Kilgarlin v. Hill, 386 U.S. 120 (1967). · Go Syfert
Search
Kilgarlin v. Hill, 386 U.S. 120 (1967). Cases Citing This Book View Copy Cite
Quick Summary

Significant population variances in an apportionment plan are sufficient to invalidate the plan unless they are satisfactorily justified by the court or the evidence of record.

After the Texas Legislature reapportioned its House and Senate, appellants challenged the constitutionality of the new plan, alleging significant population deviations between districts violated the Fourteenth Amendment. The District Court upheld the plan, finding the population variances were justified by the state's policy of respecting county boundaries. The Supreme Court holds that unless satisfactorily justified by the court or the evidence of record, population variances of this size and significance are sufficient to invalidate an apportionment plan. Because the state's policy did not necessitate the specific deviations present and the District Court failed to demonstrate how respecting county lines required such variances, the plan is unconstitutional.

G Cite
cited 4× by 2 distinct cases, 2002–2013 · 2 courts · …it is quite clear that unless satisfactorily justified by the court or by the evidence of record, population variances of the size and significance evident here 26.48 are sufficient to invalidate an apportionment plan. ✓
cited 3× by 1 distinct case, last quoted 2002 · …it is quite' clear that unless satisfactorily justified by the court or by the evidence of record, population variances of the size and significance evident here 26.48 are sufficient to invalidate an apportionment plan. ✓
575 citation events (55 in the last 25 years) across 67 distinct courts.
Strongest positive: Joseph J. Regensburger Jeremy Neff v. City of Bowling Green, Ohio (ca6, 2002-01-24)
Treatment trajectory · 1967 → 2026 · click a year to view as-of
1967 1996 2026
Top citers, strongest first. 35 distinct citers. How cited ↗
examined Cited as authority (quoted) Joseph J. Regensburger Jeremy Neff v. City of Bowling Green, Ohio (6×)
6th Cir. · 2002 · quote attribution · 6 verbatim quotes · confidence low
it is quite' clear that unless satisfactorily justified by the court or by the evidence of record, population variances of the size and significance evident here 26.48 are sufficient to invalidate an apportionment plan.
cited Cited as authority (rule) In re: River Valley S.D. ~ Appeal of: B. Caranese
Pa. Commw. Ct. · 2024 · confidence medium
Kilgarlin v. Hill, 386 U.S. 120, 123 (1967) (per curiam).
discussed Cited as authority (rule) Liddy v. Lamone
Md. · 2007 · confidence medium
See also Reynolds, supra, 377 U.S. at 585 , 84 S.Ct. at 1394 , 12 L.Ed.2d at 541 (stating that “a court is entitled to and should consider the proximity of a forthcoming election and the mechanics and complexities of state election laws, and should act and rely upon general equitable principles”); Wells v. Rockefeller, 394 U.S. 542, 547 , 89 S.Ct. 1234, 1237 , 22 L.Ed.2d 535, 539-40 (1969) (finding no error when court allowed an election that was only three months away to proceed “despite its constitutional infirmities”); Kilgarlin v. Hill, 386 U.S. 120, 121 , 87 S.Ct. 820, 821 , 17 L.…
discussed Cited as authority (rule) Quilter v. Voinovich
N.D. Ohio · 1994 · confidence medium
