Untitled Texas Attorney General Opinion ( 1972 )

TXXE ATTORNEY GENERAL
OF TEXAS
Hon. Ned Granger Opinion No. M- 1182
County Attorney
Travis County Courthouse Re: Whether the boundaries of
P. 0. Box 1748 county commissioners precincts
Austin, Te xas 78767 should be determined by the
number of registered voters
or by the total population
in order to comply with the
“one man, one vote” rule
Dear Mr. Granger: the U.S. Supreme Court.
Your recent letter requesting the opinion of this office
concerning the referenced matter states, in part, as follows:
“Travis County Commissioners precinct bound-
aries are currently determined in accordance with
the total number of persons registered to vote in
Travis County. The recent changes in election laws
which now permit persons of age eighteen to vote
have altered the previous ratio of registered
voters to total population in some areas due, in
part, to the concentration of students in some
parts of Travis County.
“The Travis County Commissioners are now
confronted with the following question:
“Should the forthcoming redefining of County
Commissioners precinct boundaries be done in
accordance with total numbers of persons registered
to vote in Travis County, or does the U.S. Supreme
Court’s requirement of ‘one man, one vote’ require
that precinct boundaries be established on the
basis of total population within Travis County?”
In Reynolds v. Sims, 377 U.S. 533 (1964), the United States
Supreme Court held that the Equal Protection Clause of the Fourteenth
Amendment applied to the apportionment of state legislatures, that
every qualified resident had the right to a ballot for election of
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Hon. Ned Granger, page 2 (M-1182)
state legislators that was of equal weight to the vote of every
other resident, and that such right was infringed when legislator
were elected from districts of substantially unequal population.
However, the Court also said in Reynolds v. Sims, supra, that:
“We do not here consider the difficult
question of the proper remedial devices which
federal courts should utilize in State legis-
lative apportionment cases. Remedial techniques
in this new and developing area of the law will
probably often differ with the circumstances of
the challenged apportionment and a variety of
local conditions. . . .I’ 377 U.S. at 585.
In Avery v. Midland County, 390 U.S. 474 (1968), the
Supreme Court applied the Reynolds rule to Texas county commissio,
precincts, and held that local units with general governmental
powers over an entire geographic area may not, consistently with
the Equal Protection Clause, be apportioned among single-member
districts of substantially unequal population.
The Court’s decision in Aver consistently spoke in ten
of districts of equal population, -8
rat er than districts having an
equal number of registered voters. The Court said
II. . . We hold today only that the Constitu-
tion permits no substantial variation from e ual
population in drawing districts for units o &al
government having general governmental powers over
the entire geographic area served by the body.”
(Emphasis added.) 390 U.S. at 484-85.
Further, in the course of the Avery decision, the Court stated th:
11 Our decision today is only that the
Consti;u;i&r imposes one ground rule for the
development of arrangements of local government:
a requirement that units with general govern-
mental powers over an entire geographic area
not be apportioned among single-member districts
of substantially unequal population.” (Emphasis
added. ) -Id. at 435-86.
In Hadley v. Junior College Dist. of Metro. Kansas City~
MO., 397 U.S. 50 (1970), the Supreme Court applied the Reynolds-
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Hon. Ned Granger, page 3 (M-l 182)
Aver rationale to the election of trustees of a junior college
a+.
istrict. The Court’s language in Hadley.spoke as follows:
I, . . . We therefore hold today that as a
general rule . . . the Equals Protection Clause
of the Fourteenth Amendment requires that each
qualified voter must be given an equal oppor-
tunity to participate in (elections) . .
and when members of an elected body are cho;en
from separate districts, each district must be
established on a basis that will insure, as far
as is practicable, that equal numbers of voters
can- vote for proportionally equal numbersof
officials.” (Emphasis added.) 397 U.S. at 56.
The foregoing language of the Supreme Court would seem to
indicate that districts composed of an equal number of registered
voters, as opposed to persons, would be constitutionally sanctioned.
In Pate v. El~Paso County, Texas, 324 F. Supp. 935 (W.D.
Tex.) (3-judge court) aff’d 400 U.S. 806 (1970), the court had
occasion to pass upon’thenstitutionality of an El Paso County
redistricting action in which the four county commissioners’ pre-
cincts had been redrawn. In that case, the county commissioners
had redrawn the precinct lines on the basis of registered voters
in the district, rather than on a population basis. The federal
district court concluded as follows:
I, (T)he Court having determined that
because of’the large military personnel in El
Paso County who maintain voting residence in
other places a division by registered voters
would more fairly comply with the one man,
one vote rule than by population, and the
Commissionersounty having
submitted to the Court a map dividing the -
county into four Commissioners precincts with
voter registration as follows:
“Commissioners Precinct l---23,674
“Commissioners Precinct Z---23,721
“Commissioners Precinct 3---23,923
“Commissioners Precinct 4---23,971
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Hon. Ned Granger, page 4 (M-1182)
“In accordance with the registered voters
list of January 31, 1970, the Court finds that
said division as appears on said map . . . is
reasonable and proper. ” 324 F. Supp. at 940.
Thus, the Pate decision explicitly sanctioned the use of districts
based on theumber of registered voters resident therein as being
constitutional in light of Reynolds, Aver and Hadle
decision was affirmed, -without opinion,+’ y the Unite +&a% sern,
Court.
In view of the foregoing, we are of the opinion that the
Travis County Commissioners Court may adopt the redistricting plan
which most fairly complies with the one man, one vote rule for its
four commissioners’ precincts; that is, based upon that criterion,
to .ado.pt one based on either registered voters or total population
of the new districts, and that either of such methods of redistrict-
ing so adopted would be constitutional in light of the Supreme Court
“one man, one vote” rule, provided the numbers in each district, of
either registered voters or total population, was substantially equa
to that of the other districts.
In so holding, we would point out that once a commissioner
court decides on which of .the two formulas to use as a basis for re-
districting (i.e., either registered voters or total population), it
must apply the formula to each of its four commissioners’ precincts.
SUMMARY
To comply with the U.S. Supreme Court re-
quirement of “one man, one vote”, a commissioners
court may, in its judgment, depending upon which
most fairly complies with the one man, one vote
rule redistrict its- four precincts on the basis
of either total registered voters or total
population, resident in each precinct, provided
that, as redistricted, the number of registered
voters, or total population, in each precinct is
substantially similar to the others. Once the
registered voter or total population formula is
adopted? it must be applied to each of the four
commissioners’ precincts.
ey General of Texas
Hon. Ned Granger, page 5 (M-1182)
Prepared by Austin C. Bray, Jr.
Assistant Attorney General
APPROVED:
OPINION COMMITTEE
Kerns Taylor, Chairman
W. E. Allen, Co-Chairman
Gerald Ivey
Bob Lemens
Linward Shivers
Harriet Burke
SAMUELD. MCDANIEL
Staff Legal Assistant
ALFRED WALKER
Executive Assistant
NOLA WHITE
First Assistant
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