Untitled Texas Attorney General Opinion ( 1981 )

The Attorney General of Texas
May
30, 1981
Honorable Bob Bullock Opinion No. ``-350
Comptroller of Public Accounts
L.B.J. Building Re: Constitutionality of SB-800,
Austin, Texas 78174 Senate Redistricting Bill
Dear Mr. Bullock:
You ask us several questions in connection with Senate Bill 800,‘which
redistricts state senatorial positions. Your questions are directed at what
the Texas Legislature may do in drawing up a reapportionment plan. They
do not require us to determine the effect of the reapportionment ,plan which
the Senate has enacted, or whether the Senate could have developed an
alternate plan with particular characteristics. In any case, such inquiries
would involve the investigation and resolution of fact questions, which
cannot be done in the opinion process.
A brief discussion of the main principles governing reapportionment
will provide a useful context for our answers to your questions. In Reynolds
v. Sims, 377 U.S. 533, 568 (1964), the Supreme Court held that the equal
protection clause requires that seats in a state legislature must be
apportioned on a population basis. U.S. Con&. amend. 14, S2. An
apportionment plan which substantially dilutes the weight of some votes
when compared with votes of persons living in other parts of the state is
unconstitutional. B supfl! at 568. Districts must therefore
be as nearly of equal population as practicable. !$ at 577.
The Supreme Court has said that an apportionment scheme, on
particular facts, might operate to minimize or cancel out the strength of
racial or political elements of the population. Fortson v. Dorsey, 379 U.S.
433, 438-39 0965). Such an apportionment scheme would invidiously
discriminate against rights protected by the fourteenth amendment of the
United States Constitution. Burns v. Richardson, 384 U.S. 73, 88~(l966).
L
The federal Voting Rights Act of 1965 adds another standard against
which a reapportionment plan must be measured. It prohibits any state from
denying or abridging the right of any United States citizen to vote on
account of race, color, or membership in a language minority. 42 U.S.C.
SSl973 to 1973d. 1973k to 19731 (1976) . Under the Act. chamres in the
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Honorable Bob Bullock - Page Two - (m-350)
election laws, including reapportionment laws, must be submitted to the United States
Attorney General for hls approval. 42 U.S.C. Sl973c; Conner V. Wailer, 421 U.S. 656
fl975); see also 46 Fed. Reg. 874 (l981) (to be codified in 28 C.F.R. S51.12``c)).
We turn to your first question:
1. TEX. CONST. art. 3, sec. 28, directs the Legislature to
apportion the State into Senatorial districts agreeable to the
provisions of Section 25 of Article 3. Federal bIW requires
reapportionment to be based on equal population among
districts, within certain allowable deviations. Within these
allowable deviations, must the Legislature take into account
the number of qualified electors residing within each district
as dictated by TEX. CONST. art. 3, sec. 25?
Article IIl, section 25 of the Texas Constitution provides in part that “the State
shall be divided into Senatorial Districts . . . according to the number of qualified
electors, as nearly as may be . . . .” The section 25 requirement that the state be
divided into senatorial districts on the basii of qualified electors is unconstitutional on
its face as inconsistent with the federal constitutional standard. In Kilgarlin v.
Marti C.A. No. 63-H-390 (W.D. Tex., January l&1965) (summary judgment), see also
mfi
gar 252 F. Supp. 404,4ll (S.D. Tex. 1966), the court held that
provision violated the equal protection clause of the fourteenth amendment of the
United States Constitution. It did not require apportionment of senatorial districts on
a population basii resulting in districts as nearly of equal population as is practicable.
-See Reynolds v. Sims, supra at 577.
Your second question is as follows:
2. May an apportionment plan split counties into two or more
Senatorial districts when an alternative plan can or could be
drawn which maintains county integrity?
No provision ln Texas or federal law invalidates an apportionment plan which
Splits counties into two or more senatorial districts or requires a plan to maintain
county integrity. Article III, section 25 of the Texas Constitution merely requires that
senatorial districts shall be of contiguous territory. Compare Tex. Const. art III, 926
(representative’s districts shall follow County lines). e Smith v. Craddlck, 471 S.W.2d
375 (Tex. 1971).
Your third question is as follows:
3. When a county has sufficient population to justify one or
more Senatorial districts entirely within that county% boun-
daries, must an apportionment plan provide that county with
the maximum number of full Senatorial districts which can
be contained within the county?
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Honorable Bob Bullock - Page Three (Mu-350)
We have neither found, nor have we been directed to any provision of state or
federal law which requires a county to be given the maximum number of full senatorial
districts which can be contained within it.
Your fourth question is as follows:
4. May an apportionment plan combine primarily rural counties
with urban areas in a single Senatorial district, when alter-
native plans can or could be adopted which preserve rural
communities of interest?
No state or federal law prohibits the combination of rural and urban areas in a
sinele senatorial district. The Suoreme Court has stated that “economic and other
g&p interests” are insufficient to justify deviation from strict population equality.
Reynolds v. Sims, supra at 579-80. See Kirkpatrick v. Preisler, 394 U.S. 526 U969).