See Reynolds, 377 U.S. at 549, 84 S.Ct. at 1375 (500 + % deviation) (approximate calculation from figures given); Board of Estimate of City of New York v. Morris, 489 U.S. 688, 701-02 , 109 S.Ct. 1433, 1442 , 103 L.Ed.2d 717 (1989) (78% deviation) (city districts); Kilgarlin, 386 U.S. at 122 , 87 S.Ct. at 821 (26.48% deviation) (dicta); Swann, 385 U.S. at 442-43 , 87 S.Ct. at 571 (25.65% deviation); Chapman, 420 U.S. at 22 , 95 S.Ct. at 763 (20.14% deviation) (court-ordered plan); Connor, 431 U.S. 407 at 416-17 , 97 S.Ct. 1828 at 1835 , 52 L.Ed.2d 465 (19.3% house and 16.5% senate deviations).
examined Cited as authority (rule) Kenai Peninsula Borough v. State (4×)
Alaska · 1987 · signal: cf. · confidence medium
Cf. Kilgarlin v. Hill, 386 U.S. 120, 123, 124 , 87 S.Ct. 820, 822, 823 , 17 L.Ed.2d 771 (1967) (purported state policy requiring apportionment plans to respect county boundaries rejected as justification for deviation, because the state permitted the crossing of county boundaries in the formation of districts to equalize undue population deviations and did not demonstrate why or how respect for county lines required the particular deviations in issue).
examined Cited as authority (rule) Brown v. Thomson (4×) also: Cited "see, e.g."
SCOTUS · 1983 · confidence medium
Furthermore, a plan devised by [the Special Master] demonstrates that . . . the policy of maintaining township lines [does not] preven[t] attaining a significantly lower population variance"); Kilgarlin v. Hill, 386 U. S. 120, 124 (1967) ( per curiam ) (District Court did not "demonstrate why or how respect for the integrity of county lines required the particular deviations" or "articulate any satisfactory grounds for rejecting at least two other plans presented to the court, which respected county lines but which produced substantially smaller deviations"); Swann v. Adams, 385 U. S. 440, 445…
discussed Cited as authority (rule) Township of Franklin v. Board of Education (2×)
N.J. · 1977 · confidence medium
Kilgarlin v. Hill, supra, 386 U. S. at 122, 87 S. Ct. at 821, 17 L.
examined Cited as authority (rule) Franklin Tp. v. BD. OF ED. N. HUNTERDON REG. HIGH SCH. (5×) also: Cited "see, e.g."
N.J. · 1977 · confidence medium
Kilgarlin v. Hill, supra, 386 U.S. at 122, 87 S.Ct. at 821, 17 L.Ed. 2d at 774 ; Jackman v. Bodine, 55 N.J. 371 (1970), cert. den. 400 U.S. 849 , 91 S.Ct. 39 , 27 L.Ed. 2d 87 (1970).
discussed Cited as authority (rule) George Wallace, Sr. v. J. P. House, Individually and as Registrar of Voters of Concordia Parish, Louisiana, L. W. Davis, Etc. (2×)
5th Cir. · 1975 · confidence medium
The question is at what point these undesirable effects coalesce so as to deny legislative representation to minorities on a scale of constitutional dimensions. 15 For the first few years after Reynolds, the Supreme Court declined to analyze the problems presented by multi-member districts, aside from noting in Fortson v. Dorsey, 1965, 379 U.S. 433 , 85 S.Ct. 498 , 13 L.Ed.2d 401 , Burns v. Richardson, 1966, 384 U.S. 73 , 86 S.Ct. 1286 , 16 L.Ed.2d 376 , and Kilgarlin v. Hill, 1967, 386 U.S. 120 , 87 S.Ct. 820 , 17 L.Ed.2d 771 , that such schemes were not unconstitutional per se, while caution…
discussed Cited as authority (rule) Perry v. City of Opelousas
W.D. La. · 1974 · confidence medium
