Graves v. Barnes

MEMORANDUM OPINION

PER CURIAM.

Because our selection of the current districting plan¹ for Tarrant County, Texas, in 1976 was guided in no small way by constraints of time and practicability,² we expressly retained jurisdiction to grant further relief if the plan proved inadequate to relieve the constitutional deprivations suffered by the minority communities of Tar-rant County.³ In response to the plaintiffs’ motion, we made good our promise to reconvene and reconsider the propriety of the legislative districting plan adopted for the county, by convening a hearing of two days duration in September of 1977. We are now graced with a less coercive timetable and a somewhat fuller record upon which to consider the current status of the minorities in Tarrant County. Our earlier ruling was admittedly wrought of practicality; we now determine whether it may stand as a matter of principle.

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Two substantive challenges are brought against the current districting plan for Tar-rant County. First, it is claimed that the plan unconstitutionally dilutes the voting strength of the county’s minority community and thereby denies minorities equal access to the electoral process. Over-saturation of minorities in one district, accompanied by a fragmentation and dispersal of the remaining minorities among other districts, allegedly accomplishes this dilution.

On a second, and essentially independent front,⁴ the present plan is claimed to violate the Fourteenth Amendment’s equal protection requirement that legislative districts be “as nearly of equal population as is practicable.” Reynolds v. Sims, 377 U.S. 533, 577, 84 S.Ct. 1362, 1390, 12 L.Ed.2d 506, 536 (1963); Chapman v. Meier, 420 U.S. 1, 95 S.Ct. 751, 42 L.Ed.2d 766 (1975); Conner v. Finch, 431 U.S. 407, 97 S.Ct. 1828, 52 L.Ed.2d 465 (1977). Proof here partakes of a comparison between the plaintiffs’ plan, with an absolute population deviation of less than 2%, and the plan now in effect, with a deviation factor of 7.7%.

Our consideration of these vexed questions is diverted by a preliminary issue regarding the scope of our review. Specifically, we are bound to determine whether the present plan is one deserving of indulgent review, by virtue of its purportedly legislative genesis,⁵ or whether it must be held to those higher standards which pertain to districting plans that are the product of court order.⁶ This, in turn, requires examination of “the thorny questions concerning the extent to which one plan might be deserving of some presumptive preference on the basis of its closer congruence to the legislatively drawn lines of H.B.1097 [citations omitted].” Graves v. Barnes, 408 F.Supp. 1050, 1054 n. 8 (W.D.Tex.1976). Also, because our earlier observation that neither plan enjoys legislative approval may no longer be precisely accurate, we must evaluate such legislative imprimatur as the current plan may carry.

That the provisions of House Bill 1097 are presently ineffective as law is beyond dispute.⁷ Nevertheless, the defendants urge preference to their plan, emphasizing that it retains three districts unchanged from those drawn in House Bill 1097, and makes only minor changes in others.⁸ This once-removed approximation of legislative intent is claimed to cloak the present plan with the mantle of state policy, thereby to lend it a preferred status over the plaintiffs’ proposal.

Although it is an unlikely argument — to proclaim as virtue a kinship with that which was riddled with vice — we of course recognize our duty to respect state apportionment policy. See, e. g., White v. Weiser, 412 U.S. 783, 93 S.Ct. 2348, 37 L.Ed.2d 335 (1973); Whitcomb v. Chavis, 403 U.S. 124, 91 S.Ct. 1858, 29 L.Ed.2d 363 (1971). We perceive the similarity of this matter with the facts of White v. Weiser, supra, and, even as the district court there was required to give deference to state policy appearing in an unconstitutional legislative proposal, we correspondingly stand ready to honor such policy considerations as do not detract from Constitutional requirements. Id., at 795, 93 S.Ct. at 2354-55, 37 L.Ed.2d at 346. We expressly eschew any notion, however, that the present plan deserves that kind of deference that properly attaches to conventional apportionment legislation. The last redistricting proposal which might have laid claim to such preferential treatment was House Bill 1097; along with its rejection by the U. S. Attorney General went any legitimate basis for this court’s relaxed scrutiny of the so-called “state” proposal.⁹ It is, therefore, only to the extent that the present plan demonstrates a legitimate state policy that it enjoys that privileged review which might have been presumptively accorded its predecessor.

