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

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.

Potter Stewart:

So the present state legislature was elected under S.B.1.?

Charles L. Black, Jr.:

The State congressional delegation was elected.

Potter Stewart:

I beg your pardon?

Charles L. Black, Jr.:

Yes, the intervention, there was an intervention on the plaintiffs’ side on the appellees’ side by the chairman of the Bexar County Republican Committee and others and they have filed the brief herein as appellees intervenors but it’s believed that the — neither the intervention or the — nor the position here add anything significantly one way or another to the issue of this case.

Now, may it please the Court, the condemnation of so tight fitting, a plan as this, with variations up and down of 4.1% must rest if it is to be pronounced on the strictest rule associated where the case of Kirkpatrick against Preisler, the rule are very strict arithmetical equality as to congressional district.

We have other contentions which I will urge but our — with our contention in chief here to this Court is that we ask this Court that it recede generally from the rule attributing constitutional significance to variations of the magnitude of that found in this case, any constitutional significance at all.

We have to start of course with the recognition that Mahan against Powell — against Howell seems to put our question in the somewhat different frame of reference today.

We — the frame of reference being that it would seem of a distinction between the Equal Protection Clause and the inferential rule drawn by analogy of functional equivalency from Article I, Section 2.

But this frame of reference may easily be more misleading that helpful as to this question because the principle question actually is still just the same.

The constitutional law of congressional districting has to march on its own feet if there had never been a state legislative districting or apportionment case.

If there were no Equal Protection Clause, if there were no Fourteenth Amendment, the dominant question in this case, the one principally interesting in this Court would still be — can it rationally be held by analogy or functional inference from Article I, Section 2 that the substantive constitutional law of congressional districting contains a requirement of exact arithmetic equality of district populations or can this be held by any other lawfully warrantable process of reason.

The right answer to this question —

Byron R. White:

Well Mr. Black, can you find anything in there that indicates that any degree of — in its exactitude would be against the Constitution?

Charles L. Black, Jr.:

I think it is fair to a — to infer analogically or as a matter of functional equivalency from a plan which aims at a rough and substantial proportionality of representatives to constituencies that the groups which make up of the delegations or —

Byron R. White:

If within the State, one district was five times as large as another?

Say there was a state with two districts and that one district — one congressional district was five times as large as the other.

Charles L. Black, Jr.:

Well, that would —

Byron R. White:

Now you would say that would violate that provision in —

Charles L. Black, Jr.:

On Article 1 Section 2, that —

Byron R. White:

Now what – where do you find that?

Charles L. Black, Jr.:

That would Your Honor — that would be relatively easy I think because there is no variation amongst the States which is anything like that great.

The real difficulty is reached when find such variations as an ideal districts as those between some of the states at the extreme of the ideal district table which never varied about more than 200,000 or so and at that point, my answer would be that there’s no mechanical character in this inference that the federal plan aims at a substantial equality and that the state dealt congressional delegation ought to be apportioned by analogy

Byron R. White:

Do you say the State ought to be free to vary as much as the Constitution permits states to vary among themselves?

Charles L. Black, Jr.:

No, Your Honor.

That is the meaning of my statement that as I see it that I don’t think this is a mechanical inference which carries over the exact arithmetical characteristics.

I think it’s as the nature of the federal plan as a plan aiming not at total, not at exactly forming but a substantial and reasonably quality that must form the first term and inn analogical inference to any rule having to do with the formation of the states congressional delegation.

What is substantially reasonable maybe a different matter within a state from what it is on the national scale but it’s — at the other end of the scale there’s simply no warrant whatever for the use of a — of the federal scheme permitting without feeling of wrong or policy, the variations which it does as the first term in an analogy which terminates into judgment — that zero variation is somehow the rule in state delegations.

Now, we have to recognize of course realistically at this time and at this hour that there are certain expressions in the certain strong expressions and the reasonably decided case of Mahan against Howell which seem to assume vitality or contending vitality in the Kirkpatrick rule was applied to congressional districts.

But it’s never too late for the right answer and its appellant’s submission herein that the answer in the negative to the question whether this inference of substantive law is warrantable, is overwhelming the right answer for two reasons which I will canvass so either one is sufficient alone, and I would urge upon the Court that there never will be a better case than this.