There is no irrational or haphazard mixture of single and multimember districts with the resultant “crazy quilt” effect that was considered objectionable in Kilgarlin v. Hill, 386 U.S. 120 , 87 S.Ct. 820 , 17 L.Ed.2d 771, 772 (1967).
examined Cited as authority (rule) White v. Regester (4×) also: Cited "see"
SCOTUS · 1973 · confidence medium
See also, e. g., Abate v. Mundt, 403 U. S. 182, 185 (1971); Kilgarlin v. Hill, 386 U. S. 120, 122 (1967); Swann v. Adams, supra, at 443-446 .
examined Cited as authority (rule) Egan v. Hammond (6×)
Alaska · 1972 · confidence medium
In the 1971 plan, population variations were reduced to a range of +23.75 to -45.93 percent in the House, and to a range of +26.14 to -17.22 percent in the Senate. [18] 377 U.S. 533, 577-578 , 84 S.Ct. 1362, 1390 , 12 L.Ed.2d 506, 537 (1964). [19] 385 U.S. 440, 443-444 , 87 S.Ct. 569 , 17 L.Ed.2d 501, 504 (1967). [20] 394 U.S. 526 , 89 S.Ct. 1225 , 22 L.Ed.2d 519 (1969). [21] 394 U.S. at 530-531 , 89 S.Ct. at 1228, 1229 , 22 L.Ed.2d at 524-525 (citation omitted). [22] Reynolds v. Sims, 377 U.S. 533, 579 , 84 S.Ct. 1362 , 12 L.Ed.2d 506, 537 (1964). [23] Id. at 579-580 , 84 S.Ct. at 1391, 12 L.…
cited Cited as authority (rule) In Re Senate Bill 177
unknown court · 1972 · confidence medium
This view is supported by Reynolds v. Sims, 377 U.S. 533, 585 (1964) ; Kilgarlin v. Hill, 386 U.S. 120, 121 (1967).
examined Cited as authority (rule) Calderon v. City of Los Angeles (4×) also: Cited "see, e.g."
Cal. · 1971 · confidence medium
(See also Kilgarlin v. Hill, supra, 386 U.S. 120, 122 [ 17 L.Ed.2d 771, 774 ]; Swann v. Adams, supra, 385 U.S. 440, 443-444 [ 17 L.Ed.2d 501, 504-505 ].) The reasons for eschewing such formulae are not far to seek.
cited Cited as authority (rule) Jackman v. Bodine
N.J. · 1970 · confidence medium
Ed. 2d 376, 388 (1966) ; Kilgarlin v. Hill, supra, 386 U. S., at 125, n. 3 , 87 S. Ct. 820 , 17 L.
discussed Cited as authority (rule) Chavis v. Whitcomb
S.D. Ind. · 1969 · confidence medium
In the term following that of Burns, the Supreme Court stated that “our cases do not foreclose attempts to show that in the particular circumstances of a given case multi-member districts are invidiously discriminatory.” Kilgarlin v. Hill, 386 U.S. 120, at 125, n. 3 , 87 S'.Ct. 820, at 823, 17 L.Ed.2d 771 (1967). 7 .
cited Cited as authority (rule) Newman v. Commissioners to Apportion
Mass. · 1968 · confidence medium
Fortson v. Dorsey, 379 U. S. 433, 436-439 ; Burns v. Richardson, 384 U. S. 73, 88-89 ; Kilgarlin v. Hill, 386 U. S. 120, 125, fn. 3 .
examined Cited as authority (rule) Preisler v. Secretary of State of Missouri (8×) also: Cited "see"
W.D. Mo. · 1968 · confidence medium
Without such justification, appellants' analysis of H.B. 195 made out a sufficient case under the Fourteenth Amendment (supra, at 122, 87 S.Ct. at 820).
discussed Cited as authority (rule) Silver v. Reagan
Cal. · 1967 · confidence medium
(Kilgarlin v. Hill (1967) 386 U.S. 120, 122 [ 17 L.Ed.2d 771, 774 , 87 S.Ct. 820, 822 ] ; Swann v. Adams (1967) 385 U.S. 440, 443-444 [ 17 L.Ed.2d 501, 504 , 87 S.Ct. 569, 572 ] ; see Silver v. Brown (1965) 63 Cal.2d 270, 277 [ 46 Cal.Rptr. 308 , 405 P.2d 132 ], and cases cited.) Moreover, the requirement that assembly districts not be divided in forming congressional districts has been subtantially vitiated by the 1965 reapportionment of the Assembly.
