White v. Weiser

PETITIONER: White
RESPONDENT: Weiser
LOCATION: Paris Adult Theater

DOCKET NO.: 71-1623
DECIDED BY: Burger Court (1972-1975)
LOWER COURT:

CITATION: 412 US 783 (1973)
ARGUED: Feb 26, 1973
DECIDED: Jun 18, 1973

ADVOCATES:
Charles L. Black, Jr. - for appellant
Lawrence Fischman - for appellees

Facts of the case

Question

Media for White v. Weiser

Audio Transcription for Oral Argument - February 26, 1973 in White v. Weiser

Warren E. Burger:

We’ll hear arguments next in number 71-1623, Bullock against Weiser.

Mr. Black you may proceed whenever you’re ready.

Charles L. Black, Jr.:

Mr. Chief Justice and may it please the Court.

I think it not unfitting to say to the Court that in the beginning that having had the benefit of his wise counsel, I now have the benefit of the physical presence of his honor, the Honorable John L. Hill, Attorney General of Texas who was going to attend some Court today at the table with me because it transcend an importance to the State into its political structure of this case.

The case involves the constitutional validity of Senate Bill One passed by the Texas Legislature in 1971 and signed the law by the Governor in June of that year redistricting the State of Connecticut into 24 new congressional districts in consequence of the April 1, 1970 census as against the objection of a violation of Article I, Section 2 because of certain population discrepancies amongst the districts.

These discrepancies may be described as follows. The average percentage of discrepancy amongst all districts is .745%, the highest variation is 2.43% up and the lowest 1.70% percent down making a total spread of approximately 4.1% and placing the smallest and the largest district in the ratio of some 1 to 1.04.

Appellees filed their complaint on October 1971 assailing this plan as unconstitutional and tendering to the Court as one of the remedial possibilities, a Plan B of which deferred from Senate Bill One, that a state’s plan only in that county lines as substantially only on that county lines were freely cuts on 18 more county lines cut and virtually a zero population variations thereby attained while the general plan of the legislatures bill was followed.

Evidence in the course was taken by deposition and it showed the following.

First, it’s conspicuously and pervasively showed a deep concern of the state legislators in the maintenance of present congressional districts of -- that is to say prior congressional districts and something like the same form in the preservation of the seniority accrued to the Texas Congressional Delegation and in other such concerns related to this which maybe called by the majority of term of incumbency protection which we taken account of both parties to the relation preferred to designate as a protection of the constituency-congressman relationship.

There is uncontradicted, unimpeached and affirmative evidence in the record that this concern in its inception and its implementation had no partisan or ideological bias and there is no showing in the record as we read it of any causal connection between this concern and any of the variations in the plan, small as they are or the whole setup.

Now, during the passage of Senate Bill One, the plan we are defending through the state legislature, another bill was originated in and passed for Texas House of Representatives which showed variations of 2.5% up and down or 1.6% in excess or lower than those and the bill which finally passed which we are defending.

There is no record, nothing in this record at least as to the average deviations in that bill.

There is evidence that the motives for the defeat of this bill in Conference Committee were various and only partly known but it is fair to say that they undoubtedly had to do in some substantial part with contest in congressional aspirations of a House Member and a Senate Member.

The record shows that certain of the legislators had a belief that they were operating under certain percentage leeway’s at a certain tolerance was afforded to them by the constitutional law of the subject whether that belief was right, well of course depend on the outcome of this case.

There is shown by the record an unimpeachably bona fide concern with the preservation of county lines.

The best evidence for this concern and as far as bona fide is amount of the plan as it emerged with we have thoroughly analyzed in our reply brief.

Finally, there is not a scintilla of evidence that we can find in this plan that we are defending of any bias toward any section, toward any type of sectional interest, toward any rural or city interest, industrial or labor interest of anything or anything of the sort.

With respect to interest so far as we can tell, it is completely random and nothing of this sort has been brought forth.

On January 10th, the appellee is herein filed an amended complaint in which in addition to Plan B, they tended to the Court as another alternative for remedy a Plan C which this time departed very widely indeed from the legislatures plan and rather radically in some respects redistricted the state.

On January 21, eleven days later, a trial was held which actually by agreement consisted only of arguments since all the evidence have been taken by deposition and at that trial, appellees’ counsel six times recommended the adoption of their Plan B.

The one which followed the legislative intent as closely as possible by reducing variation to virtually zero and Plan C was never mentioned by anyone except one judge in the course of a rather colorless enumeration of all the Plans before the court.

Next morning, January 22, 1972 at 11 o’clock in the morning, the Court reconvened in a very short opinion knocked out that the legislature’s plan for districting and announced that Plan C, the radically advisory plan was to be and I quote “The Plan of this Court for the congressional district of the State of Texas.”

The Court left open the possibility of a state, I beg the Court’s pardon of an action -- a new action by the legislature but the legislature -- the Governor refused to call the special session so that possibility was not a real one, this Court stayed this judgment on application to Mr. Justice Powell by him referred to the Court at about the end of January 1972 when the elections last year were held under this state’s plan.

During the proceeding --

Potter Stewart:

The elections Mr. Black were held under --

Charles L. Black, Jr.:

Under state plan.

Potter Stewart:

S.B.1.

Charles L. Black, Jr.:

Under S.B.1., yes sir, yes Your Honor.

Potter Stewart:

Not under the proceedings?

Charles L. Black, Jr.:

No, the judgment was being wholly stayed, there was no injunction against S.B.1 and it was there for used by the Secretary of State as who is the appellant herein.