For this, the total new look and total reconsideration of the Kirkpatrick rule of exact arithmetical exactness.

Charles L. Black, Jr.:

First, because in this case from every practical point of view, the variations attribute a 4.1% up and down.

Secondly, there is a total lack of any evidence or any suggestion of any kind of bias in this case toward any sort of political or sectional or economic interest.

And finally because there’s an absolutely clean, unimpeachably clean approach to the county line question, to the question of the integrity of counties. Now in my answer to Mr. Justice White, I have really in the sense broken into the first of our points which is simply that in brief though at this matters of better canvass of arithmetical as they are in writing and in extension we try to do that in our brief.

But then some, the federal — there is nothing in Article I, Section 2 on an inference can be drawn there from at which at least the mind rationally to a requirement of exact arithmetic equality.

Its well I think to look — well, first I looked around the picture out.

I will say with our second point will be and it’s simply that there are easily accessible data.

Mere arithmetical facts which it were pretentious to refer to as demographic which put it entirely out of doubt.

That there is no firm correlation whatever for multiple reasons at the low percentage range between very small variations and population as of census day and the voting power of people who either do vote or can vote at the times and places when they do vote which I remind the Court commence two-and-one- half years after the census day of April 1st in the zero numbered —

William H. Rehnquist:

Mr. Black?

Charles L. Black, Jr.:

Yes, Your Honor.

William H. Rehnquist:

Why is that you would read Mahan as being a reaffirmation of Kirkpatrick?

I would have taken if that no party in Mahan had any occasion to challenge Kirkpatrick and therefore there was no occasion to deal with it other than as they didn’t see.

Charles L. Black, Jr.:

Your Honor of course that is correct and perhaps I have been guilty of advocates pessimism but they did seem to us to be expressions which at least I assume that Kirkpatrick was for the moment being taken as a fix star and the part of wisdom for us therefore is directly to address ourselves to that point.

Of course there was — it is very true as Your Honor says that there was nothing more at issue in Mahan that concern of contending validity of the rule in Kirkpatrick against Preisler.

Now the relevance of the last point to substantive law, the relevance of this lack of correlation subject law is very simple and thoroughly pervading of the whole legal framework.

Good law never commenced futility and when it discovers that it’s commended the futility by inadvertence, it hastens to retract it.

We think that it can be shown by this simple arithmetical means that the command of exact arithmetical equality is a futility that it affects nothing, that it has no connection of any kind with the power to vote at the times and places when people actually do vote.

Now if I may develop these points just a little more deeply, let me revert as one does revert at this times the question of the intent of those who put into place Article I, Section 2, again this is a matter much better canvass in writing and with extensive references but I think that we happen to be furnished by history with a single incident which if unrebutted and it is not rebutted is absolutely conclusive as to what the framers of the Constitution would thought of a case of this kind.

When the first apportionment, the interim apportionment in Article I, Section 2 was constructed by a committee in the constitutional convention that committee had before it, the best population estimates which are of demography not yet so baptized and made available to it.

At the time, the committee came back to the whole convention with the plan which substantially respected the population figures but did so only substantially and departed from what they would have indicated considerably more widely than anything in this case or at any case remotely like it.

Every attempt to change this report was perfunctory defeated on the floor of the convention and at last the motion was made to ask the committee to state its reasons.

Whereupon this practical man who realize that such reasons are multiple that they differ amongst the different constituents of the districting body and/or the apportioning body that they may be only partly articulable proceeded to defeat this motion 10 to 1.

We have asked in our brief and I ask again with respect.

Is it so much as possible that the people who did this would have considered the variations in this case?

4.1% up and down as violative of the Constitution, they were then building of the article lay within writing of the very section they were at that moment drafting.

There is nothing in the record and find it any elsewhere to rebut this inference.

Now, I think that the question of the analogy with the federal plan has already been dealt with in my response to Mr. Justice White’s question and I would simply say, finally that on this point that there is nothing in the derivation of the congressional districting rule.

Nothing in its working, nothing in its history to make it more exact than the state legislative rule.

