# Avery v. Midland County/Dissent Fortas

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United States Supreme Court
390 U.S. 474
Avery v. Midland County
Argued: Nov. 14, 1967. --- Decided: April 1, 1968
Mr. Justice FORTAS, dissenting.
I would dismiss the writ in this case as improvidently granted. The Texas Supreme Court held the districting scheme unlawful under the Texas Constitution. It ordered redistricting. In this difficult and delicate area I would await the result of the redistricting so that we may pass upon the final product of Texas' exercise of its governmental powers, in terms of our constitutional responsibility, and not upon a scheme which Texas itself has invalidated.
The Court's opinion argues (ante, at 478, n. 2) that the Texas Supreme Court's order is a final judgment because it contemplates no further proceedings in the Texas courts, although it holds the present districting unlawful and requires the Commissioners Court to redistrict. I do not reach this point.
The Court acts now to superimpose its own formula because it disagrees with the standard for redistricting that the Texas Supreme Court states. That standard directed redistricting on the basis of the 'number of qualified voters, land areas, geography, miles of county roads and taxable values.' 406 S.W.2d 422, 428. This standard may or may not produce a result which this Court or I would find constitutionally acceptable. We cannot know in advance how the melange of factors stated by the Texas court would emerge from the mixing machine of the Texas authorities who would deal with the problem. It is clear that the extreme imbalance now prevailing would be eliminated, because the Texas Supreme Court has held it unconstitutional. It might be that the substitute finally worked out would be such that a majority of this Court would not reject it as a denial of equal protection of the laws. After all, at the last Term of this Court, we accepted as passing the scrutiny of the Constitution, the less-than-mathematically perfect plans in Dusch v. Davis, 387 U.S. 112, 87 S.Ct. 1554, 18 L.Ed.2d 656 (1967), and Sailors v. Board of Education of Kent County, 387 U.S. 105, 87 S.Ct. 1549, 18 L.Ed.2d 650 (1967).
The Court, however, now plunges to adjudication of the case of Midland County, Texas, in midstream, apparently because it rejects any result that might emerge which deviates from the literal thrust of one man, one vote. Since it now adopts this simplistic approach, apparently the majority believes that it might as well say so and save Texas the labor of devising an answer.
I am in fundamental disagreement. I believe, as I shall discuss, that in the circumstances of this case equal protection of the laws may be achieved-and perhaps can only be achieved-by a system which takes into account a complex of values and factors, and not merely the arithmetic simplicity of one equals one. Dusch and Sailors were wisely and prudently decided. They reflect a reasoned, conservative, empirical approach to the intricate problem of apply constitutional principle to the complexities of local government. I know of no reason why we now abandon this reasonable and moderate approach to the problem of local suffrage and adopt an absolute and inflexible formula which is potentially destructive of important political and social values. There is no reason why we should insist that there is and can be only one rule for voters in local governmental units-that district for units of local government must be drawn solely on the basis of population. I believe there are powerful resons why, while insisting upon reasonable regard for the population-suffrage ratio, we should reject a rigid, theoretical, and authoritarian approach to the problems of local government. In this complex and involved area, we should be careful and conservative in our application of constitutional imperatives, for they are powerful.
Constitutional commandments are not surgical instruments. They have a tendency to hack deeply-to amputate. And while I have no doubt that, with the growth of suburbia and exurbia, the problem of allocating local government functions and benefits urgently requires attention, I am persuaded that it does not call for the hatchet of one man, one vote. It is our duty to insist upon due regard for the value of the individual vote but not to ignore realities or to bypass the alternatives that legislative alteration might provide.
I agree that application of the Equal Protection Clause of the Constitution, decreed by this Court in the case of state legislatures, cannot stop at that point. Of course local governmental units are subject to the commands of the Equal Protection Clause. Cooper v. Aaron, 358 U.S. 1, 17, 78 S.Ct. 1401, 1408, 3 L.Ed.2d 5 (1958). That much is easy. The difficult question, and the one which the Court slights, is: What does the Equal Protection Clause demand with regard to local governmental units?
Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964), stands for the general proposition that the debasement of the right to vote through malapportionment is offensive to the Equal Protection Clause. It holds that where the allegedly debased vote relates to the State Legislature, a judicial remedy is available to adjudicate a claim of such debasement, and that, subject to some permissible deviation, the remedy is to require reapportionment on a population basis. Although the Court's opinion carefully emphasizes the appropriateness of allowing latitude to meet local and special conditions, 377 U.S., at 577 581, 84 S.Ct., at 1389-1391, its insistence upon the need for general correspondence of voting rights to population has come to be called the one man, one vote rule.
This rule is appropriate to the selection of members of a State Legislature. The people of a State are similarly affected by the action of the State Legislature. Its functions are comprehensive and pervasive. They are not specially concentrated upon the needs of particular parts of the State or any separate group of citizens. As the Court in Reynolds said, each citizen stands in 'the same relation' to the State Legislature. Accordingly, variations from substantial population equality in elections for the State Legislature take away from the individual voter the equality which the Constitution mandates. They amount to a debasement of the citizen's vote and of his citizenship.
But the same cannot be said of all local governmental units, and certainly not of the unit involved in this case. Midland County's Commissioners Court has special functions directed primarily to its rural area and rural population. Its powers are limited and specialized, in light of its missions. Residents of Midland County do not by any means have the same rights and interests at stake in the election of the Commissioners. Equal protection of their rights may certainly take into account the reality of the rights and interests of the various segments of the voting population. It does not require that they all be treated alike, regardless of the stark difference in the impact of the Commissioners Court upon them. 'Equal protection' relates to the substance of citizens' rights and interests. It demands protection adapted to substance; it does not insist upon, or even permit, prescription by arbitrary formula which wrongly assumes that the interests of all citizens in the elected body are the same.
In my judgment, the Court departs from Reynolds when it holds, broadly and generally, that 'the Fourteenth Amendment * * * forbids the election of local government officials from districts of disparate population.' Ante, at 478. This holding, literally applied as the Court commands, completely ignores the complexities of local government in the United States-complexities which, Reynolds itself states, demand latitude of prescription. The simplicity of the Court's ruling today does not comport with the lack of simplicity which characterizes the miscellany which constitutes our local governments.
As of the beginning of 1967, there were 81,253 units of local government in the United States. This figure includes 3,049 county governments, 18,051 municipal governments, 17,107 township governments, 21,782 school districts, and 21,264 other special districts. These units vary greatly in powers, structure, and function. The citizen is usually subject to several local governments with overlapping jurisdiction.
The Court in this case concedes that in a 'special-purpose unit of government,' the rights of certain constituents may be more affected than the rights of others. It implies that the one man, one vote rule may not apply in such cases. See ante, at 483 484. But it says that we do not here have to confront the implications of such a situation. I do not agree.
I submit that the problem presented by many, perhaps most, county governments (and by Midland County in particular) is precisely the same as those arising from special-purpose units. The functions of many county governing boards, no less than the governing bodies of special-purpose units, have only slight impact on some of their constituents and a vast and direct impact on others. They affect different citizens residing with their geographical jurisdictions in drastically different ways.
Study of county government leaves one with two clear impressions: that the variations from unit to unit are great; and that the role and structure of county government are currently in a state of flux. County governments differ in every significant way: number of constituents, area governed, number of competing or overlapping government units within the county, form, and means of selection of the governing board, services provided, the number and functions of independent county officials, and sources of revenue.
Some generalizations can be made about county governments. First, most counties today perform certain basic functions delegated by the State: assessment of property, collection of property taxes, recording of deeds and other documents, maintenance of rural roads, poor relief, law enforcement, and the administration of electoral and judicial functions. Some counties have begun to do more, especially by the assumption of municipal and policy-making functions. But most counties still act largely as administrative instrumentalities of the State.
