(concurring in part and dissenting in part.)
In concurring in part and dissenting in part with the Judgment, I make the following:
GENERAL OBSERVATIONS FOR CONSTITUTIONAL LAW APPLICABLE
Mr. M. R. Justice Harlan’s separate Opinion in Whitcomb v. Chavis demonstrates the evident “malaise among the members of the Court” with prior decisions in the field of voter qualifications. He further observes that the “suggestion implicit in the Court’s Opinion that Appellees may ultimately prevail if they make their record in these and like respects should be recognized for what it is: a manifestation of frustration by a Court that has become trapped in the ‘political thicket’ and is looking for a way out.” Mr. Justice Harlan continues:
This case is nothing short of a complete vindication of Mr. Justice Frankfurter’s warning nine years ago ‘of the mathematical quagmire (apart from divers judicially inappropriate and elusive determinants) into which this Court today catapults the lower courts of the country.’ Baker v. Carr, 369 U.S. 186, 268 [82 S.Ct. 691, 7 L.Ed.2d 663] (1962) (dissenting opinion). With all respect, it also bears witness to the morass into which the Court has gotten itself by departing from sound constitutional principle in the electoral field. See the dissenting opinion of Mr. Justice Frankfurter in Baker v. Carr, supra, and my separate opinions in Reynolds v. Sims, 377 U.S. 533, 589 [84 S.Ct. 1362, 1395, 12 L.Ed.2d 506] (1964), and in Oregon v. Mitchell, 400 U.S. 112, 152 [91 S.Ct. 260, 279, 27 L.Ed.2d 272] (1970). I hope the day will come when the Court will frankly recognize the error of its ways in ever having undertaken to restructure state electoral processes.
“I would reverse the judgment below and remand the case to the District Court with directions to dismiss the complaint.”
While I personally agree with Mr. Justice Harlan, since the Supreme Court of the United States has entered this almost admitted impregnable political jungle, I have no alternative but to comply with this Mandate to act in these cases as best I can. While realizing my own short-comings and lack of expertise in the field of restructuring the structure of States’ political processes, I must follow the law, whether I agree with it or not.
At a time in the distant past, the test of constitutionality of State action seemed to depend on whether or not it could be shown that the action was arbitrary, unreasonable or capricious. As Mr. Justice Brandéis stated in the case of O’Gorman & Young v. Hartford Fire Insurance Co., 282 U.S. 251, 51 S.Ct. 130, 75 L.Ed. 324 (1931), the presumption *750of constitutionality of legislative action must prevail in the absence of some factual foundation in the record for overthrowing the action or where the record fails to show unreasonable action. (Citing cases at f/n 3.) See also “The Presumption of Constitutionality”, 31 Col.L. Rev. 1136 (1931).
Whitcomb v. Chavis, supra, appears to deviate and depart from this earlier concept and seems to foreordain and drape the Trial Judges with the awesome mantle of omnipotence and unerring clairvoyance in determining when State action “operate [s] to dilute or cancel the voting strength of racial or political elements”. It is apparent from the most cursory perusal of the testimony of the expert lay witnesses that reasonable men, and even the Judges disagree profoundly as to the propriety of the Texas Redistricting Board’s plan for reapportionment of its House and Senate.
Under the present concept, the primary test of constitutionality in these cases is not the question of reasonableness, vel non, but rather turns on the question of whether the evidence merely preponderates against the fairness of the plan.
I have been ever mindful of the admonition to me on the eve of my induction as a Federal Judge by the Honorable John R. Brown, Chief Judge, U. S. Court of Appeals for the Fifth Circuit, when he reminded me that I was “appointed, not anointed”. While I deplore the intrusion of the Federal Courts in the legislative affairs of the democratically elected officials of the sovereign State of Texas, who act as a Redistricting Board under the constitution of this State, it is apparent that I must follow the Mandate of the Supreme Court and declare portions of the Redistricting and Reapportionment Plan invalid, if it appears from a preponderance of the evidence that the plan in any respect fails to meet the “one-person, one-vote” concept or it “dilutes or minimizes” and not necessarily “cancels” minority voting rights.
The uncertainty and ambiguity of testing constitutionality as set forth in Whitcomb v. Chavis, supra, makes its application most difficult, if not impossible, to this case. The only directive to the lower Court is that it is instructed to endeavor to prevail upon the Indiana Legislature to consider certain elements and factors that might improve the ethnic and minority voting representations of the losers in a pluralitarian election. All of this is apparently done under the Civil War Amendments. The Federal Courts are thus in effect using these amendments to judicially amend the Constitution without following the method prescribed by the Constitution itself. Federal Courts are enlarging rights not given under the Constitution by entering fields of purely State and local legislative management where there is little or no expertise on the part of the Federal Judiciary. Interjection by Federal Courts in this manner is a sad indictment and commentary on our heretofore sacred Democratic processes and we are in effect judicially branding our Democratic form of Government a failure in the form created under our Constitution.
For the reasons stated, I believe that this Court should exercise as much judicial restraint as possible in declaring the State Reapportionment Plan unconstitutional; however, where in those instances, as here, the Court has deemed it necessary, the State should have every opportunity to correct its alleged mistakes where time permits.