In fact the connection here with Mahan against Howell is simply that since there is nothing in Article I, Section 2 or anything inferable from Article I, Section 2 affirmance history or from its working through history that could support a stricter rule than the rule under the vague mandate of the Equal Protection Clause.

Mahan against Howell in it’s holding at least ought to afford very strong collateral support to us though indirect that at this stage because if these rules are the same then they, in the texture with which they end up at the end of that derivation, the rules mainly of the Equal Protect Clause and the rule derived only by functional analogy from Article I, Section 2 and from nowhere else.

Charles L. Black, Jr.:

If these things are the same, then if there was room for the accommodation to pragmatic factors in Mahan against Howell, surely, there should be room for accommodation to pragmatic factors in a congressional case.

I would only remind the Court that the tolerance that we ask for in this case is exactly as it happens four times less one-fourth as much as that — that was granted in Mahan against Howell.

Now, I would ask the Court’s indulgence for a very small amount of arithmetic at this time and then completely conclude on this point.

The case is — this is a bit of a filling out of my assertion that that is a futility that the command disagree of exactness.

The cases have insisted on dilution of the vote as the rationale for the portion of cases, Wesberry against Sanders, the leading congressional cases haughtily saturated with this concept and line after line, paragraph after paragraph that occurs.

Now one of the facts of the correlation between the raw body count on April 1, 1970 and the power of the vote in congressional districts and then ensuing twelve-and-a-half years beginning two-and-a-half years later, and ending twelve-and-a-half years later?

I pass over briefly the census count problem with blacks and minorities, the minor problems such as alien students, prisoners and so on and come to the three great strategic factors which totally defeat this correlation.

First, is the surprisingly wide variance in the percentage of age eligible as to vote as amongst the congressional districts and virtually every state in the union.

The second is the very wide difference in growth patterns in the congressional districts in any large state in the union or even any middle size state in the union and finally and as a clincher, the unpredictability agreed upon the whole authorities in the present state of the art of demography of these growth patterns when one remembers that these things operate sequentially over a period of twelve-and-a-half years on raw body count as an indicator of voting power.

And when one remembers that the projection, what the sub-national post-censual projection as they call it, which one would be asking of the demographers has to do not only with people of 18 in 1970 but with people who are 8 in 1970 and it asks them to say how many people 18 years old? How many citizens as opposed to aliens?

How many non-prisoners as opposed to prisoners that would be in a district?

The position becomes quiet hopeless and I think we have to stop and ask at this point what it is that these cases are doing.

Is it something symbolic or something that has to do really and truly with the power of the vote?

It is our submission that if the latter is the case and it must surely be the case then this arithmetic which may have a trivial sound figures often do a sound trivial is utterly and deadly serious and that these problems have to be faced before another case is decided.

With respect or in deference in which the raw census count is treated as though it really did accurately indicate the power of the vote.

As to the age eligible population, let me give you Your Honors an example, well I’ll give to the whole Texas range, the Texas districts differing by 4% in raw population have age eligible population from 324,000 to 264,000 with no correlation whatever to speak of with the raw population.

We’ve done a table that ranges the districts in order of raw population as of April 1, 1970 and I’ll just give the Court the first five.

The first largest, second largest, third largest so on districts, we then ranged them in order of age-eligible populations.

The numbers in the different districts one, two, three, four, five are as follows: 318,000; 286,000; 295,000; 325,000; 297,000 but the message is made a little more intelligible if I give the Court the order numbers.

These districts respectively stand in the following order and remember that they are in the order one, two, three, four, five in population.

The third, the twentieth, the eighteenth, the first and the sixteenth, those are not district names, those are numbers in which the first five districts in population stand when they are arrange in an order of age eligible population.

Now the rest of the table for Texas shows the same thing and similar tables show much the same thing from other states.

The growth pattern problem speaks for itself when one considers that what one is dealing with as growth patterns of twelve-and-a-half years projection of growth patterns applied to 18 year olds and up and to all these other factors and I don’t really think it’s necessary once attention is gone to it to say very much more about that.