Since our adoption of the present plan in 1976, the Texas Legislature has convened and adjourned both a Regular and a Special Session. Although neither session produced any bill relating to legislative reapportionment in Texas,¹⁰ it is suggested by the defendants that a product of the Special Session lends some form of legislative sanction to the present plan. Specifically, it is argued that the passage of two Resolutions, one by the Texas House of Representatives,¹¹ and one by the Texas Senate,¹² demonstrates legislative approval of the current districting scheme. This occurrence, we are told, should weigh in favor of our continuing approval of the present districting plan.

We pretermit an extended discussion of these legislative Resolutions, since their infirmities are obvious. We recognize, of course, that “reapportionment is a complicated process,” and that “[districting has sharp political impact and inevitably political decisions must be made by those charged with the task.” White v. Weiser, supra, 412 U.S. at 795-96, 93 S.Ct. at 2355, 37 L.Ed.2d at 346. It is for that reason, certainly, that “reapportionment is primarily the duty and responsibility of the State through its legislature or other body, rather than of a federal court.” Chapman v. Meier, supra, 420 U.S. at 27, 95 S.Ct. at 766, 42 L.Ed.2d at 785. But to suggest that the mere endorsement of the plan adopted by this court in any way meets the task that properly befalls the legislature is to subvert totally the logic of our traditional deference to legislative effort. That deference contemplates a studied and thoughtful approach to the process of legislative apportionment, whereby the resulting legislation may be presumed to embody the legitimate concerns of the general public. It plainly does not envision such an abnegation of the legislative function as is suggested here; so attenuated a claim to the common will can be accorded only limited solicitude.¹³

Regarding the claim of voting dilution in Tarrant County, our previous comparison of the same two plans that are now before us led us to the following conclusion:

The 1970 census data supplied to the court, as well as the testimony adduced at the recent hearing in this suit, does not demonstrate that either of the two plans is unconstitutional. Both plans provide for a primary district in which minority voters constitute a clear majority. In the Escalante Plan, this district is 49.3% black and 22.2% Mexican American, while the defendants’ primary district is 60.2% black and 3.8% Mexican American. In addition, each plan contains a secondary district with approximately 43% minority population. In the plaintiffs’ plan, this district is 38.9% black and 3.6% Mexican American, while the defendants’ equivalent district is 25.3% black and 18.2% Mexican American. An examination of each plan’s tertiary and quartary minority districts adds little flesh to the bones of the foregoing observations. Each of the proposed plans represents a substantial improvement over the former multimember scheme with its attendant constitutional infirmities.

Graves v. Barnes (Graves III), supra, 408 F.Supp. at 1052-53.

Barring any new evidence on the issue of minority access, we are bound to our holding that the present plan is a constitutional one. Since that earlier writing, however, the 1976 election for members of the Texas House of Representatives was accomplished under the provisions of the present plan. According to plaintiffs, the result of that election provides new evidence of the dilution of minority access to the political process in Tarrant County. Further, the plaintiffs assert the validity of a population survey prepared at their instance and introduced at trial.¹⁴ The survey is claimed to show a changing demographic pattern in the primary minority district (District 32-H), which was created under the present districting scheme. This pattern of change purportedly results in an enhancement of minority population in District 32-H, culminating in an oversaturation there, and a concomitant fragmentation of minority influence in the secondary and tertiary minority districts. In due course, we shall turn to a consideration of the plaintiffs’ new evidence; but our immediate concern is with the legal background against which the plaintiffs’ proof must be viewed.

In order to sustain a claim of denial of minority access to the political process,

[t]he plaintiffs’ burden is to produce evidence to support findings that the political processes leading to nomination and election were not equally open to participation by the group in question — that its members had less opportunity than did other residents in the district to participate in the political processes and to elect legislators of their choice.

White v. Regester, 412 U.S. 755, 765-66, 93 S.Ct. 2332, 2339, 37 L.Ed.2d 314, 324 (1973). The Court of Appeals for the Fifth Circuit has recently emphasized those particular elements which the Supreme Court, in White v. Regester, had identified as probative of denial of access to the political process.

Among these are: a history of official racial discrimination which touches the right of the minority to register and vote and to participate in the democratic process, 412 U.S. at 766, 93 S.Ct. 2332, 37 L.Ed.2d at 325; a historical pattern of a disproportionately low number of minority group members being elected to the legislative body, id.; a lack of responsiveness on the part oí elected officials to the needs of the minority community, 412 U.S. at 769, 93 S.Ct. 2332, 37 L.Ed.2d at 325-26; a depressed socioeconomic status which makes participation in community processes difficult, 412 U.S. at 768, 93 S.Ct. 2332, 37 L.Ed.2d at 325-26; and rules requiring a majority vote as a prerequisite to nomination, 412 U.S. at 766, 93 S.Ct. 2332, 37 L.Ed.2d at 324. While these standards were developed for use in situations involving multimember districts, they have equal application to redistricting schemes making use of single-member districts, such as the plan presently before this court. Robinson v. Commissioners Court, 505 F.2d 674, at 678 (CA5, 1976);

Kirksey v. Board of Supervisors of Hinds County, Mississippi, supra, 554 F.2d 139, 143 (5th Cir. 1977) (en banc).