discussed Cited "see" McConchie v. Illinois State Board of Elections
N.D. Ill. · 2021 · signal: see · confidence high
See Kilgarlin, 386 U.S. at 123–24 (holding apportionments of 14.84% overrepresented to 11.64% underrepresented ran afoul of the Fourteenth Amendment absent explanation that adherence to political subdivisions “necessitated the range of deviations” or that alternative plans submitted were deficient).
discussed Cited "see" Contreras v. Illinois State Board of Elections
N.D. Ill. · 2021 · signal: see · confidence high
See Kilgarlin, 386 U.S. at 123–24 (holding apportionments of 14.84% overrepresented to 11.64% underrepresented ran afoul of the Fourteenth Amendment absent explanation that adherence to political subdivisions “necessitated the range of deviations” or that alternative plans submitted were deficient).
cited Cited "see" Senator Kenneth Armbrister Senator Gonzalo Barrientos Senator Teel Bivins Senator J.E. \Buster\" Brown Senator David Cain Senator John Carona Senator Rodney Ellis Senator Mario Gallegos Senator Michael Galloway Senator Chris Harris v. Dan Morales
unknown court · 1997 · signal: see · confidence high
See id.
cited Cited "see" Armbrister v. Morales
Tex. App. · 1997 · signal: see · confidence high
See id.
examined Cited "see" Terrazas v. Ramirez (6×)
Tex. · 1991 · signal: see · confidence high
See Kilgarlin v. Martin, 252 F.Supp. 404, 446 (S.D.Tex.1966), rev’d per curiam, 386 U.S. 120 , 87 S.Ct. 820 , 17 L.Ed.2d 771 (1967); Terrazas v. Clements, 537 F.Supp. 514, 527 (N.D.Tex.), stay denied, 456 U.S. 902 , 102 S.Ct. 1745 , 72 L.Ed.2d 158 (1982), further proceedings, 581 F.Supp. 1319 (N.D.Tex.1983) and 581 F.Supp. 1329 (N.D.Tex.1984).
discussed Cited "see" Gorin v. Karpan (2×)
D. Wyo. · 1991 · signal: see · confidence high
See Kilgarlin, 386 U.S. at 123 , 87 S.Ct. at 822 ; Chapman, 420 U.S. at 26 , 95 S.Ct. at 765 ; Connor, 431 U.S. at 420 , 97 S.Ct. at 1836 .
examined Cited "see" In re 1983 Legislative Apportionment of House, Senate, and Congressional Districts (3×)
Me. · 1983 · signal: see · confidence high
See Kilgarlin v. Hill, 386 U.S. 120 , 87 S.Ct. 820 , 17 L.Ed.2d 771 (1967) (apportionment plan with aggregate deviation of 26.48% not justified by policy of preserving county lines); Swann v. Adams, 385 U.S. at 443-44 , 87 S.Ct. at 571-72 (reapportionment plan with aggregate deviation of 25.65% for Senate districts and 33.55% for House districts unconstitutional where the state and the lower court failed to present acceptable reasons for the variation in population among districts). 2.
discussed Cited "see" Wells v. Rockefeller (2×)
SCOTUS · 1969 · signal: see · confidence high
See Kilgarlin v. Hill, 386 U. S. 120, 121 (1967); Martin v. Bush, 376 U. S. 222, 223 (1964); Kirkpatrick v. Preisler, 390 U. S. 939 (1968).
examined Cited "see, e.g." Morris v. Board of Estimate (5×)
E.D.N.Y · 1986 · signal: see, e.g. · confidence medium
See e.g., Kilgarlin v. Hill, 386 U.S. 120, 123-24 [ 87 S.Ct. 820, 822-23 , 17 L.Ed.2d 771 ] (1967); Mahan, sufra, [410 U.S.], at 319-20, 326 [93 S.Ct. at 982-83, 986] Connor [v. Finch, 431 U.S. 407 ,] 420-21 [ 97 S.Ct. 1828, 1836-37 , 52 L.Ed.2d 465 (1977)].
examined Cited "see, e.g." Hellar v. Cenarrusa (3×)