I would simply conclude —

Byron R. White:

I don’t know that in actual census speaking, these is as much of a justification for varying from what — from absolute equality based on census figures is inaccurate as they are.

Let’s assume they are inaccurate either 10% higher, 10% lower.

Charles L. Black, Jr.:

With the deepest respect Mr. Justice White, it’s not upon the inaccuracy of the census figures that we principally rely that is as we have said in our brief a probably existing but relatively minor factor.

It is with the —

Byron R. White:

It isn’t much for an argument for justifying the variation.

Charles L. Black, Jr.:

Not very much.

Charles L. Black, Jr.:

It wouldn’t be and it’s not ours.

Our principal arguments are —

Byron R. White:

Or even growth patterns aren’t much?

Charles L. Black, Jr.:

Growth, I should respectfully differ when one considers that growth patterns up and down in Texas.

Byron R. White:

But what if it’s growth down like a lot of places are?

Charles L. Black, Jr.:

Well in Texas, one has growth both up and down.

Byron R. White:

That’s right.

Charles L. Black, Jr.:

So that the — when one superimposes these growth patterns only in part predictable on the age eligible population.

One finds simply that one might arbitrarily select census population though it — with respect, I shouldn’t see why that would be done but one can’t select it with any warrantable hope that it has anything to do with the power of the vote at the times when people actually do vote because of the lack of correlation with eligibility to vote because of the large and unpredictable character of the growth patterns.

How far would you go — how for would you go in allowing a very issue, would you go 20% or 50% or a 100%?

Charles L. Black, Jr.:

I — with respect Your Honor, I don’t think that question is susceptible of a categorical answer.

I think it would take more study than a single case ever afford.

What I should say confidently in this case is that we are a very long way below the point at which any significance as to voting power can be attributed to the variation in population which are shown.

I thank the Court.

Warren E. Burger:

Thank you Mr. Black.

Mr. Fischman.

Lawrence Fischman:

Mr. Chief Justice, may it please the Court.

I will address myself if the Court please to the first of the appellant’s arguments that is whether the rule laid down in Kirkpatrick versus Preisler should be retreated from.

Secondly, I will address myself to whether if that not be the case, the record in this case brings a case before the Court that follows within the Kirkpatrick rule and thirdly, I’ll say a word about the remedy which was fashioned by the court below in which is an issue here today.

The grounds urged by appellants, may it please the Court in support of its position that Kirkpatrick ought to be retreated from our fourfold.

First that Kirkpatrick is not supported by the cases relied on in that decision.

Kirkpatrick as I recall cited Wesberry versus Sanders and Reynolds versus Sims.

These cases where the Wesberry of course being the first congressional case in this recent line and Reynolds being the major if we may use that term with respect to any one case decision with respect to legislative.

From those cases, was fashioned the rule enunciated in Kirkpatrick, we think that the State must make a good faith effort.

The emphasis being on the effort to achieve absolutely quality not that equality be achieve.

If the recent Mahan decision stands for anything, I think it’s possibly a reaffirmation of that principle.

And we certainly don’t rely on that decision since it was not a congressional case.

But as we see, the plain wording of the Constitution requires that people of the State elect the members of the United States House of Representatives, not the Texas legislature.

If — where the intention of the framers of the Constitution to permit the legislatures to elect the representatives, certainly it could have done so as they did in the case of United States Senators.

The cleavage between the two Houses, the great compromise very clearly articulated in the Wesberry opinion but the point that we wish to emphasize is this.

Lawrence Fischman:

We are here today because the State of Texas did not make a good faith effort to achieve absolute equality not so much that equality was not achieved.

The second reasons advanced by the appellant are the — I believe they refer to the Kirkpatrick decision as a draconian rule or procrustean rule and suggest that it is a rule of absolutism.

I think this is an incorrect reading.

They asked the Court to make allowance for reasonable legislative interplay.

This proposition was of course expressly rejected in Kirkpatrick.

We suggest on very sound reasons.

It leaves the door open first of all to gerrymandering under whatever reason that the legislature might have.

And most importantly, may it please the Court, is that this proposition presumes that the legislature is unable to act in good faith.