Thus, federal law does not require sta=to recognize the common interests of groups
in reapportionment. It does, however, permit them to do so. -See Kelly v. Bumpers,
340 P. Supp. 568, 578 03.D. Ark. 1972).
In Gumfory v. Hansford County Commissioners Court, 561 S.W.Bd 28 (Tex. Civ.
App.-Amarillo 1977, writ ref’d n.r.e.1. the court dealt with a challenee to countv
commissioners precincts &awn so that in each precinct city dwelle;s formed a
majority over persons residing in the rural area of the county. The court stated that
the residents of the county outside the cities “are not a group subject to suspect
classification fcr invidious discrimination under the 14th Amendment.. . .” Cf.
Lockport v. Citizens for Community Action, 430 U.S. 259 (1977) (state might recogn=
distinctive voter interests of urban and rural voters in %fngle shot’ referendum).
You next ask:
5. Because the United States Bureau of the Census has stated
that the population figures for minority groups are “provi-
sional”, pending the outcome of federal court litigation
challenging the validity of these figures, may the Legisla-
ture reapportion into districts on the basis of these figures?
Census figures have been challenged in federal court as representing an
undercount of blacks and hispanics. In Young v. Klutxnick, 497 F. Supp. 1318 (ED.
Mich. 19801, the district court enjoined the Bureau of the Census from certifying
population totals for any states. Justice Stewart. however. staved this order.
Klutxnick v. Young, Docket No. A-533 (Dec. 24, 1980); . see Klut&ick~v~Care& 66 L.
Ed 2d 614, n. at 615 (l980). Thus, the census tottixve been certified to the
President and provided to the states as required by law. 13 U.S.C. .6l4l(b), 141(c).
In the past, courts have acknowledged that not all inhabitants are counted in the
decennial census. Gaffnev v. Cummings, 412 U.S. 735, 745-51 (l973). They are seen,
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Honorable Bob Bullock - Page Four (Mw-350)
nevertheless, as the best available source of population data for rediitricti%z purposes.
Kirkpatrick v. Pr’eiler, 394 U.S. 528 Cl969L
Article m, section 28 Of the Texas Constitution reqUireS the legislature to
redistrict at its first session after the publication Of each ce\sus. e -UT? V.
Legislative Redistricting Board, 471 S.W.2d 570 (Tex. 1971). The legtsiature may
reapportion on the basis of the recent census figures.
Your next question is as follows:
6. Because the guidelines for submitting a reapportionment
plan to the United States Department of Justice under the
Voting Rights Act specify that recent eleCtiOn return data
be included in the submission, may the Legislature
reapportion Senatori& districts without considering this
data?
Recent election return data is among those items generally required to be
submitted in connection with redistricting plans. See 46 Fed. Reg. 875-76 0981) (to be
codified in 28 C.F.R. SS51.25, 51.26). No provision7 the Voting Rights Act, however,
requires that the legislature consider such data. Whether Senate consideration of this
data would enhance its ability to draft a plan acceptable to the Attorney General
beyond the scope of your question and thii opinion.
Your final question is ss follows:
7. At least one Senator has expressed his opinion that the
reapportionment plan has been drafted to intentionally
discriminate against his political interest. May a reappor-
tionment plan adopted by the ,Legislature have either the
purpose and/or effect of diicriminating against any recog-
nizable political interest?
A reapportionment plan may not have the purpose or effect of diluting the voting
strength of linguistic or racial minorities. 42 U.S.C. 1971, 1973-1973dd-5 flST6). No
group, however, has a constitutionally protected right to legislative seats in proportion
to its voting strength White v. Register, 412 U.S. 755, 765-66 Ug73).
A reapportionment plan is not necessarily in violation of the equal protection
clause if it seeks to protect incumbents. White v. Weiser, 412 U.S. 783, 797 fl973).
An fnmmbent, however, has no right to have his district maintained during the
~@Wti~m~t Process. See City 503 F. Supp. 663, 672
(RD. Penn. 1980).
SUMMARY
In Preparing a redistricting plan, the legislature need not
take into account the number of qualified voters in senatorial
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Honorable Bob Bullock - Page Five @w-350)
districts as required by article II$ section 25 of the Texas
Constitution, since that requirement was struck down by a
federal court.
An apportionment plan may split counties into two or
more senatorial districts when an alternative plan could be
drawn maintaining county integrity.
A county need not be given the maximum number of full
senatorial districts which can be contained within it.
An apportionment plan may combine primarily rural
counties with urban areas in a single senatorial district.
The legislature may reapportion on the basis of the
recent census fiies.
No law requires the legislature to consider in drafting its
reapportionment plan the recent election return data required
to be submitted to the Department of Justice under the Voting
Rights Act.
A reapportionment plan need not protect the districts of
incumbents, nor must it guarantee any group legislative seats in
proportion to its voting strength.
g-g
Attorney General of Texas
JOHN W. FAINTER, JR.
First Assistant Attorney General
RICHARD B. GRAY, IIl
Executive Assistant Attorney General
Prepared by Susan L. Garrison
Assistant Attorney General
APPROVEDI
OPINION COMMITTEE
Susan L. Garrison, Chairman
Jon Bible
Rick Gilpin
Jim Moelinger
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