The Kirksey court also acknowledged the Supreme Court’s new emphasis upon “the interplay, in equal protection cases, between racially discriminatory intent and racially differential impact as criteria for violation of the equal protection clause.” Id. at 147. Citing Washington v. Davis, 426 U.S. 229, 96 S.Ct. 2040, 48 L.Ed.2d 597 (1976) and Village of Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 97 S.Ct. 555, 50 L.Ed.2d 450 (1977) , and assuming their applicability to racial minorities’ claims of exclusion from the democratic process, Kirksey, supra, at 147, the en banc panel nevertheless observed that “nothing in these cases suggests that, where purposeful and intentional discrimination already exists, it can be constitutionally perpetuated into the future by neutral official action.” Id., at 148. Accordingly, the Kirksey court concluded that “[w]here a [districting] plan, though itself racially neutral, carries forward intentional and purposeful discriminatory denial of access that is already in effect, it is not constitutional.” Id., at 146.

It is proposed by no one that we re-open our inquiry regarding the political and racial history of Tarrant County under its previous multi-member plan. We therefore adhere to our earlier finding that that plan worked “unconstitutionally to ‘cancel and minimize’ minority voting strength according to the standards in White v. Regester, supra, Zimmer v. McKeithen, supra, [485 F.2d 1297 (5th Cir.)] and Turner v. McKeithen, supra [490 F.2d 191 (5th Cir.)].” Graves v. Barnes (Graves II) 378 F.Supp. 640, 648. Our present inquiry is whether the current plan, effectuated in 1976, perpetuated an existent denial of access by the racial minority to the political process. Kirksey, supra, 554 F.2d at 143. It is in this limited context, and in the light of the Kirksey decision, that we consider plaintiffs’ claimed new evidence of dilution.

As already mentioned, the Primary and General Elections of 1976 were carried out under the plan now in effect for Tarrant County. Five persons, all black, filed for the Democratic nomination for State Representative in the primary minority district, 32-H. No filing was made for the Republican nomination. Candidates Leonard Briscoe and Bobby Webber obtained run-off positions against the three other blacks. Briscoe was subsequently certified as the Democratic nominee, and was later elected as the State Representative of District 32-H.¹⁵

In District 32-F, the secondary minority district, the incumbent Anglo, Doyle Willis, was the only person to file for the Democratic nomination. There was no filing for the Republican nomination, and Willis was duly elected State Representative from District 32-H.¹⁶ The tertiary minority district, 32-1, elected as its Representative an Anglo, Ms. Chris Miller. These election results, and in particular their perceived meaning by the minority community, bear close scrutiny.

The election of a black representative from District 32-H, with a minority population of sixty-five percent, was a predictable result of the present districting scheme. No longer can it be said, as was true in 1974, that few blacks had ever sought, and none had ever won, a legislative seat from Tarrant County District 32. Graves v. Barnes (Graves II), supra, 378 F.Supp. at 645. Nor could it today be said — if numerical proportionality were our sole concern— that minority access in Tarrant County is still at its arithmetical nadir. But we cannot be satisfied with this measure alone.

Were we to hold that a minority candidate’s success at the polls is conclusive proof of a minority group’s access to the political process, we would merely be inviting attempts to circumvent the Constitution. This we choose not to do. Instead, we shall continue to require an independent consideration of the record.

Kirksey v. Board of Supervisors of Hinds County, Mississippi, supra, 554 F.2d at 149 n.21.

So far as the record before us pertains to the totality of representation accorded the minority community, and to the extent that the perceived responsiveness of elected representatives may offer some index of minority access to the decision-making process, see, e. g., Zimmer v. McKeithen, supra, 485 F.2d at 1305, we can only conclude that the minority interests of Tarrant County today enjoy an equal opportunity “to participate in the political processes and to elect legislators of their choice.” White v. Regester, supra, 412 U.S. at 766, 93 S.Ct. at 2339, 37 L.Ed.2d at 324. Just as we do not overestimate, the significance of the election of a black representative, we also appreciate the possibility that minority interests may be fostered by representatives who are of non-minority status. Indeed, the record before us demonstrates that effective representation is not a function of ethnicity alone.