We submit that the function of the legislature in congressional redistricting cases is to act impartially to apportion the congressional seats among the population considering only factors of population and nothing else.

We’re willing to say that the legislature can make that good faith effort and we feel it to presume otherwise, is not only a gratuitous insult to the legislature but to the people that elected him as well.

I think a moments time should be devoted to the argument that because census data is inaccurate, it cannot be that Constitution requires a good faith effort to achieve absolute equality.

Warren E. Burger:

You seem to be perhaps suggesting on variation of the test here Mr. Fischman if I understood you correctly.

You — I got the impression you were telling us that you don’t fault Texas so much for a bond result as you do for not trying hard enough.

That’s the way I read you in any event.

That means that a reviewing court must get in to motives primarily rather than results.

Lawrence Fischman:

I think not in the — not in classical sense of trying to “divine intent” for example in a criminal case.

I don’t think and had never suggested Mr. Chief Justice that the legislature of the State of Texas is said out with bad faith intent to deprive the people of the State of Texas or certain portion thereof of the full weight of their bone in electing congressional representatives.

When we talk about intent, we must consider in the case at bar, the justifications that the State relies on.

How did we get the bill with 4.1 deviation top to bottom?

We got it for two reasons primarily.

Number one, the desire to preserve incumbents, now I submit to the Court that if this is a legitimate consideration, then the Court should and expressly say so and would necessarily reverse this case but we think it’s —

Potter Stewart:

What if it’s simply a neutral consideration?

What if it’s consideration that the court might decide as simply no business to this Court?

It’s not an invidious or it’s not an impermissible or illegitimate consideration but it’s not one maybe that we should say necessarily legitimately justifies any further deviation than might otherwise exist.

What if it’s simply neutral?

Lawrence Fischman:

I don’t think it can never be neutral.

Potter Stewart:

Well, why couldn’t it be?

It’s just no business of this Court.

Neutral from that point of view.

Lawrence Fischman:

Well —

Potter Stewart:

In other words, we can all agree, everybody would agree that if there were evidence here, racial discrimination, we would all agree that that’s wholly illegitimate for rather constitutional business.

But if it were this candidate or this incumbency preservation, constituency preservation, what if the Court should just decide, that’s no business of ours and therefore a neutral factor.

Isn’t that within the realm of possibility?

Certainly it could be neutral from the point of view.

Lawrence Fischman:

Is to stand, we think that this is an element of the equation in determining good faith effort.

Potter Stewart:

This factor, this ingredient wasn’t in Kirkpatrick, does it?

Lawrence Fischman:

No.

Potter Stewart:

One way or the other?

Lawrence Fischman:

It’s not.

It’s been before the Court twice in Clark versus Williams and in Taylor versus McKeithen but in neither case did the Court reach those questions.

They were there on procedural matters.

The District Courts I might add in both of those cases squarely rejected this consideration and we think on extremely legitimate grounds.

No Congress —

Potter Stewart:

What is in the Constitution that prevents a legislature that considered this?

So long as it otherwise makes the test of Article I, Section 2.

What is there that makes this an illegitimate consideration?

Lawrence Fischman:

Mr. Justice, the members of the United States House of Representatives are to be elected by the people and not by the legislatures.

Potter Stewart:

Well, but the legislature devised this plan of the congressional districting and that’s what I’m talking about.

What is there in the United States constitution and any provision, Article I, Section 2 or anywhere else that prevents a state legislature in providing the Congressional Districts for the State to give consideration to the preservation of incumbents so long as it doesn’t otherwise violate Article I, Section 2.

What is it that makes this an illegitimate consideration constitutionally?

Lawrence Fischman:

Well, I can’t follow the premise because, I can’t — I’m not prepared to say that consideration of preserving incumbents is not otherwise violative or Article I, Section 2.

It’s our reading of Article I, Section 2 which we think is consistent with Wesberry that by the people means by the people.

This is the whole basis for the language if we are to take the opinion in Wesberry as being authoritative on the constitutional history that led to this.

The great compromise was that in one branch of United States Legislature, the States were to be represented and then the other, the people.

This is the only answer that I can give.

