# Avery v. Midland County/Opinion of the Court

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United States Supreme Court
390 U.S. 474
Avery v. Midland County
Argued: Nov. 14, 1967. --- Decided: April 1, 1968
Petitioner, a taxpayer and voter in Midland County, Texas, sought a determination by this Court that the Texas Supreme Court erred in concluding that selection of the Midland County Commissioners Court from single-member districts of substantially unequal population did not necessarily violate the Fourteenth Amendment. We granted review, 388 U.S. 905, 87 S.Ct. 2106, 18 L.Ed.2d 1345 (1967), because application of the one man, one vote principle of Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964), to units of local government is of broad public importance. We hold that petitioner as a resident of Midland County, has a right to a vote for the Commissioners Court of substantially equal weight to the vote of every other resident.
Midland County has a population of about 70,000. The Commissioners Court is composed of five members. One, the County Judge, is elected at large from the entire county, and in practice casts a vote only to break a tie. The other four are Commissioners chosen from districts. The population of those districts, according to the 1963 estimates that were relied upon when this case was tried, was respectively 67,906; 852; 414; and 828. This vast imbalance resulted from placing in a single district virtually the entire city of Midland, Midland County's only urban center, in which 95% of the county's population resides.
The Commissioners Court is assigned by the Texas Constitution and by various statutory enactments with a variety of functions. According to the commentary to Vernon's Texas Statutes, the court:
'is the general governing body of the county. It establishes a courthouse and jail, appoints numerous minor officials such as the county health officer, fills vacancies in the county offices, lets contracts in the name of the county, builds roads and bridges, administers the county's public welfare services, performs numerous duties in regard to elections, sets the county tax rate, issues bonds, adopts the county budget, and serves as a board of equalization for tax assessments.'
The court is also authorized, among other responsibilities, to build and run a hospital, Tex.Rev.Civ.Stat.Ann., Art. 4492 (1966), an airport, id., Art. 351 (1964), and libraries, id., Art. 1677 (1962). It fixes boundaries of school districts within the county, id., Art. 2766 (1965), may establish a regional public housing authority, id., Art. 1269k, § 23a (1963), and determines the districts for election of its own members, Tex.Const., Art. V, § 18, Vernon's Ann.St.
Petitioner sued the Commissioners Court and its members in the Midland County District Court, alleging that the disparity in district population violated the Fourteenth Amendment and that he had standing as a resident, taxpayer, and voter in the district with the largest population. Three of the four commissioners testified at the trial all telling the court (as indeed the population statistics for the established districts demonstrated) that population was not a major factor in the districting process. The trial court ruled for petitioner. It made no explicit reference to the Fourteenth Amendment, but said the apportionment plan in effect was not 'for the convenience of the people,' the apportionment standard established by Art. V, § 18, of the Texas Constitution. The court ordered the defendant commissioners to adopt a new plan in which each precinct would have 'substantially the same number of people.'
The Texas Court of Civil Appeals reversed the judgment of the District Court and entered judgment for the respondents, 397 S.W.2d 919 (1965). It held that neither federal nor state law created a requirement that Texas county commissioners courts be districted according to population.
The Texas Supreme Court reversed the Court of Civil Appeals, 406 S.W.2d 422 (1966). It held that under 'the requirements of the Texas and the United States Constitutions' the present districting scheme was impermissible 'for the reasons stated by the trial court.' 406 S.W.2d, at 425. However, the Supreme Court disagreed with the trial court's conclusion that precincts must have substantially equal populations, stating that such factors as 'number of qualified voters, land areas, geography, miles of county roads and taxable values' could be considered. 406 S.W.2d, at 428. It also decreed that no Texas courts could redistrict the Commissioners Court. 'This is the responsibility of the commissioners court and is to be accomplished within the constitutional boundaries we have sought to delineate.' 406 S.W.2d at 428-429.
In Reynolds v. Sims, supra, the Equal Protection Clause was applied to the apportionment of state legislatures. Every qualified resident, Reynolds determined, has the right to a ballot for election of state legislators of equal weight to the vote of every other resident, and that right is infringed when legislators are elected from districts of substantially unequal population. The question now before us is whether the Fourteenth Amendment likewise forbids the election of local government officials from districts of disparate population. As has almost every court which has addressed itself to this question, we hold that it does.