THE CHALLENGE OF THE LEGISLATIVE REDISTRICTING BOARD’S PLAN FOR THE HOUSE OF REPRESENTATIVES
As the Opinion and Judgment of the Court in this case correctly stales, various plaintiffs challenged the constitutionality of the entire Legislative Redistricting Board’s plan for the House of Representatives on the grounds that unconstitutional deviations and disparities exist in the population of many House Dis*751tricts and that multi-member districts in Texas are not uniform and result in invidious discrimination among certain racial and political elements.
In declaring the entire plan invalid my two learned colleagues rely on prior holdings of the Supreme Court that whenever the fact of deviation from population equality is raised, the burden falls upon the State to present “acceptable reasons for the variations among the populations of the various legislative districts”. Swann v. Adams, 1967, 385 U.S. 440, 87 S.Ct. 569, 17 L.Ed.2d 501; and Kirkpatrick v. Preisler, 1969, 394 U.S. 524, 89 S.Ct. 1225, 22 L.Ed.2d 519 (a Congressional redistricting case which holds “(the Constitution) permits only the limited population variances which are unavoidable despite a good-faith effort to achieve absolute equality or for which justification is shown.” However, the Supreme Court permits greater population deviation in the apportionment of State Legislatures, which is involved in this case. Reynolds v. Sims, 377 U.S. at 577-578, 84 S.Ct. 1362, 12 L.Ed.2d 506. See also Abate v. Mundt, 1971, 403 U.S. 182, 91 S.Ct. 1904, 29 L.Ed.2d 399; which upheld a county legislative apportionment with a total deviation of 11.9%. However, the Court itself made very clear that Abate was sui generis, involving only local government apportionment. And the Kirkpatrick holding may substantially erode the “tolerance” dictum in Reynolds. While it is obvious under the present constitutional standards that the evidence no longer has to establish that the State action, to be invalid, must be arbitrary, unreasonable or capricious; however, it must be more than mere suspicion, surmise or conjecture.
The percentage deviations shown in the legislative districts analyzed in the Opinion demonstrate that they are not unreasonable and are not, per se, a discrimination against “all of the people of Texas”, as the Opinion maintains. Furthermore, the State of Texas (although I doubt it was required to do so under the meager evidence on this point which plaintiffs in their Briefs concede) went forward and explained and gave adequate reasons for the deviations which admittedly did not exceed in excess of 5.7% on the plus side and was not more than 4.1% on the minus side, except, of course, in Dallas County, which was a multi-member district and which deviation in Dallas County has been cured by the Court’s prescribed single-member plan which this Court adopted and which replaced the multi-member district plan of Dallas, which allegedly had an approximately minus deviation of 21.6%. Certainly, I do not feel it is fair to the Redistricting Board of Texas to declare the entire plan invalid, especially since the Dallas plan now with the new single-member districts meets the population requirements of “one-person, one-vote”.
My colleagues also criticize the entire State’s plan because it is allegedly not a product of legislative action, but of the action of a “board of five members, only one of whom is a member of the legislature”. This overlooks the fact that this is a Board created under the provisions of Article III, Section 28, of the Constitution of Texas, for the purpose of redistricting the House and Senate of the State, where the Legislature in effect authorizes this Board to act, if the Legislature fails to do so. A most important element that this Court overlooks is that the officials who have been constitutionally designated to fill this vital role are five of the most prestigious officials elected by all of the people of the State of Texas, to-wit: the Lieutenant-Governor, the Speaker of the House of Representatives, the Land Commissioner and the Comptroller of Public Accounts, which Board acted in this case under the advice and counsel of the also democratically elected Attorney General of Texas. The Opinion concludes that “we have serious doubts that this board did the sort of deliberative job contemplated by Reynolds [v. Sims] as worthy of judicial abstinence.” How the majority opinion reaches this conclusion from all the evidence in this case is a distinct mystery to me. In any event, the test is not the number of meet*752ings or the type of “deliberative job” done by the Redistricting Board. Actually, the test is one of population and, even here, the mathematics do not have to be precise. See Reynolds v. Sims, supra, which holds: “Mathematical exactness or precision is hardly a workable constitutional requirement.” (Emphasis supplied.)
The majority then finds that Texas has failed to justify the deviations which are analyzed in the opinion. All of the evidence adduced on the trial of this case conclusively establishes that a rational State policy does exist in Texas and requires adherence to County lines except in inter-urban areas under Article III, Section 26, Texas Constitution. In Texas, a violation of County lines is justifiable in legislative redistricting only where a requirement of Federal law may be demonstrated. Smith v. Craddick (Tex.Sup.Ct., 1971) 471 S.W.2d 375. Kirkpatrick v. Preisler, supra, supports the proposition that the State must do its best and must not settle for some fixed variation “small enough to be considered de minimus and to satisfy without question the ‘as nearly as practicable’ standard”.
The Supreme Court of Texas obviously had in mind the tolerances of Reynolds v. Sims, undefined as they are, and while recognizing the difficulties presented, said 471 S.W.2d at 379:
“However, this court may not abrogate any provision of the constitution for the sake of simplicity. The federal requirement of equal representation clearly has not nullified Section 26 of Article III in its entirety.”