There are no expressed wordings of course that preservation of incumbents is not prohibited. But we think that it flies in the teeth of the great compromise of Article I, Section 2 —

Potter Stewart:

Are you suggesting that this motivation to preserve incumbency is itself violative of something in the Constitution?

Lawrence Fischman:

Insofar as it negates, the good faith effort that we believe Article I, Section 2 requires.

We believe that Article I, Section 2 requires there’ll be no considerations other than population as overlaid by demographics.

We think that Kirkpatrick left open for —

Potter Stewart:

What if — even though you have computerized, perfect equality at least so far as any figures you could use as a benchmark had it and yet if you could show racial discrimination it would — it could still be a highly unconstitutional scheme of congressional districting, couldn’t it?

Lawrence Fischman:

Yes, it could under Fourteenth Amendment.

Potter Stewart:

Right.

And is it your claim that if you had perfect numerical proportionalities so far as any benchmark you could find that this would be a suspect scheme if you could show that it was motivated by a desire to protect incumbents?

Lawrence Fischman:

Oh!

I wish I could say that but I don’t think I can.

It is our belief that where the desire to protect incumbents subordinates the legitimate considerations of population then it rises to the magnitude of the constitutional violation.

Potter Stewart:

You didn’t say it’s not a justification for any variation, any between districts?

Lawrence Fischman:

And we believe not.

Potter Stewart:

It’s just not good enough reason to vary from equality?

Lawrence Fischman:

I cannot think of any justification to support it.

No Congressman has the best —

Potter Stewart:

What about following county lines or local subdivision lines?

Lawrence Fischman:

No, I don’t.

Potter Stewart:

Will that justify some variation?

Lawrence Fischman:

I’m inclined to say not in the congressional case.

Potter Stewart:

Which one cut the most lines in this case?

Plan B or C?

Lawrence Fischman:

Plan B, I believe, Your Honor.

Potter Stewart:

Plan B cut more county lines than C did?

Lawrence Fischman:

Yes, sir.

Potter Stewart:

And C was adopted by the Court?

Lawrence Fischman:

Yes, sir.

Potter Stewart:

And C had more variation in than Plan B, didn’t it?

Lawrence Fischman:

It was approximately three times as great if the amount involved is significant.

Plan B —

Potter Stewart:

Well what was the justification for that, for Plan C varying more than Plan B did?

Was it the desire to follow county lines?

Lawrence Fischman:

We have nothing in the Court’s opinion other than the statement that Plan C most closely effectuates the principle of one man, one vote.

We don’t know and I wouldn’t presume or speculate on why Plan C was adopted.

Potter Stewart:

There is just wasn’t any evidence about it.

No explanation on why Plan C rather than B was adopted even if you are going to throw up the legislative plan.

Lawrence Fischman:

There was nothing in the Court’s opinion.

The plan was before the Court for some period of time, there’s some pleading of course to support the plan but the Court had comparison of the — all three plans both in —

Potter Stewart:

Which one followed the incumbency of the plans?

Which preserved the most incumbents?

Lawrence Fischman:

That would be the plan that the Court declared unconstitutional, S.B.1.

Potter Stewart:

Yes but how about between —

Lawrence Fischman:

Plan B —

Potter Stewart:

Plan B and C?

Lawrence Fischman:

There is no evidence in the record and —

Potter Stewart:

Your client instructed both B and C.

Lawrence Fischman:

That’s correct.

Potter Stewart:

So, you ought to know which one did what to incumbents.

Lawrence Fischman:

In all kinder, I do not.

Potter Stewart:

So you really were neutral.

Lawrence Fischman:

Yes, I was.

Potter Stewart:

Well, is it not true that Plan B more closely resembled in shape and form S.B.1. than plan C did?

Lawrence Fischman:

That is correct Mr. Justice.

Potter Stewart:

And yet it had less variance than Plan C on a population basis?

Lawrence Fischman:

It did.

Potter Stewart:

How can you defend Plan C here over and above your own plan B?

Lawrence Fischman:

Only on the basis that this is what the Court imposed.

I think the only difference was, that plan C was represented to the Court to be based solely on population and no other factor at one time in their pleadings to this effect there was discussion about considering social and cultural and economic ties, community of interest in this sort of thing.