Second, '(t)he absence of a single chief executive and diffusion of responsibility among numerous independently elected officials are general characteristics of county government in the United States.' Those who have written on the subject have invariably pointed to the extensive powers exercised within the geographical region of the county by officials elected on a countywide basis and by special districts organized to perform specific tasks. Often these independent officials and organs perform crucial functions of great importance to all the people within the county.
These generalizations apply with particular force in this case. The population of Midland County is chiefly in a single urban area. That urban area has its own municipal government which, because of home rule, has relative autonomy and authority to deal with urban problems. In contrast, the Midland County government, like county governments generally, acts primarily as an administrative arm of the State. It provides a convenient agency for the State to collect taxes, hold elections, administer judicial and peace-keeping functions, improve roads, and perform other functions which are the ordinary duties of the State. The powers of the Commissioners Court, which is the governing body of Midland County, are strictly limited by statute and constitutional provision. Although a mere listing of these authorizing statutes and constitutional provisions would seem to indicate that the Commissioners Court has significant and general power, this impression is somewhat illusory because very often the provisions which grant the power also circumscribe its exercise with detailed limitations.
For example, the petitioner cites Art. VIII, § 9, of the Texas Constitution and Article 2352 of the Texas Civil Statutes as granting the Commissioners Court authority to levy taxes. Yet, at the time this suit was tried, Art. VIII, § 9, provided that no county could levy a tax in excess of 80¢ on $100 property valuation. And Article 2352 allocated that 80¢ among the four 'constitutional purposes' mentioned in Art. VIII, § 9 (not more than 25¢ for general county purposes, not more than 15¢ for the jury fund, not more than 15¢ for roads and bridges, and not more than 25¢ for permanent improvements).
Another example is the authority to issue bonds. It is true, as the majority notes, that the Commissioners Court does have this authority. Yet Title 22 of the Texas Civil Statutes sets up a detailed code concerning how and for what purposes bonds may be issued. Significantly, Article 701 provides that county bonds 'shall never be issued for any purpose' unless the bond issue has been submitted to the qualified property-taxpaying voters of the county.
More important than the statutory and constitutional limitations, the limited power and function of the Commissioners Court are reflected in what it actually does. The record and briefs do not give a complete picture of the workings of the Commissioners Court. But it is apparent that the Commissioners are primarily concerned with rural affairs, and more particularly with rural roads. One Commissioner testified below that the largest item in the county budget was for roads and bridges. And, according to that Commissioner, the county does not maintain streets within the City of Midland. The Commissioners seem quite content to let the city council handle city affairs. 'The thing about it is, the city of Midland has the city council and the mayor to run its business, * * * and we have a whole county to run * * *.'
'Theoretically, the commissioners court is the governing body of the county and the commissioners represent all the residents, both urban and rural, of the county. But developments during the years have greatly narrowed the scope of the functions of the commissioners court and limited its major responsibilities to the nonurban areas of the county. It has come to pass that the city government with its legislative, executive and judicial branches, is the major concern of the city dwellers and the administration of the affairs of the county is the major concern of the rural dwellers.' 406 S.W.2d, at 428.
Moreover, even with regard to those areas specifically delegated to the county government by statute or constitutional provision, the Commissioners Court sometimes does not have the power to make decisions. Within the county government there are numerous departments which are controlled by officials elected independently of the Commissioners Court and over whom the Commissioners Court does not exercise control. The Commissioners view themselves primarily as road commissioners. 'The other department heads really have the say in that department. We merely approve the salary. We do not hire anyone in any department in Midland County except the road department. The department heads of the other departments do hire the employees.'
