1960). Subsequently, the Supreme Court in Wright v. Rockefeller, 376 U.S. 52, 84 S.Ct. 603, 11 L.Ed.2d 512 (1964), a case involving an attack on single member districts allegedly drawn on racial lines, apparently deemed the matter to be self-evident, for it did not even discuss justiciability before proceeding to the merits. In later cases, the ' lower courts have uniformly interpreted Gomillionand Wrightas foreclosing the matter. E. g., Smith v. Paris, 257 F.Supp. 901, 904 (M.D.Ala.1966); Sims v. Baggett, 247 F.Supp. 96, 104 (M.D.Ala. 1965).

¶23*748Proceeding now to the merits of the racial gerrymandering claim, the first question becomes that of the proper constitutional standard to be applied. In the cases involving attacks on multimember districts, the Supreme Court has articulated the test as follows: A multimember apportionment scheme is unconstitutional if, under the circumstances of a particular case, it operates to minimize or cancel out the voting strength of racial or political elements of the voting population. Whitcomb v. Chavis, 403 U.S. 124, 144, 91 S.Ct. 1858, 29 L.Ed.2d 363 (1971); Burns v. Richardson, 384 U.S. 73, 88, 86 S.Ct. 1286, 16 L.Ed.2d 376 (1966); Fortson v. Dorsey, 379 U.S. 433, 439, 85 S.Ct. 498, 13 L.Ed.2d 401 (1965). I am persuaded that the multimember district problem and the gerrymandering problem are sub-species and manifestations of a more basic problem. By whatever name the more basic problem is called, it amounts to this: discriminatory action whereby the party or political power group which actually accomplishes the redistricting uses its power to transform its actual voter strength into the maximum of legislative seats and to convert the other party’s actual voter strength into the minimum of legislative seats. Just as majority party bias or racial effect can be exaggerated by creating multimember districts large enough to submerge racial and political minorities, so the same result can be accomplished by conscious partisan line skewing. See Dixon, The Court, The People, and “One Man, One Vote”, Reapportionment in the Seventies 29-30 (Polsby ed. 1971); Dixon, Democratic Representation, 462 (1968). Thus, while I am not necessarily compelled by the internal logic of the similarity noted above, the fact that the Fortson-Burns-Whitcomb standard is used to solve one aspect of the basic problem is persuasive that the same standard should be used to solve another aspect of the same basic problem. Moreover, language in Gomillion v. Lightfoot, supra, 364 U.S. at 345, 347, 81 S.Ct. 125, 5 L.Ed.2d 110 and in Wright v. Rockefeller, supra, 376 U.S. at 56, 84 S.Ct. 603, 11 L.Ed.2d 512, supports the application of the Fortson-Burns-Whitcomb standard to the problem of racial gerrymanders.

¶24Applying the FortsomBums-Whitcomb criteria to the evidence adduced to support the claim of racial gerrymandering, I am of the opinion that the evidence more than amply supports a conclusion that the Senate districts in Harris County designedly operate to dilute, minimize, and cancel out the voting strength of blacks. Certainly, when the evidence of design is coupled with the manifest consequences and clear effect of the plan promulgated for Harris County, an inference of discriminatory design is compelled. See Smith v. Paris, supra. It should be pointed out that Commissioner Armstrong adamantly refused to sign the plan finally adopted by the Legislative Redistricting Board, because, in his opinion, the votes of the inner city blacks in Houston were diluted. He communicated his opinion to the Attorney General and the Lieutenant Governor, hence it can hardly be contended that the Board was unaware of the plan’s inherent vice.

¶25The spirit of the statement of a three-judge court in Alabama is applicable to the situation at hand: “The . plan adopted by the . . . Alabama Legislature was not conceived in a vacuum. If this court ignores the long history of racial discrimination in Alabama, it will prove that justice is both blind and deaf.” Sims v. Baggett, supra, 247 F.Supp. at 109. See Connor v. Johnson, 402 U.S. 690, 91 S.Ct. 1760, 29 L.Ed.2d 268 (1971); Sims v. Amos, 336 F.Supp. 924, (M.D.Ala.1972). Compare : Smith v. Allwright, 321 U.S. 649, 64 S.Ct. 757, 88 L.Ed. 987 (1943) ; Terry v. Adams, 345 U.S. 461, 73 S.Ct. 809, 97 L.Ed. 1152 (1953); United States v. Texas, 384 U.S. 155, 86 S.Ct. 1383, 16 L.Ed.2d 434 (1966).

¶26I am of the opinion that the Court would be justified in adopting Professor Murray’s plan as an interim solution to *749the problem before it.2 Although the Court requested both plaintiffs and defendants to submit plans at the conclusion of the case, Professor Murray’s plan is the only plan on file. His plan in no way cancels out, dilutes, or minimizes the black vote. Although his plan would make it likely that a black Senator would be elected from District 15, as shown on his plan, that result would not be an egregious inflation of the black vote, given the proportion of blacks living in Harris County.

¶27By this, I am not to be taken to mean that I believe blacks are necessarily entitled to proportional representation. The law appears to be to the contrary. Whitcomb v. Chavis, supra, 403 U.S. at 156, 91 S.Ct. 1858, 29 L.Ed.2d 363. I approach the problem from a pragmatic standpoint, trying at the same time to stay out of the political thicket. Reynolds v. Sims, 377 U.S. 533, 587, 84 S.Ct. 1362, 12 L.Ed.2d 506.