This was some of the discussion that appears in the record among the legislators that were concerned drafting the bill.

Plan C took none of these at least we are so represented into account and is based solely on population, there was no — as I understand it regard for county lines or at most a minimal regard.

The sole test was population.

And if I had to speculate on what the court below thought, I would suggest that this is probably the basic reason that Plan C was adopted.

I did wish to emphasize I think appropriately at this point that Plan C was adopted by the Court conditionally.

The way it was left wide open for the legislature to hold the special session, the legislature in point or fact is in session at this time, approximately one-third of the legislative session is over so far not a word about a congressional redistricting bill.

Lawrence Fischman:

There’s — whatever arguments there may be for the fact that the Governor didn’t call a special session, there are none now. The legislature is free to adopt any plan including plan B.

William H. Rehnquist:

Mr. Fischman, I gather under your view, you would reject the following of county lines and you would reject protection of incumbency as justifications for population deviation.

Do you concede that there are any justifications other than those that refer population disparity it this and congressional districting?

Lawrence Fischman:

I do, Mr. Justice Rehnquist.

They are demographic arguments only.

I think it is certainly legitimate for the legislature to consider documented or is best that the signs and demography can document patterns of growth or declined population.

I think it is — I don’t — it will be a boarder line situation to consider voting population but certainly allowance is for demographics as suggested in Kirkpatrick or certainly valid considerations but they are neutral so long as they are done in a systematic way based on as a reliable data as is available and not with the intention of discriminating and not as an afterthought to justify what has been done for other motivations, protection of incumbents, creating a safe seat for one of the members of the legislature to run for Congress.

These considerations are singularly inappropriate and any other justification cannot be used as a cover-up as it were.

Mr. Fischman, did you prefer one plan over the other in the court below?

Lawrence Fischman:

Our argument if the Court please was we did emphasize that Plan B should be adopted.

I would say in defense to that —

What if you submitted another one?

You submitted the C after you submitted B as an amendment to your complaint, didn’t you?

Lawrence Fischman:

We filed an amended complaint offering both Plans B and C.

I cannot answer that question Mr. Justice inside the record.

But outside the record, I thought it would be appropriate not only to have a plan with the population disparity earned out as Plan B and to follow as closely as possible what the legislature had done.

But I also thought that we ought to tear everything up and start from scratch and I have to admit to be the imminence per se behind Plan C but it doesn’t appear in the record.

But as far as the effect politically I have to say in complete candid before this Court, I had no idea.

I would like to discuss for a moment what alternatives there are in the consideration, what the appropriate constitutional test is.

The appellants suggest that perhaps some sort of leeway ought to be allowed.

They don’t argue that it ought to be the same leeway percentagwise as between states.

This notion of course was expressly rejected in Kirkpatrick.

The reason set forth in Kirkpatrick I think much better answer that argument and I can.

We have seen a very practical result of this allowance of the toleration.

This is what the legislature is aimed for.

We have testimony among the people that were moving forces behind these bills that protection or that they were allowed a toleration of between four and 10% and as long as they got within some said 4%, some said within 10%, everything would be alright.

As one of the witnesses put it, their desire was to protect the incumbents and then make it fit to numbers within 5%.

This is precisely a devise that the Court foresaw in Kirkpatrick and a very cogent reason for not adopting any sort of de minimus standard by whatever name you call it.

It is no more than a de minimus standard to allow this sort of toleration.

The goal should be absolutely quality.

Lawrence Fischman:

It doesn’t have to be reached if there’s good reason for it not to have been.

This is all the constitution requires in our view.

Potter Stewart:

And the good reason you say can be only a demographic reason, i.e. an estimate, a valid rational supportable estimate of growth in the district or of laws of population in the district.

Lawrence Fischman:

That is our view Mr. Justice.

I think we can find it in the record in this case.

It might be better to say our view is a negative one of what a good faith effort is not.

It is not preservation of incumbents, it is not snarling up the legislature into a special session to decide whether Senator Wilson will occupy Congressman Douds’ to be vacant sit or whether Representative Heinz will have that privilege.

And this is what the final map was a product of.