As the Texas Supreme Court stated, 'the county commissioners court is not charged with the management and control of all of the county's business affairs * * *. (T)he various officials elected by all the voters of the county have spheres that are delegated to them by law and within which the commissioners court may not interfere or usurp.' 406 S.W.2d, at 428. These officials, elected on a direct, one man, one vote, countywide basis, include the Assessor and Collector of Taxes, the County Attorney, the Sheriff, the Treasurer, the County Clerk, and the County Surveyor. The County Judge, who is the presiding officer of the Commissioners Court, is also elected on a countywide basis. Other county officials and employees are appointed by the Commissioners Court.
The elected officials are generally residents of the city, probably because of its preponderant vote. A Commissioner testified that 'Every elected official * * * in Midland County today (except the three rural commissioners), and it has been way back for years, has been elected by the people that live here in the city limits of Midland.' Another Commissioner testified that of about 150 employees of the county, only four of those who were not elected lived in the rural precincts. Of all the elected officials only the three rural commissioners lived outside the city limits. And, as I have noted, the fifth member of the Commissioners Court, its Chairman, is the County Judge who is elected at large in the county. It is apparent that the city people have much more control over the county government than the election of the Commissioners Court would indicate. Many of the county functions which most concern the city, for example, tax assessment and collection, are under the jurisdiction of officials elected by the county at large.
In sum, the Commissioners Court's functions and powers are quite limited, and they are defined and restricted so that their primary and preponderant impact is on the rural areas and residents. The extent of its impact on the city is quite limited. To the extent that there is direct impact on the city, the relevant powers, in important respects, are placed in the hands of officials elected on a one man, one vote basis. Indeed, viewed in terms of the realities of rights and powers, it appears that the city residents have the power to elect the officials who are most important to them, and the rural residents have the electoral power with respect to the Commissioners Court which exercises powers in which they are primarily interested.
In face of this, to hold that 'no substantial variation' from equal population may be allowed under the Equal Protection Clause is to ignore the substance of the rights and powers involved. It denies-it does not implement-substantive equality of voting rights. It is like insisting that each stockholder of a corporation have only one vote even though the stake of some may be $1 and the stake of others $1,000. The Constitution does not force such a result. Equal protection of the laws is not served by it.
Despite the fact, as I have shown, that many governmental powers in the county are exercised by officials elected at large and that the powers of the Commissioners Court are limited, the Court insists that the Commissioners Court is a unit with 'general governmental powers.' This simply is not so except in the most superficial sense. The Court is impressed by the fact that the jurisdiction of the Commissioners Court extends over the entire area of the county. But this is more form than reality.
Substance, not shibboleth, should govern in this admittedly complex and subtle area; and the substance is that the geographical extent of the Commissioners Court is of very limited meaning. Midland County's Commissioners Court has its primary focus in nonurban areas and upon the nonurban people. True, the county's revenues come largely from the City of Midland. But the Commissioners Court fixes the tax rate subject to the specific limitations provided by the legislature. It must spend tax revenues in the categories and percentages which the legislature fixes. Taxes are assessed and collected, not by it, but by an official elected on a countywide basis. It is quite likely that if the city dwellers were given control of the Commissioners Court, they would reduce the load because it is spent primarily in the rural area. This is a state matter. If the State Legislature, in which presumably the city dwellers are fairly represented 'Reynolds v. Sims), wishes to reduce the load, it may do so. But unless we are ready to adopt the position that the Federal Constitution forbids a State from taxing city dwellers to aid their rural neighbors, the fact that city dwellers pay most taxes should not determine the composition of the county governing body. We should not use tax impact as the sole or controlling basis for vote distribution. It is merely one in a number of factors, including the functional impact of the county government, which should be taken into account in determining whether a particular voting arrangement results in reasonable recognition of the rights and interests of citizens. Certainly, neither tax impact nor the relatively few services rendered within the City of Midland should compel the State to vest practically all voting power in the city residents to the virtual denial of a voice to those who are dependent on the county government for roads, welfare, and other essential services.