Idaho · 1984 · signal: see, e.g. · confidence low
See, e.g., Chapman v. Meier, 420 U.S. 1, 25 , 42 L.Ed.2d 766 , 95 S.Ct. 751 [764] (1975) (‘It is far from apparent that North Dakota policy currently requires or favors strict adherence to political lines____ Furthermore, a plan devised by [the special master] demonstrates that ... the policy of maintaining township lines [does not] preven[t] attaining a significantly lower population variance.’)', Kilgarlin v. Hill, 386 U.S. 120, 124 , 17 L.Ed.2d 771 , 87 S.Ct. 820 [823] (1967) (per curiam) (district court did not ‘demonstrate why or how respect for the integrity of county lines require…
examined Cited "see, e.g." Cosner v. Dalton (3×)
E.D. Va. · 1981 · signal: see also · confidence low
Reynolds v. Sims, 377 U.S. 533, 585 , 84 S.Ct. 1362, 1393 , 12 L.Ed.2d 506 (1964); see also Kilgarlin v. Hill, 386 U.S. 120, 121 , 87 S.Ct. 820, 821 , 17 L.Ed.2d 771 (1967); Toombs v. Fortson, 241 F.Supp. 65, 71 (N.D.Ga.1965), aff'd per curiam, 384 U.S. 210 , 86 S.Ct. 1464 , 16 L.Ed.2d 482 (1966).
examined Cited "see, e.g." Kirkley David, L. Little, J. E. Clark v. Pitser Garrison and Ed Wareing (6×)
5th Cir. · 1977 · signal: compare · confidence low
Compare Kilgarlin v. Hill, 386 U.S. 120 , 87 S.Ct. 820 , 17 L.Ed.2d 771 (1967), with Gaffney v. Cummings, 412 U.S. 735 , 93 S.Ct. 2321 , 37 L.Ed.2d 298 (1973).
discussed Cited "see, e.g." Connor v. Finch (2×)
SCOTUS · 1977 · signal: see also · confidence low
See also Kilgarlin v. Hill, 386 U. S. 120, 124 ; Swann v. Adams, 385 U. S. 440, 445-446 .
discussed Cited "see, e.g." Chapman v. Meier (2×)
SCOTUS · 1975 · signal: see, e.g. · confidence low
See, e. g., Kilgarlin v. Hill, 386 U. S. 120 (1967); Burns v. Richardson, 384 U. S. 73 (1966); Fortson v. Dorsey, 379 U. S. 433 (1965).
examined Cited "see, e.g." F. D. Reese, Etc. v. Dallas County, Alabama, Etc. (6×)
5th Cir. · 1974 · signal: see, e.g. · confidence low
See, e.g., Kilgarlin v. Hill, 386 U.S. 120, 122 , 87 S.Ct. 820, 822 , 17 L.Ed.2d 771 (1967). 26 The standard of review by which justifications of the plan are to be judged is not entirely clear.
examined Cited "see, e.g." Dove v. Bumpers (3×)
E.D. Ark. · 1973 · signal: see also · confidence low
White v. Regester, 412 U.S. 755 , 93 S.Ct. 2332 , 37 L.Ed.2d 314 (1973); Mahan v. Howell, 410 U.S. 315 , 93 S.Ct. 979 , 35 L.Ed.2d 320 (1973); Whitcomb v. Chavis, 403 U.S. 124 , 91 S.Ct. 1858 , 29 L.Ed.2d 363 (1971); see also Kilgarlin v. Hill, 386 U.S. 120 , 87 S.Ct. 820 , 17 L.Ed.2d 771 (1967); Fortson v. Dorsey, 379 U.S. 433 , 85 S.Ct. 498 , 13 L.Ed.2d 401 (1965); Burns v. Richardson, 384 U.S. 73 , 86 S.Ct. 1286 , 16 L.Ed.2d 376 (1966); Lucas v. Forty-Fourth General Assembly, 377 U.S. 713 , 84 S.Ct. 1459 , 12 L.Ed.2d 632 (1964); Reynolds v. Sims, 377 U.S. 533 , 84 S.Ct. 1362 , 12 L.Ed.2d 50…
KILGARLIN Et Al.
v.
HILL, SECRETARY OF STATE OF TEXAS, Et Al.
235.
Supreme Court of the United States.
Apr 10, 1967.
386 U.S. 120
1967 U.S. LEXIS 2201
William E. Wright for appellants., Waggoner Carr, Attorney General of Texas, Hawthorne Phillips, First Assistant Attorney General, and Mary K. Wall, Assistant Attorney General, for appellees.
Douglas, Claek, Harlan, Stewart, Adams.
Cited by 163 opinions  |  Published
2 passages pin-cited by 1 case
Pinpoint authority: bottom 87%
Citer courts: Sixth Circuit (6)