The Equal Protection Clause reaches the exercise of state power however manifested, whether exercised directly or through subdivisions of the State.
'Thus the prohibitions of the Fourteenth Amendment extend to all action of the State denying equal protection of the laws; whatever the agency of the State taking the action * * *.' Cooper v. Aaron, 358 U.S. 1, 17, 78 S.Ct. 1401, 1409, 3 L.Ed.2d 5 (1958).
Although the forms and functions of local government and the relationships among the various units are matters of state concern, it is now beyond question that a State's political subdivisions must comply with the Fourteenth Amendment. The actions of local government are the actions of the State. A city, town, or county may no more deny the equal protection of the laws than it may abridge freedom of speech, establish an official religion, arrest without probable cause, or deny due process of law.
When the State apportions its legislature, it must have due regard for the Equal Protection Clause. Similarly, when the State delegates lawmaking power to local government and provides for the election of local officials from districts specified by statute, ordinance, or local charter, it must insure that those qualified to vote have the right to an equally effective voice in the election process. If voters residing in oversize districts are denied their constitutional right to participate in the election of state legislators, precisely the same kind of deprivation occurs when the members of a city council, school board, or county governing board are elected from districts of substantially unequal population. If the five senators representing a city in the state legislature may not be elected from districts ranging in size from 50,000 to 500,000, neither is it permissible to elect the members of the city council from those same districts. In either case, the votes of some residents have greater weight than theose of others; in both cases the equal protection of the laws has been denied.
That the state legislature may itself be properly apportioned does not exempt subdivisions from the Fourteenth Amendment. While state legislatures exercise extensive power over their constituents and over the various units of local government, the States universally leave much policy and decisionmaking to their governmental subdivisions. Legislators enact many laws but do not attempt to reach those countless matters of local concern necessarily left wholly or partly to those who govern at the local level. What is more, in providing for the governments of their cities, counties, towns, and districts, the States characteristically provide for representative government-for decisionmaking at the local level by representatives elected by the people. And, not infrequently, the delegation of power to local units is contained in constitutional provisions for local home rule which are immune from legislative interference. In a word, institutions of local government have always been a major aspect of our system, and their responsible and responsive operation is today of increasing importance to the quality of life of more and more of our citizens. We therefore see little difference, in terms of the application of the Equal Protection Clause and of the principles of Reynolds v. Sims, between the exercise of state power through legislatures and its exercise by elected officials in the cities, towns, and counties.
We are urged to permit unequal districts for the Midland County Commissioners Court on the ground that the court's functions are not sufficiently 'legislative.' The parties have devoted much effort to urging that alternative labels 'administrative' versus 'legislative'-be applied to the Commissioners Court. As the brief description of the court's functions above amply demonstrates, this unit of local government cannot easily be classified in the neat categories favored by civics texts. The Texas commissioners courts are assigned some tasks which would normally be thought of as 'legislative,' others typically assigned to 'executive' or 'administrative' departments, and still others which are 'judicial.' In this regard Midland County's Comissioners Court is representative of most of the general governing bodies of American cities, counties, towns, and villages. One knowledgeable commentator has written of 'the states' varied, pragmatic approach in establishing government.' R. Wood, in Politics and Government in the United States 891-892 (A. Westin ed. 1965). That approach has produced a staggering number of governmental units-the preliminary calculation by the Bureau of the Census for 1967 is hat there are 81,304 'units of government' in the United States-and an even more staggering diversity. Nonetheless, while special-purpose organizations abound and in many States the allocation of functions among units results in instances of overlap and vacuum, virtually every American lives within what he and his neighbors regard as a unit of local government with general responsibility and power for local affairs. In many cases citizens reside within and are subject to two such governments, a city and a county.
The Midland County Commissioners Court is such a unit. While the Texas Supreme Court found that the Commissioners Court's legislative functions are 'negligible,' 406 S.W.2d, at 426, the court does have power to make a large number of decisions having a broad range of impacts on all the citizens of the county. It sets a tax rate, equalizes assessments, and issues bonds. It then prepares and adopts a budget for allocating the county's funds, and is given by statute a wide range of discretion in choosing the subjects on which to spend. In adopting the budget the court makes both long-term judgments about the way Midland County should develop-whether industry should be solicited, roads improved, recreation facilities built, and land set aside for schools-and immediate choices among competing needs.