And the reason and this is well supported in the record that the lower bill adopted by the House twice and sent to the Conference Committee or sent to the Senate and end it up in the Conference Committee was not adopted because in that bill, the home county of Representative or of Senator Wilson, Angelina County was excluded from the Second District and Representative Heinz home county was in it.

The final bill that came out was just the opposite way around.

And we must also consider the fact that the shape in one district must necessarily reflect the shape of the others.

Potter Stewart:

What — I didn’t get the last point.

Lawrence Fischman:

The shape of one district must necessarily reflect the shape of others and when I say shape, I don’t mean just the geographical shape; I mean the number of people.

Because you only got so many — you got 11 million people to work with, you so many in one district.

Potter Stewart:

24 districts, right?

Lawrence Fischman:

Yes, Your Honor.

These were the considerations of the legislature.

And neither —

Potter Stewart:

What you mean by that last is the more districts that are above the average, the more probably that will be below the average.

That’s all you’re saying?

Lawrence Fischman:

Mr. Justice yes.

I should talk for a moment about the county line argument.

The Court we think in Kirkpatrick expressly and finally rejected the argument of the preservation of county lines is a legitimate consideration in congressional redistricting.

The appellants suggest that it was rejected because it was a sham.

We find those such language in the opinion of this Court.

In Mahan recently decided, the Court held as we understand it that in legislative — state legislative redistricting, this was a legitimate consideration because the County Governments where in any instance is functionaries of the state that there was in the case of Virginia, there was local legislation that affected counties only.

We find no such considerations or at least not of such a pervasive nature in congressional redistricting as would allow for any substantial variations based on preservation of county lines.

But the basic problem that we have in this case with the county line argument is that we don’t think it was done on a consistent systematic basis.

County lines were cut as we pointed out in our brief were necessary.

I will retreat from the term expedient where it was necessary to do so.

Lawrence Fischman:

We have Little Midland County with the population of 60.

Not Midland County, Ector County with the city of Odessa is located with a population less than a 100,000 people which cut in half right through the city of Odessa.

Under S.B.1., we have instances in Bexar County in particular where largely rural districts intrude into Bexar County.

It point first in the 23rd districts whereas under Plan C, I believe Bexar County would probably undoubtedly deal with elect to congressman.

The most blaring example is in the Sixth District which affects my home County of Dallas.

The Sixth District runs all the way from nearly Houston area, O’Brien which is the home of Congressman Teague.

Northwest into the southern part of Dallas County drops down and comes back around and catches the south western corner of Tarrant County.

Fort Worth?

Lawrence Fischman:

Yes, Your Honor.

That’s Fort Worth, it’s the large metropolitan area there is a number of smaller communities there. But in this case, this is the — we submit not the proper case for determination of the validity of county line arguments in congressional redistricting.

Warren E. Burger:

How many people in that district, approximately if you know of that?

Lawrence Fischman:

It is one of the — I believe slightly under populated districts, I don’t have that —

Warren E. Burger:

That’s alright.

Lawrence Fischman:

— figure in front of me.

But without the inclusion of the southern part of Dallas County and the southwest corner of Tarrant County, it would be no district at all and under Plan C the district shape is radically altered to much more reflect the fact that it is predominantly rural district.

This is the Farm Belt Cattle, perhaps the various kinds and the community of interest if any between the people and the southern part of Dallas County and the people in the O’Brien Texas area is almost nil.

Finally, I wish again to emphasize that the remedy selected by the Court was a conditional one.

No argument is made that the Court exceeded its authority that it was on — that there is no authority for the imposition of Court order districting.

The quarrel I believe of the appellants in the case at bar is that the legislature should have had an opportunity.

They have and have always had that opportunity.

We think that this bill is manifestly unconstitutional because of the lack of the good faith effort.

We are confronted with the situation of consistent disenfranchisement in every phase of government in the State of Texas.

The Court was aware of this, acutely aware of it and felt I’m sure that there was no alternative but to impose a constitutional plan conditionally and give the legislature an opportunity to correct what was wrong.

Thank you.

Warren E. Burger:

Thank you gentlemen.

The case is submitted.