Lead Opinion

Per Curiam.

Following judicial, invalidation of the constitutional and statutory provisions governing the. apportionment of the Texas State Legislature, the State Legislature reapportioned both the House and the Senate. Appel[*121] lants promptly challenged on various grounds the constitutionality of H. B. 195[1] which reapportioned the House of Representatives in a combination of single-member, multi-member and floterial districts. The District Court sustained all aspects of the plan , except those provisions respecting the counties included in 11 floterial districts, 252 F. Supp. 404, which were found violative of the equality principles announced in Reynolds v. Sims, 377 U. S. 533. The court did, however, over appellants’ objections, permit the 1966 election to proceed under H. B. 195 with a proviso to the effect that if the legislature did not adopt corrective legislation by August 1, 1967, the counties in the floterial districts would be reconstituted as multi-member districts and all the representatives assigned to those counties would be. elected at. large.

We affirm the District Court’s action in permitting the 1966 election to proceed under H. B. 195 although constitutionally infirm in certain respects. In- the particular circumstances of this case there is ample precedent for the court’s action. See Drum v. Seawell, 383 U. S. 831; Toombs v. Fortson, 384 U. S. 210. We also affirm the court’s judgment insofar as it held that appellants had not proved their allegations that H. B. 195 Was a racial or political gerrymander violating the Fourteenth Amendment, that it unconstitutionally deprived Negroes of their franchise and that because of its utilization of single-member, multi-member, and floterial districts it was an unconstitutional "crazy quilt.”

In another respect, however, the District Court committed reversible error. Appellants alleged that in'addition to the inequalities inherent in the floterial districts,[*122] H. B. 195 also infringed Fourteenth Amendment rights because in the remaining legislative districts of the State there were unacceptable variations from the principle of Reynolds v. Sims that among legislative districts the population per representative should be substantially equal Appellants’ proof showed that in these other districts the population per representative varies from 54,385 to 71,301, or from 14.84%. overrepresented to 11.64% underrepresented. The ratio between the largest and the smallest district is thus 1.31 to 1. The deviation from the average population per representative is greater than 10% in 12 single-member districts, and a total of 55 representatives would be elected from eight multi-member districts in which the population per representative varies from the ideal by more than 6%..

The District Court sustained the constitutionality of H. B. 195 on two grounds. First, it held that appellants had the burden not only of demonstrating the degree of variance from the equality principle but also of “negating] the existence of any state of facts which would sustain the constitutionality of the legislation.” 252 F. Supp. 404, 414. This, the court held, appellants had not done. At. that time, of course, Swann v. Adams, 385 U. S. 440, had not been announced. Under that case it is quite clear that unless satisfactorily justified by the court or by the evidence of record, population variances of the size and significance evident here are sufficient to invalidate an apportionment plan. Without such justification, appellants’ analysis of H. B. 195 made out a sufficiént'case under the Fourteenth Amendment. —

Second, the District Court, not resting exclusively on its burden of proof ruling, found that the deviations from the equal population principle were amply justified here because they resulted from a bona fide attempt to conform to the state policy requiring legislative apportion[*123] ment plans to respect county boundaries wherever possible, We are doubtful, however, that the deviations evident here are the kind of “minor” variations which Reynolds v. Sims indicated might be justified by local policies counseling the maintenance of established political subdivisions in apportionment plans. 377 U. S. 533, 578-579. But we need not reach that constitutional question, for we are not convinced that the announced policy of the State of Texas necessitated the range of deviations between legislative districts which is evident here. In the first place, Texas policy, as elaborated by the Attorney General and concurred in by the District Court,[2] [*124] permits the formation of multi-member and floterial districts and even, where necessary, the violation of county lines in order to surmount undue population variations. In the second place, the District Court did not relate its . declared justification to any specific inequalities among the districts, not demonstrate why. or how respect for the integrity of county lines required the particular deviations called for by H. B. 196. Nor did the. District Court articulate any satisfactory grounds for rejecting at least two other plans presented to the court, which respected county lines but which produced substantially smaller deviations from the principles of Reynolds v. Sims. Similar fault can be found in accepting a general county-line justification for the population deviations that would occur should the present floterial districts be reconstituted ' as multi-member districts. The ratio between the largest reconstituted district and the smallest district created by H. B. 195 would be 1.21 to 1, and seven representatives would be elected from districts overrepresented by 13% or more. Another five representatives would be elected from districts overrepresented by 8% or more.

Appellants also raise specific challenges to the provisions of H. B. 195 with respect to Dallas, Bexar, and Harris Counties. Dallas and Bexar Counties are rel[*125] atively densely populated multi-member districts. Measured by population alone, each county could support one more representative than is allocated to it under H. B. 195, and thus more nearly approximate the arithmetic ideal. Giving each of them one more representative would not, of course, violate their county lines; and.we cannot be sure, at least on this record and in view of the 150-member limit on the House of Representatives, that Dallas and Bexar Counties must be denied additional representation in order to adhere to county lines in other districts throughout the State. If other districts cannot be re-formed within county lines in such a way as to afford Dallas and Bexar Counties another representative and at the same time to afford the re-formed districts constitutional representation, we would have to meet the question whether the state policy advanced here justifies the seeming[3] underrepresentation in Dallas and Bexar Counties, which is 6.42% and 7.59,% respectively. But on the record that is now before us we do not reach this, issue and believe that the District Court should give further consideration to these counties.