I have said that in my judgment we should not decide this case but should give Texas a chance to come up with an acceptable result. Texas' own courts hold that the present system is constitutionally intolerable. The 1963 population estimates relied upon in this case show that the district which includes most of the City of Midland with 67,906 people has one representative, and the three rural districts, each of which has its own representative, have 852; 414; and 828 people respectively. While it may be that this cannot be regarded as satisfying the Equal Protection Clause under any view, I suggest that applying the Court's formula merely errs in the opposite direction: Only the city population will be represented, and the rural areas will be eliminated from a voice in the county government to which they must look for essential services. With all respect, I submit that this is a destructive result. It kills the very value which it purports to serve. Texas should have a chance to devise a scheme which, within wide tolerance, eliminates the gross underrepresentation of the city, but at the same time provides an adequate, effective voice for the nonurban, as well as the urban, areas and peoples.

## Notes

* ↑ The Texas Supreme Court noted that the Commissioners Court, and not Texas' judicial courts, has power to redistrict. This view may prove to be troublesome, but we are not bound to anticipate either that the Commissioners Court will not property do the job or that Texas will not otherwise put its house in order in Midland County.
* ↑ Reynolds v. Sims did not put the Equal Protection Clause to a radical or new use. Its holding is in the mainstream of our equal protection cases. Our cases hold that people who stand in the same relationship to their government cannot be treated differently by that government. To do so would be to mark them as inferior, 'implying inferiority in civil society' (Strauder v. State of West Virginia, 100 U.S. 303, 308, 25 L.Ed. 664 (1880)), or 'inferiority as to their status in the community' (Brown v. Board of Education, 347 U.S. 483, 494, 74 S.Ct. 686, 691, 98 L.Ed. 873 (1954)). It would be to treat them as if they were, somehow, less than people.
* ↑ 'Since legislatures are responsible for enacting laws by which all citizens are to be governed, they should be bodies which are collectively responsive to the popular will. And the concept of equal protection has been traditionally viewed as requiring the uniform treatment of persons standing in the same relation to the governmental action questioned or challenged. With respect to the allocation of legislative representation, all voters, as citizens of a State, stand in the same relation regardless of where they live. * * * To the extent that a citizen's right to vote is debased, he is that much less a citizen.' 377 U.S., at 565, 567, 84 S.Ct., at 1383.
* ↑ U.S. Dept. of Commerce, Bureau of the Census, Census of Governments 1967, Governmental Units in 1967, at 1 (prelim. rept. Oct. 1967).
* ↑ If these complexities do not exist in a given case (that is, if the functions of the governing unit involved have an essentially equal impact upon all the citizens within its geographical jurisdiction), then the one man, one vote rule would apply as it did in Reynolds. Some city councils, for example, are in effect miniature state legislatures. Some county governing units have geographical jurisdiction which is co-extensive with a city or which includes only reasonably homogenous rural areas.
* ↑ See C. Adrian, State and Local Governments 210-217 (1960); C. Snider, Local Government in Rural America 119-139 (1957) (hereafter cited as Snider); International Union of Local Authorities, Local Government in the United States of America 13 14 (1961) (hereafter cited as Local Government); National Municipal League, Model County Charter xi-xxxviii (1956). See generally S. Duncombe, County Government in America (1966) (hereafter cited as Duncombe).
* ↑ See Duncombe 3-5.
* ↑ See U.S. Dept. of Commerce, Bureau of the Census, Census of Governments: 1962, Governmental Organization, Table 17.
* ↑ See U.S. Dept. of Commerce, Bureau of the Census, Governing Boards of County Governments: 1965.
* ↑ See Duncombe 70-102.
* ↑ See Duncombe 41-63.
* ↑ See U.S. Dept. of Commerce, Bureau of the Census, Census of Governments: 1962, Finances of County Governments, Table 11.
* ↑ See Duncombe 13-14.
* ↑ See W. Anderson & E. Weidner, State and Local Government 30-31 (1951); Snider 131-134.
* ↑ Local Government, at 14.