In District 32-F, with a minority population of approximately forty-four percent, Representative Willis ran unopposed in both the Democratic primary and the 1976 general election. In three prior elections, when he was twice opposed by black Republican candidates, and once by a black Democratic candidate, Representative Willis carried the black precinct of Tarrant County by considerable majorities.¹⁷ These results evidence Representative Willis’ continuing support in the minority community. Even more probative, we believe, is the generally favorable review of Representative Willis’ performance by the plaintiffs’ own witnesses.¹⁸

No less enthusiastic was the testimony in support of Representative Miller, whose District 32-1 embraces a 15.32% minority population.¹⁹ It was Miller who, in 1975, introduced the plaintiffs’ plan as a redistricting measure in the Texas Legislature.²⁰ We further note that Miller’s election in 1976 was in part attributable to the strong support of the minority precincts in District 32-I.²¹ Upon these facts, we can only conclude that the present plan operates effectively to remedy the pre-existent denial of access by the racial minority to the political process in Tarrant County. We perceive no basis in the results of the 1976 election to question our earlier finding that the current districting plan is not constitutionally infirm.

Our belief that the plan is not racially discriminatory survives also the report prepared by Dr. Tom Marshall and tendered in evidence by the plaintiffs. The effect of Dr. Marshall's report, if accurate, is to show that, since 1970, a movement of black population into previously all-white areas of southeastern Fort Worth has occurred, with the result that the minority population of District 32-H has climbed far above the sixty-five percent figure shown by the 1970 census.²² This claimed oversaturation of minorities in District 32-H provides, of course, the basis for the plaintiffs’ claim of fragmentation and voting dilution in the remaining minority districts, 32-F and 32-1.

Were we to accept as accurate the proposed revision of population figures for District 32-H, we might still be hard put to conclude that the existing plan accounts for a denial of minority access. “[C]learly it is not enough to prove mere disparity between the number of minority residents and the number of minority representatives.” Kirksey, supra, at 143, citing Zimmer v. McKeithen, 485 F.2d 1297 at 1305 (5th Cir. 1973) (en banc), aff’d on other grounds sub nom. East Carroll Parish School Board v. Marshall, 424 U.S. 636, 96 S.Ct. 1083, 47 L.Ed.2d 296 (1976). Nor have we yet reached the position where minority votes may be said to be diluted merely because their effect is not maximized. See City of Richmond v. United States, 422 U.S. 358, 95 S.Ct. 2296, 45 L.Ed.2d 245 (1975).

But it is for a different, and more fundamental reason that we are unable to accord significance to this element of the plaintiffs’ new proof. Our examination of the Marshall study persuades us that its projections simply do not offer that “high degree of accuracy” required to supplant the population figures of the prior decennial census. Kirkpatrick v. Preisler, 394 U.S. 526, 535, 89 S.Ct. 1225, 1231, 22 L.Ed.2d 519, 527 (1969); see also, Dixon v. Hassler, 412 F.Supp. 1036 (W.D.Tenn.1976), aff’d sub nom. Republican Party of Sheldon County, Tennessee v. Dixon, 429 U.S. 934, 97 S.Ct. 346, 50 L.Ed.2d 303 (1974). Among the several scientific defects from which the report is said to suffer,²³ we note in particular the incongruity of combining 1970 total population figures with 1977 data on ethnic composition. In our view, the resulting calculation of ethnic ratio changes is necessarily skewed; certainly the product is not the “careful and substantial demographic analysis” upon which we might question the current legitimacy of the 1970 census figures. Graves v. Barnes (Graves III), supra, 408 F.Supp. at 1053. We are therefore constrained to find that the present plan is a constitutional one, in the sense that it does not perpetuate a pre-existent denial of minority access to the political process. Kirksey, supra.

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When the present plan was implemented, in 1976, we reserved the question “[wjhether the 7.7% deviation in the defendant’s plan is objectional [sic] under the Chapman standard . . . ” Graves v. Barnes (Graves III), supra, 408 F.Supp. at 1053. In Chapman v. Meier, 420 U.S. 1, 95 S.Ct. 751, 42 L.Ed.2d 766 (1975), to which we referred, the following language appears:

We hold today that unless there are persuasive justifications, a court-ordered reapportionment plan of a state legislature must avoid use of multimember districts, and, as well, must ordinarily achieve the goal of population equality with little more than de minimis variation. Where important and significant state considerations rationally mandate departure from these standards, it is the reapportioning court’s responsibility to articulate precisely why a plan of single member districts with minimal population variance cannot be adopted.