The Texas Supreme Court concluded that the work actually done by the Commissioners Court 'disproportionately concern(s) the rural areas,' 406 S.W.2d, at 428. Were the Commissioners Court a special-purpose unit of government assigned the performance of functions affecting definable groups of constituents more than other constituents, we would have to confront the question whether such a body may be apportioned in ways which give greater influence to the citizens most affected by the organization's functions. That question, however, is not presented by this case, for while Midland County authorities may concentrate their attention on rural roads, the relevant fact is that the powers of the Commissioners Court include the authority to make a substantial number of decisions that affect all citizens, whether they reside inside or outside the city limits of Midland. The Commissioners maintain buildings, administer welfare services, and determine school districts both inside and outside the city. The taxes imposed by the court fall equally on all property in the county. Indeed, it may not be mere coincidence that a body apportioned with three of its four voting members chosen by residents of the rural area surrounding the city devotes most of its attention to the rpoblems of that area, while paying for its expenditures with a tax imposed equally on city residents and those who live outside the city. And we might point out that a decision not to exercise a function within the court's power-a decision, for example, not to build an airport or a library, or not to participate in the federal food stamp program-is just as much a decision affecting all citizens of the county as an affirmative decision
The Equal Protection Clause does not, of course, require that the State never distinguish between citizens, but only that the distinctions that are made not be arbitrary or invidious. The conclusion of Reynolds v. Sims was that bases other than population were not acceptable grounds for distinguishing among citizens when determining the size of districts used to elect members of state legislatures. We hold today only that the Constitution permits no substantial variation from equal population in drawing districts for units of local government having general governmental powers over the entire geographic area served by the body.
This Court is aware of the immense pressures facing units of local government, and of the greatly varying problems with which they must deal. The Constitution does not require that a uniform straitjacket bind citizens in devising mechanisms of local government suitable for local needs and efficient in solving local problems. Last Term, for example, the Court upheld a procedure for choosing a school board that placed the selection with school boards of component districts even though the component boards had equal votes and served unequal populations. Sailors v. Board of Education of Kent County, 387 U.S. 105, 87 S.Ct. 1549, 18 L.Ed.2d 650 (1967). The Court rested on the administrative nature of the area school board's functions and the essentially appointive form of the scheme employed. In Dusch v. Davis, 387 U.S. 112, 7 S.Ct. 1554, 18 L.Ed.2d 656 (1967), the Court permitted Virginia Beach to choose its legislative body by a scheme that included at-large voting for candidates, some of whom had to be residents of particular districts, even though the residence districts varied widely in population.
The Sailors and Dusch cases demonstrate that the Constitution and this Court are not roadblocks in the path of innovation, experiment, and development among units of local government. We will not bar what Professor Wood has called 'the emergence of a new ideology and structure of public bodies, equipped with new capacities and motivations * * *.' R. Wood, 1400 Governments, at 175 (1961). Our decision today is only that the Constitution imposes one ground rule for the development of arrangements of local government: a requirement that units with general governmental powers over an entire geographic area not be apportioned among single-member districts of substantially unequal population.
The judgment below is vacated and the case is remanded for disposition not inconsistent with this opinion.
It is so ordered.
Judgment vacated and case remanded.
Mr. Justice MARSHALL took no part in the consideration or decision of this case.
Mr. Justice HARLAN, dissenting.

## Notes

* ↑ Interpretive Commentary, Vernon's Ann.Tex.Const., Art. V, § 18 (1955). See also W. Benton, Texas: Its Government and Politics 360-370 (1966); Municipal and County Government (J. Claunch ed. 1961); C. McCleskey, The Government and Politics of Texas (1966).
* ↑ The Texas Supreme Court determined that neither the State nor the Federal Constitution requires that population be the sole basis for apportioning the Midland County Commissioners Court. There is therefore no independent state ground for the refusal to award the relief requested by petitioner. And since the Supreme Court opinion contemplated no further proceedings in the lower Texas courts, a 'final judgment' that population does not govern the apportionment of the Commissioners Court is before us. See Mercantile Nat. Bank at Dallas v. Langdeau, 371 U.S. 555, 83 S.Ct. 520, 9 L.Ed.2d 523 (1963); Local No. 438 Construction & General Laborers' Union, AFL-CIO v. Curry, 371 U.S. 542, 83 S.Ct. 531, 9 L.Ed.2d 514 (1963); Radio Station WOW v. Johnson, 326 U.S. 120, 65 S.Ct. 1475, 89 L.Ed. 2092 (1945).