The majority opinion then states that Texas has “also failed to provide rational justification for the haphazard combination of single and multi-member districts at issue in this case”. The opinion then continues:
“This irrationality, without reason justification, may be a separate and distinct ground for declaring the plan unconsitutional.”
I respectfully submit that such a holding is contrary to Whitcomb v. Chavis, supra, which states the following:
“But we have insisted that the challenger carry the burden of proving that multi-member districts unconstitutionally operate to dilute or cancel the voting strength of racial or political elements.”
Whitcomb v. Chavis, supra, at 149, 91 S.Ct. at 1872, concludes further that “ . . . there is no suggestion here that Marion County’s multi-member district, or similar districts throughout the State, were conceived or operated as purposeful devices to further racial or economic discrimination.”
Whitcomb v. Chavis, supra, further finds that “affirmance of the District Court would spawn endless litigation”.
I can think of nothing which illustrates better the agonizing chaos which exists in the area of restructuring the political districts of the sovereign States than this decision, wherein it is painfully obvious that the three Judges composing this very Court have almost no unanimity in finding a path from the impenetrable thicket in which the Federal Courts now find themselves.
The plaintiffs who challenge the multimember districts throughout the State of Texas, other than in Dallas and Bexar Counties, readily concede that because of the pressures and lack of time they were unable to develop a full record of unconstitutionality as to the other counties and the impact of the at-large systems throughout the State. Furthermore, since the evidence is admittedly deficient as to the alleged inequities in the other Counties, and there have been no complaints by any citizens from those other large metropolitan “at-large districts”, I feel that this is an additional reason for upholding the validity of the State’s plan after the inequities have been corrected by new plans which this Court has prescribed for Dallas and Bexar Counties.
While I wholeheartedly disagree with my colleagues, who have declared this State’s plan unconstitutional, I do concur in their generosity in affording the State of Texas until on or before July *7531, 1973 to adopt a plan to reapportion the legislative districts for the House of Representatives in accordance with the guidelines as set out in the Opinion and Judgment of this Court.
SUITS INVOLVING THE SENATORIAL DISTRICTS IN HARRIS AND BEXAR COUNTY
I join with Judge Goldberg in upholding the validity of the Reapportionment Plan of the State of Texas for its Senatorial Districts. The Senatorial Districts throughout the State are single-member districts and the population requirements of “one person, one vote” have apparently been achieved.
Inasmuch as no plan for Senatorial Redistricting in Bexar County or Harris County into different shaped single-member districts meets the wishes, requirements and needs of everyone and there is a vast difference of opinion almost equally divided as to what the best means of dividing the districts would be, and inasmuch as it appears that the plaintiffs have failed to sustain their burden of proving by a preponderance of the evidence that the Senatorial Districts operate to dilute or cancel the voting strength of racial or political elements, I agree that the action of the Redistricting Board is valid and constitutional.
The Supreme Court, in Kilgarlin v. Hill, 386 U.S. 120, 87 S.Ct. 820, 17 L.Ed.2d 771 (1967), approved the lower court’s statement that the court’s inquiry •ttmust end when it is satisfied that the judicial - ly-ascertainable standard of substantial equality of population in the districts has been achieved”. Kilgarlin v. Martin, 252 F.Supp. at 434.
In the Houston case, Senator Barbara Jordan, a Black, testified that she would not concede that she could not win from the new Senatorial District 11 because she believed that she could appeal to a broad base of the voters. Even Doctor Murray, the expert witness for the plaintiffs in the Houston case, concedes that a certain amount of gerrymandering is absolutely essential in any event in Harris County to meet the requirements of population and other considerations of population and other considerations such as ethnicticity, contiguity, and community of interests.
In the San Antonio (Bexar County) case, the two Senatorial posts are filled by an Anglo and a Mexican-American. The Mexican-Americans are not a minority in Bexar County; they comprise a group nearly equal in size to the Anglo group. Senatorial District 21 combines approximately 110,000 people of Bexar County with approximately 250.000 people from rural counties East, West and South of Bexar County, and although there is no real community of interest between the two groups, a division of some sort is necessary to maintain the “one person — one vote” requirement, and it appears that even if the 110.000 persons from Bexar County were to be taken from any other portion of Bexar County than from the North side, there would be no substantially greater community of interest established.
THE CHALLENGE AGAINST THE MULTI-MEMBER LEGISLATIVE DISTRICTS IN BEXAR AND DALLAS COUNTIES
While I deplore, as heretofore stated, the intrusion of the Federal Courts in the legislative affairs of the democratically elected officials of the sovereign State of Texas, Whitcomb v. Chavis, and its progeny, dictate that Federal Courts must do so where the preponderance of the evidence discloses that the State action “operate [s] to dilute or cancel the voting strength of racial or political elements”. In this connection, I personally feel that the evidence does in fact preponderate in this direction and that, based on this test, I concur with my colleagues that the Board’s Reapportionment Plans for multi-member districts in Bexar and Dallas Counties are unconstitutional for the various reasons stated in the majority opinion.
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