* ↑ See, e.g., ibid.; Duncombe 41-63; Snider 44-45, 252-254.
* ↑ In 1962 the population of Midland County was 67,717. More than 62,000 lived in the urban area governed by the municipal government. U.S. Dept. of Commerce, Bureau of the Census, Census of Governments: 1962, Governmental Organization 186.
* ↑ Tex.Const., Art. XI, § 5; R. Young, The Place System in Texas Elections (Institute of Public Affairs, University of Texas, 1965) 38.
* ↑ See W. Benton, Texas, Its Government and Politics 360-362 (1966) (hereafter cited as Benton); S. MacCorkle and D. Smith, Texas Government 339-340 (1964) (hereafter cited as MacCorkle); C. Patterson, S. McAlister, and G. Hester, State and Local Government in Texas 384-385, 388 (1961) (hereafter cited as Patterson); Municipal and County Government 113-114 (J. Claunch ed. 1961); F. Gantt, I. Dawson and L. Hagard (eds.), Governing Texas, Documents and Readings 254 (1966); C. McCleskey, The Government and Politics of Texas 303-304, 305 (1966) (hereafter cited as McCleskey). There is a home-rule provision in the Texas Constitution which applies to counties, Art. IX, § 3. But that provision is virtually unworkable and, as of 1966, there were no counties operating under home rule. Benton 372-375. See also McCleskey 304, and MacCorkle 341.
* ↑ The 1967 amendment to Art. VIII, § 9, maintains the 80 limitation and still speaks of 'the four constitutional purposes.' It provides, though, that the county 'may' put all tax money into one general fund without regard to the purpose or the source of each tax. For a discussion of the county's taxing power and other sources of county revenue, see Benton 367-368.
* ↑ This testimony appears in the typed transcript of record but not in the portions printed by the parties.
* ↑ See n. 21, supra. Commentators on Texas local government have noted this lack of control by the Commissioners Court. See e.g., MacCorkle 344-345; McCleskey 307, 310; Benton 369.
* ↑ Article VIII, § 14; Art. V, § 21; Art. V, § 23; Art. XVI, § 44; Art. V, § 20; and Art. XVI, § 44, of the Texas Constitution respectively.
* ↑ Article V, §§ 15, 18, of the Texas Constitution.
* ↑ For a description of county officials generally and of their functions, see McCleskey 306-310, MacCorkle 335-339, and Patterson 390-392. For a listing of county officials who are elected see U.S. Dept. of Commerce, Bureau of the Census, Census of Governments 1967, Elective Offices of State and Local Governments 117-118 (prelim. rept. Aug. 1967).
* ↑ See n. 21, supra.
* ↑ Note 24, supra. There was testimony below to the effect that the county judge votes only in case of a tie vote. But it appears that this limitation may be self-imposed. 'The county judge enjoys equal voting rights with all the other members of the commissioners' court, which includes the right to make or second any motion and the right to vote whether there be a tie among the votes of other members of the court or not.' 1 Opinions of the Attorney General of Texas 453 (No. 0-1716, 1939). See McCleskey, 307, n. 27.
* ↑ The Assessor and Collector of Taxes is elected by the qualified voters of the county at large. Tex.Const., Art. VIII, § 14; U.S. Dept. of Commerce, Bureau of the Census, Census of Governments 1967, Elective Offices of State and Local Governments 117 (prelim. rept. Aug. 1967). The Commissioners Court has power to adjust the Assessor and Collector's valuation. Art. VIII, § 18, of the Texas Constitution. However, testimony below indicated that the Commissioners Court sits to hear taxpayer complaints only a few days each year. The Commissioners Court does not go over the Assessor and Collector's tax rendition sheets before he sends notices to the taxpayers.
* ↑ Cf. Weinstein, The Effect of the Federal Reapportionment Decisions on Counties and Other Forms of Municipal Government, 65 Col.L.Rev. 21, 40-49 (1965).
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