* ↑ Cases in which the highest state courts applied the principles of Reynolds v. Sims to units of local government include Miller v. Board of Supervisors, etc., 63 Cal.2d 343, 405 P.2d 857, 46 Cal.Rptr. 617, 405 P.2d 857 (1965); Montgomery County Council v. Garrott, 243 Md. 634, 222 A.2d 164 (1966); Hanlon v. Towey, 274 Minn. 187, 142 N.W.2d 741 (1966); Armentrout v. Schooler, 409 S.W.2d 138 (Mo.1966); Seaman v. Fedourich, 16 N.Y.2d 94, 262 N.Y.S.2d 444, 209 N.E.2d 778 (1965); Bailey v. Jones, 81 S.D. 617, 139 N.W.2d 385 (1966); State ex rel. Sonneborn v. Sylvester, 26 Wis.2d 43, 132 N.W.2d 249 (1965). Newbold v. Osser, 425 Pa. 478, 230 A.2d 54 (1967), seemed to assume application of Reynolds. In opposition to these cases are only the decision of the Texas Supreme Court in the case before us and Brouwer v. Bronkema, 377 Mich. 616, 141 N.W.2d 98 (1966), in which the eight justices of the Michigan Supreme Court divided evenly on the question.
* ↑ A precedent frequently cited in opposition to this conclusion is Tedesco v. Board of Supervisors, 43 So.2d 514 (La.Ct.App.1949), appeal dismissed for want of a substantial federal question, 339 U.S. 940, 70 S.Ct. 797, 94 L.Ed. 1357 (1950). Petitioner points out that the Equal Protection Clause was not invoked in Tedesco, where the districting of the New Orleans City Council was challenged under the Privileges and Immunities Clause. A more realistic answer is that Tedesco, decided 12 years before Baker v. Carr, 369 U.S. 186, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962), has been severely undermined by Baker and the succeeding apportionment cases. See, among the great many cases so concluding, Delozier v. Tyrone Area School Bd., 247 F.Supp. 30 (D.C.W.D.Pa.1965).
* ↑ Cooper v. Aaron, 358 U.S. 1, 16, 78 S.Ct. 1401, 1408 (1958); see, e.g., See v. City of Seattle, 387 U.S. 541, 87 S.Ct. 1737, 18 L.Ed.2d 943 (1967); Thompson v. City of Louisville, 362 U.S. 199, 80 S.Ct. 624, 4 L.Ed.2d 654 (1960); Terminiello v. City of Chicago, 337 U.S. 1, 69 S.Ct. 894, 93 L.Ed. 1131 (1949).
* ↑ Inequitable apportionment of local governing bodies offends the Constitution even if adopted by a properly apportioned legislature representing the majority of the State's citizens. The majority of a State-by constitutional provision, by referendum, or through accurately apportioned representatives-can no more place a minority in oversize districts without depriving that minority of equal protection of the laws than they can deprive the minority of the ballot altogether, or impose upon them a tax rate in excess of that to be paid by equally situated members of the majority. Government-National, State, and local-must grant to each citizen the equal protection of its laws, which includes an equal opportunity to influence the election of lawmakers, no matter how large the majority wishing to deprive other citizens of equal treatment or how small the minority who object to their mistreatment. Lucas v. Forty-Fourth Colorado General Assembly of State of Colo., 377 U.S. 713, 84 S.Ct. 1459, 12 L.Ed.2d 632 (1964), stands as a square adjudication by this Court of these principles.
* ↑ Midland County is apparently untypical in choosing the members of its local governing body from districts. 'On the basis of available figures, coupled with rough estimates from samplings made of the situations in various States, it appears that only about 25 percent of * * * local government governing boards are elected, in whole or in part, from districts or, while at large, under schemes including district residence requirements.' Brief for the United States as Amicus Curiae 22, n. 31, filed in Sailors v. Board of Education of Kent County, 387 U.S. 105, 87 S.Ct. 1549, 18 L.Ed.2d 650 (1967), and the other 1966 Term local reapportionment cases.
* ↑ U.S. Dept. of Commerce, Bureau of the Census, Census of Governments 1967, Governmental Units in 1967, at 1 (prelim. rept. Oct. 1967).
This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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