Id., 420 U.S. at 26, 95 S.Ct. at 766, 42 L.Ed.2d at 784.

We found in the exigencies of time sufficient justification for the higher deviation in the state’s plan, Graves v. Barnes (Graves III), supra, 408 F.Supp. at 1053, and we therefore postponed to another day “[t]he troublesome question whether Chapman significantly modifies the Mahan [v. Howell, 410 U.S. 315, 93 S.Ct. 979, 35 L.Ed.2d 320] standard [for legislatively-crafted plans] in relation to court-ordered plans.” Id., n.7. The day of reckoning having arrived, we now contemplate the issue of population deviation.

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. Reynolds v. Sims, supra. Minor deviations from mathematical equality among state legislative districts are insufficient to make out a prima facie case of invidious discrimination so as to require justification. Gaffney v. Cummings, 412 U.S. 735, 93 S.Ct. 2321, 37 L.Ed.2d 298 (1973). In the case of legislatively enacted plans, that rule accounts for a threshold of approximately ten percent, below which maximum population deviations are deemed to be of prima facie constitutional validity. Id.; White v. Regester, supra. The precise de minimis threshold for court-ordered plans is less certain, but is plainly lower than that afforded legislative apportionments. Chapman v. Meier, supra. In the process of giving strict scrutiny to a court-ordered plan, the Supreme Court has refused to assume the validity of even a 5.9% deviation. Id.; accord, Conner v. Finch, supra, 431 U.S. at 418, n.17, 97 S.Ct. at 1835, 52 L.Ed.2d at 476.

In its most recent writing on the topic of legislative apportionment, Conner v. Finch, supra, the Supreme Court held that a Mississippi District Court abused its equitable discretion in fashioning a reapportionment plan which resulted in absolute population deviations of 16.5% in Senate districts and 19.3% in House districts. To be sure, these aggravated population disparities would have offended even the guidelines for legislatively-crafted apportionments, and therefore tell us little about the current status of the de minimis rule as a purely mathematical proposition. But the new guidance we gain from Conner is that considerations of state policy that result in a statistically offensive plan “cannot be viewed as controlling and persuasive when other, less statistically offensive, plans already devised are feasible [citations omitted].” Conner, supra, 431 U.S. at 420, 97' S.Ct. at 1836, 52 L.Ed.2d at 477. Confronted, as we are, with two proposals of measurably different deviation, we proceed under the Court’s new relativist approach, and compare the efficacy of each in accomplishing legitimate state policy. Even assuming that the population deviation here approaches, if it does not occupy, the borderline of judicially proscribed deviations, we are propelled onto the road of equitable discretion.

One of the state policies purportedly served by the configuration of the districts in the present plan is the maintenance of the integrity of political subdivision lines. That the preservation of such boundaries is a legitimate state goal we readily acknowledge. Mahan v. Howell, 410 U.S. 315, 329, 93 S.Ct. 979, 987, 35 L.Ed.2d 320, 333 (1973); Swann v. Adams, 385 U.S. 440, 87 S.Ct. 569, 17 L.Ed.2d 501 (1967). We are, however, considerably less certain that this policy is better accomplished in the present than the proposed plan. The record indicates that the present plan transcends city boundaries no less than thirty-four times, carving Hal-tom City into three districts, and Arlington into four. The plaintiffs’ plan interrupts city boundaries slightly fewer times.²⁴ If there exists a state policy of respecting political boundaries, it is certainly no better served by the present plan than by that which is proposed in its stead.

A second policy said to be served under the present plan is maintaining identifiable communities of interest. This, too, we believe to be a legitimate state goal, see, e. g., Chapman v. Meier, supra, although, in the instant case, it is far from apparent that the alleged communities of interest account for the higher absolute deviation inherent in the- state’s plan. So far as the record offers any guidance here — and it does not offer much — we observe no basis for concluding that the present plan is superior to the proposed one. Instead, we find utterly conflicting evidence regarding even those interests which may be said to be communal. For example, a resolution passed by the City Council of Arlington entreats this court to approve the present plan for its recognition of the common interest of the City of Arlington and contiguous cities. This, in the face of a districting scheme that parcels the City of Arlington into four separate districts. If there is policy at work here, we fail to perceive it.