Appellants complain that district 24 in Harris County is assigned only six representatives whereas district 22 in the sanie county with a slightly smaller population is assigned seven representatives. The court found the record to establish that the population in district 22 was growing rapidly as compared with district 24 and would soon justify the extra representative. This factual de[*126] termination not being challenged here, we accept the ruling of the District Court regarding these districts.

The judgment is reversed in part and the case remanded for further proceedings consistent with this opinion.

It is so ordered.

1

Tex. Rev. Civ. Stat. Ann., Art. 195a contains House Bill .195. The Senate reapportionment of 1965, Tex. Rev. Civ. Stat. Ann., Art. 193a, is not here in issue.

2

The Attorney General expressed the state policy in a letter to the Speaker of the House, included as Appendix “D” in the opinion below, 252 F. Supp. 404, 455-456.

May 19, 1965

Honorable Ben Barnes

Speaker of the House

Austin, Texas

Dear Mr. Speaker:

As a result of the analyzing and briefing of Section 26, Article III of the Texas Constitution of 1876 and the recent decisions of the U. S. Supreme Court on the subject of state reapportionment, this office has reached the following legal conclusions.

1. Whenever a single county has sufficient population to be entitled to more than one representative, all the representatives to which it is entitled shall be apportioned, to that county.

2. Multi-representative counties may be apportioned so that the representatives can run at-large within the county or from individual districts within the county or¡ a combination of any of these methods.

3. If a single county does not have sufficient population to entitle it to one representative, such county shall be joined with one or more contiguous counties until the proper population ratio is achieved. The above cited provision of the Texas Constitution requires that counties be kept intact and their boundaries not be violated. ■ ■

4. Should the keeping of counties intact result in a violation of the Supreme Court “one man, one vote” rule, then the county lines must be violated but only to the extent necessary to carry out the mándate [*124] of the Supreme Court. In all other instances, county lines must remain intact and multi-county districts or flotorial districts be formed by the joining of complete and contiguous counties. .

The above legal conclusions have been set out as clearly and concisely as possible. These conclusions have been reached by a thorough analysis of the Texas constitutional provisions-as well as recent federal court decisions. Our research has also thoroughly developed the legislative history and legislative interpretation of the legislative sessions immediately prior to and immediately subsequent to the adoption of the constitutional provisions involved.

Yours very truly,

s/Waggoner Carr

3

Our cases do not foreclose ■ attempts to show that in the particular circumstances of a given case multi-member districts are invidiously discriminatory. See Burns v. Richardson, 384 U. S. 73, 88-89. .It has recently been suggested that multi-member districts such as Dallas and Bexar are adequately represented, if not overrepresented.- See Banzh'af, Multi-member Electoral Districts — Do They Violate-the “One Man, One-Vote” Principle, 75 Yale L. J. 1309 (1966).

Concurrence

Me. Justice Douglas,

concurring.

While I join the opinion of the Court, I reserve decision on one aspect of the problem concerning multi-member districts.

Under the present regime each voter in the district has one vote for each office to be filled. This allows the majority to defeat the minority on all fronts. It is suggested that in multi-member districts each person be able to vote for only one legislator, the theory being that in that way a minority, either political or otherwise, would have a chance tó elect at least one representative.

I am not sure in my own mind how this problem should be resolved. But in •'dew of the fact that appellants claim that multi-member districts of Texas are constructed in such a manner that Negroes are effectively disenfranchised, I would reserve that question for consideration when the case is once again before the District Court.

Me. Justice Claek would affirm the judgment of the District Court. Me. Justice Harlan and Me. Justice Stewart would affirm the judgment of the District Court in its entirety, on the basis of the reasoning contained in Me. Justice Harlan’s dissenting opinion in Swann v. Adams, 385 U. S. 440, 447.