We are troubled, too, by the rather loose and ill-defined characterization of community interest that supposedly underlay House Bill 1097, and, by reference, the current plan. The footnoted colloquy between plaintiffs’ counsel and Representative Tom Schieffer, author of the current plan, is illustrative.²⁵

We do not find in the record the slightest suggestion of those interests, other than geography, which might join these “communities”. Indeed, we might as readily observe that the commonality of interest among these regions goes no further than their placement within the same legislative district. Without more than this conclusory claim to legislative intent, we are not persuaded that this element of state policy in any way palliates a population variance of 7.7%.

The creation of compact representative districts constitutes a legitimate state objective. That the present plan more closely approximates this goal is evident.²⁶ But it is equally apparent that the record contains no evidence that the plan’s higher deviation factor is the result of an effort at compaction. We understand the law of reapportionment to permit a trade-off between the competing aims of state policy and population equality. Where legitimate state policy can be accomplished only at the expense of population equality, then an otherwise intolerable degree of deviation may become acceptable. But it is not enough to demonstrate merely that a plan of higher deviation may happen to accomplish certain policy goals; rather, the burden upon the proponent of such a plan is “to articulate clearly the relationship between the variance and the state policy furthered.” Chapman, supra, 420 U.S. at 24, 95 S.Ct. at 764, 42 L.Ed.2d at 783.²⁷

It is this fundamental failure of proof, under both Chapman and Conner, which vitiates the defendants’ other state policy claims as well. We accept the proposition that the maintenance of existing member-constituent relationships is a justifiable state policy, see White v. Weiser, supra, 412 U.S. at 791, 93 S.Ct. at 2352-2353, 37 L.Ed.2d at 343-344, and that it is well-served under the present plan. But we do not understand that this goal can be accomplished only at the expense of so high a deviation from the population norm. This element of state policy has not been, under Chapman, “explicitly shown to necessitate the substantial deviation embraced by the plan.” Chapman v. Meier, supra, 420 U.S. at 24, 95 S.Ct. at 765, 42 L.Ed.2d at 783. We therefore cannot endorse a plan that accomplishes, however fully, this limited objective. See Robinson v. Commissioners Court, Anderson County, 505 F.2d 674, 680 (5th Cir. 1974).²⁸

Finally, we are urged, both as a matter of policy and equity, to consider that continued adherence to the present plan will have the effect of avoiding voter confusion and encouraging voter participation. Another change in the districting of Tar-rant County, it is claimed, will work a disruption upon the election process, and will operate to the substantial inconvenience of those county officials responsible for implementing any electoral changes. With all of these assertions we cannot disagree. But we do not conclude that these arguments demonstrate the merits of one proposal over the other; they suggest, instead, the same pragmatic rationale for decision that permitted only provisional relief once before.

■ It will ultimately serve no one for us to ignore constitutional norms in the name of convenience and administrative inertia. “[A] District Court should not, in the name of state policy, refrain from providing remedies fully adequate to redress constitutional violations which have been adjudicated and must be rectified.” White v. Weiser, supra, 412 U.S. at 797, 93 S.Ct. at 2355, 37 L.Ed.2d at 347. Our conclusion today is that the present scheme of districting in Tarrant County produces greater population disparities than necessary to effectuate any coherent and legitimate state policy. We accordingly adopt that plan which is, if at all, only marginally less effective in implementing identifiable state interests, and which comes significantly closer to achieving the goal of equal apportionment. This result we believe to be obligatory, both as a matter of constitutional principle, and as the product of the exercise of our equitable discretion.' We therefore find that the plaintiffs’ proposed plan for legislative redistricting in Tarrant County District 32 should be put into effect.

It will be so ORDERED.

JOHN H. WOOD, Jr., District Judge, dissents.

APPENDIX

RESOLUTION

WHEREAS, The 64th Legislature, in Chapter 727, Acts of the 64th Legislature, 1975, established single-member legislative districts for District 32 in Tarrant County; and

WHEREAS, On February 19, 1976, the United States District Court for the Western District of Texas entered an order reapportioning those single-member legislative districts in Tarrant County encompassed by Districts 32A through 321 of Chapter 727, Acts of the 64th Legislature, 1975; and

WHEREAS, That order has been in effect since the date of issuance and the 1976 elections were conducted in accordance with that plan, in which elections one Black and one Republican were elected to represent two of those districts; and

WHEREAS, The election of these representatives indicates that the plan embodied in that order is effective to broaden participation in the political processes; and

WHEREAS, The districts drawn in that order conform with the legislative intent of ensuring the representation of minorities, including the Mexican-American population of Tarrant County, which is separate and diverse from other ethnic minority populations in Tarrant County; and

WHEREAS, The districts drawn in that order are effective to protect the integrity of the various political subdivisions in Tar-rant County, including the city of Fort Worth and the surrounding cities, towns, and villages; and

WHEREAS, The districts drawn in that order closely parallel the districts drawn by the legislature in Chapter 727, Acts of the 64th Legislature, 1975; and

WHEREAS, Changes in the boundary lines of the districts drawn in that order would hinder enforcement of the election laws of the State of Texas by those charged with enforcement; now, therefore, be it

RESOLVED, by the House of Representatives of the State of Texas, That the house hereby approve of the legislative districts drawn in the court order of February 19, 1976, and encourage the United States District Court for the Western District of Texas to make that existing order, which establishes the following districts, final:

32A. That part of Tarrant County included in census tracts 130,131, 134.01,134.-02, 135.01, 135.02, 136.02, 137, 217.02, and 218, that part of census tract 65.05 East of the Handley-Ederville Road, and that part of census tract 136.01 included in census enumeration district 129 South of State Highway 121 and census block groups 3, 4, and 5;

32B. That part of Tarrant County included in census tracts 115.01, 115.02, 217.-01, 219, 220, 221, 222, 223, 224, 225, 226, 227, 228, and 229;

32C. That part of Tarrant County included in census tracts 42.02, 54.01, 54.02, 55.01, 55.02, 55.03, 55.04, 56, 57.01, 57.02, 58, 59, 60.01, 60.02,111.01, and 111.02, that part of census tract 47 South of Gambrell Street, that part of census tract 109 South of U.S. Highway 377 and South of Old Benbrook Road, and that part of census tract 110.02 North of Sycamore School Road;

32D. That part of Tarrant County included in census tracts 22, 23.01, 23.02, 24.-01, 24.02, 25, 26, 27, 51, 52, 53,106.01,106.02, 107.01, and 107.02 and that part of census tract 109 North of U.S. Highway 377 and North of Old Benbrook Road;

32E. That part of Tarrant County included in census tracts 5.01, 6, 50.03, 66, 67, 101,102,104.01,104.02,105,132.01,138,139, 140.01, 140.02, and that part of census tract 136.01 included in census enumeration districts 9A, 9B, 9C, 12, 14, 39, and 39B and that part of census enumeration district 129 North of State Highway 121, and that part of census tract 141 included in census enumeration district 47;

32F. That part of Tarrant County included in census tracts 1.01, 1.02, 2.01, 2.02, 3, 4, 8, 9, 10, 11, 12.02, 16, 17, 18, 32, 33, 34, 49, 50.01, 50.02, and that part of census tract 103 West of Haltom Road;

32G. That part of Tarrant County included in census tracts 12.01, 14.01, 14.02, 14.03, 15, 35, 65.01, 65.02, 65.03, 65.04, 132.-02, 133.01, 133.02, 216.01, 216.02, 216.03, and that part of census tract 13 North of the Texas and Pacific Railway and that part of census tract 65.05 West of Handley-Ederville Road and that part of census tract 103 East of Haltom Road;

32H. That part of Tarrant County included in census tracts 36.01, 36.02, 37.01, 37.02, 38, 39, 45.01, 46.01, 46.02, 46.03, 46.04, 46.05, 61.01, 61.02, 62, 63, 64, and that part of census tract 13 South of the Texas and Pacific Railway and that part of census tract 45.02 East of Bryan Street; and

321. That part of Tarrant County included in census tracts 5.02, 7,19, 20, 21, 28, 29, 30, 31, 40, 41, 42.01, 43, 44, 45.03, 48.01, 48.02, and that part of census tract 45.02 West of Bryan Street and that part of census tract 47 North of Gambrell Street.

1 . See Graves v. Barnes (Graves III), 408 F.Supp. 1050 (W.D.Tex.1976) (3-judge court). Reference to this earlier opinion will reflect, in pertinent part, the history of this protracted litigation. See also, Graves v. Barnes (Graves I), 343 F.Supp. 704 (W.D.Tex.1972); Graves v. Barnes (Graves II), 378 F.Supp. 640 (W.D.Tex. 1973).

2 . Graves v. Barnes (Graves III), supra n. 1, 408 F.Supp. at 1054.

3 . Those findings regarding the existence and extent of racial discrimination and dilution of minority access to the political process appear in (Graves II), supra n. 1, 378 F.Supp. at 644-48.

4 . Our courts have acknowledged the occasional incompatibility of the two types of claims pursued here. Thus, it is said that “. . . redistricting done to comply with one-man, one-vote requirements may impinge upon the right of members of minorities to legal access to the processes of democracy.” Kirksey v. Board of Supervisors of Hinds County, Mississippi, 554 F.2d 139 (5th Cir. 1977) (en banc).

5 . Regarding the short and unhappy life of the Texas Legislature’s last redistricting effort, as embodied in House Bill 1097, see (Graves III), supra n. 1, 408 F.Supp. at 1051-52.

6 . See generally Chapman v. Meier, 420 U.S. 1, 95 S.Ct. 751, 42 L.Ed.2d 766 (1975).

7 . See note 5, supra.

8 . Pre-trial Order Stipulation No. 20.

9 . That we do not here confront a true legislative plan was admitted by counsel for the State of Texas in our previous hearing:

Ms. Levatino: It is the State’s opinion, as the Judges have pointed out here, that surely [the proposed plan] is not a legislative plan. It is a plan proposed by the State which we believe we have a duty to do.

Transcript of 1976 hearing at 163.

10 . Pre-trial Order, Stipulations Nos. 5 and 6.

11 . House Simple Resolution, First Called Session, 65th Legislature. The full text of this resolution appears in our Appendix.

12 . Senate Resolution No. 2, First Called Session, 65th Legislature. The text of this resolution is identical to that adopted by the House of Representatives.

13 . Certainly we are not much comforted by the extent of deliberation which appears to have accompanied these measures. The record suggests, for example, that the attention given House Simple Resolution No. 2 consumed no more than one or two hours.

14 . Plaintiffs’ Exhibit No. 2-77.

15 . Pre-trial Order, Stipulation Nos. 8, 10, and 19.

16 . Pre-trial Order, Stipulation No. 9.

17 . Transcript of 1977 hearing at 371. These results are said to be explained, in part, by the black voters’ disaffection from the Republican Party, and by the general perception that Willis’ Democratic opponent was of unstable mental capacity. Id

18 . Transcript of 1977 hearing at 355, 485.

19 . Transcript of 1977 hearing at 485, 533.

20 . Transcript of 1977. hearing at 687.

21 . Transcript of 1977 hearing at 657.

22 . Transcript of 1977 hearing at 430. According to the Marshall Report, the present minority population figure is in the area of 82%.

23 . See, generally, Transcript of 1977 hearing at 586-92, testimony of Dr. Del Taeble; see also Transcript of 1977 hearing at 1204, deposition of Dr. Dudley L. Poston, Jr.

24 . Transcript of 1977 hearing at 464-65.

25 . Q. Now, then, communities of interest, would you tell the Court what communities of interest were preserved under your plan that existed in 1097?

A. Well, I think in — obviously, in Districts A, E, C and D the communities of interest were preserved in toto.

Q. Can you tell me what they are?

A. Well, in A it was to provide a district, growth district in Hurst, Euless, Bedford and around in there.

B was to give the City of Arlington a representative.

C was to give a district to the south side, lower south side.

D was to give the west side of Fort Worth a representative.

In District E, what is District E, that had been primarily a rural suburban district made up of small communities, and I think that that was the primary consideration in drawing it, and in the revised plan it was made even more so because I think only one tract of the City of Fort Worth exists in E.

In E, F [sic], H and I, the core districts, I think under the compromise were — were made in almost all the City of Fort Worth representing the inner city.

In G, that’s the east side of Fort Worth and the west side of Arlington. I think — I can’t remember whether it was Richland Hills or North Richland Hills, that area above Fort Worth.

Transcript of 1977 hearing, at 836-37.

26 . Defendants’ Exhibit Y.

27 . It is on this element of proof that the existence of a less statistically offensive plan is so probative. Plainly, the existence of an alternative plan that is as efficacious in state policy terms, and less offensive in terms of deviation, destroys any claim that the furtherance of state policy necessitates the higher deviation.

28 . We do not ignore the defendants’ suggestion that, by virtue of a single shift in census tracts, the population variance might be reduced to 5.8%. Transcript of 1977 Hearing at 671; Defendants’ Exhibit 77-X. We simply believe the higher deviation figure to be without sufficient policy justification. Indeed, the fact that the defendant’s proposed variance can be so easily reduced only confirms the absence of any rational connection between the dictates of state policy and the configurations of the present plan.