## TXXE ATTORNEY GENERAL OF TEXAS

Hon. NedGranger Opinion No. M-1182 County Attorney Travis County Courthouse Re: Whether the boundaries of P. 0. Box 1748 Austin, Texas 78767 county commissioners precincts should be determined by the number of registered voters or by the total population in order to comply with the

“one man, one vote” rule Dear Mr. Granger: the U.S. Supreme Court.

Your recent letter requesting the opinion of this office concerning the referenced matter states, in part, as follows:

“Travis County Commissioners precinct boundaries are currently determined in accordance with the total number of persons registered to vote in Travis County. Therecent changes in election laws which nowpermit persons of age eighteen to vote have altered the previous ratio of registered voters to total population in some areas due, in part, to the concentration of students in some parts of Travis County.

“The Travis County Commissioners are now confronted with the following question:

“Should the forthcoming redefining of County Commissioners precinct boundaries be done in accordance with total numbers of persons registered to vote in Travis County, or does the U.S. Supreme Court’s requirement of ‘ one man, one vote’ require that precinct boundaries be established on the basis of total population within Travis County?” In Reynolds v. Sims, 377U.S. 533 (1964), the United States Supreme Court held that the Equal Protection Clause of the Fourteenth Amendmentapplied to the apportionment of state legislatures, that every qualified resident had the right to aballot for election of

-5769-Hon. NedGranger, page 2 (M-1182)

state legislators that was of equal weight to the vote of every other resident, and that such right was infringed whenlegislator were elected from districts of substantially unequal population. However, the Court also said in Reynolds v. Sims, supra, that:

“Wedonot here consider the difficult question of the proper remedial devices which federal courts should utilize in State legislative apportionment cases. Remedial techniques in this newanddeveloping area of the lawwill probably often differ with the circumstances of the challenged apportionment and avariety of local conditions.

. . .I’ 377U.S. at 585. In Avery v. Midland County, 390U.S. 474 (1968), the Supreme Court applied the Reynolds rule to Texas county commissio, precincts, andheld that local units with general governmental powers over anentire geographic area maynot, consistently with the Equal Protection Clause, be apportioned amongsingle-member districts of substantially unequal population.

The Court’s decision in Aver consistently spoke in ten of districts of equal population, -8 rat er than districts having an equal number of registered voters. The Court said

II

. . . Wehold today only that the Constitution permits no substantial variation from eual population in drawing districts for units o&al government having general governmental powers over the entire geographic area served by the body.” (Emphasis added.) 390 U.S. at 484-85. Further, in the course of the Avery decision, the Court stated th:

11 Consti;u;i&r Ourdecision today is only that the

imposes one ground rule for the development of arrangements of local government: arequirement that units with general governmental powers over anentire geographic area not be apportioned amongsingle-member districts of substantially unequal population.” (Emphasis added.) Id. at 435-86.

- In Hadley v. Junior College Dist. of Metro. Kansas City~ MO., 397 U.S. 50 (1970), the Supreme Court applied the Reynolds-

-5770-Hon. NedGranger, page 3 (M-l 182)

Aver rationale to the election of trustees of ajunior college 

# a+. istrict. The Court’s language in Hadley.spoke as follows:

I,

. . . Wetherefore hold today that as a general rule

. . . the EqualsProtection Clause of the Fourteenth Amendmentrequires that each qualified voter must be given anequal opportunity to participate in (elections)

. . andwhenmembers of an elected body are cho;en from separate districts, each district must be established on abasis that will insure, as far as is practicable, that equal numbers of voters can-vote for proportionally equal numbersof officials.” (Emphasis added.) 397U.S. at 56. The foregoing language of the Supreme Court would seemto indicate that districts composed of anequal number of registered voters, as opposed to persons, would be constitutionally sanctioned.

In Pate v. El~Paso County, Texas, 324 F.Supp. 935 (W.D. Tex.) (3-judge court) aff ’d 400 U.S. 806 (1970), the court had occasion to pass upon’thenstitutionality of anEl Paso County redistricting action in which the four county commissioners’ precincts hadbeen redrawn. In that case, the county commissioners had redrawn the precinct lines on the basis of registered voters in the district, rather than on apopulation basis. The federal district court concluded as follows:

I, (T)he Court having determined that because of

’the large military personnel in El Paso County whomaintain voting residence in other places adivision by registered voters would more fairly comply with the one man, one vote rule than bypopulation, and the Commissionersounty having submitted to the Court amapdividing the - county into four Commissioners precincts with voter registration as follows:

“Commissioners Precinct l---23,674

“Commissioners Precinct Z---23,721

“Commissioners Precinct 3---23,923

“Commissioners Precinct 4---23,971

-5771-Hon. NedGranger, page 4 (M-1182)

“In accordance with the registered voters list of January 31, 1970, the Court finds that said division as appears on said map. . . is reasonable andproper. ” 324 F.Supp. at 940. Thus, the Pate decision explicitly sanctioned the use of districts based on theumber of registered voters resident therein as being constitutional in light of Reynolds, Aver andHadle +’ +&a% sern, decision was affirmed, -without opinion, ythe Unite Court. Inview of the foregoing, we are of the opinion that the Travis County Commissioners Court mayadopt the redistricting plan which most fairly complies with the one man, one vote rule for its four commissioners’ precincts; that is, based upon that criterion, to .ado.ptone based on either registered voters or total population of the newdistricts, and that either of such methods of redistricting so adopted would be constitutional in light of the Supreme Court

“one man, one vote” rule, provided the numbers in each district, of either registered voters or total population, was substantially equa to that of the other districts.

In so holding, wewould point out that once acommissioner court decides onwhich of .the two formulas to use as abasis for redistricting (i.e., either registered voters or total population), it must apply the formula to each of its four commissioners’ precincts. SUMMARY Tocomply with the U.S. Supreme Court requirement of “one man, one vote”, acommissioners court may, in its judgment, depending upon which most fairly complies with the one man, one vote rule redistrict its- four precincts on the basis of either total registered voters or total population, resident in each precinct, provided that, as redistricted, the number of registered voters, or total population, in each precinct is substantially similar to the others. Once the registered voter or total population formula is adopted? it must be applied to each of the four commissioners’ precincts.

ey General of TexasHon. NedGranger, page 5
Prepared byAustin C. Bray, Jr. Assistant Attorney General APPROVED: OPINIONCOMMITTEE Kerns Taylor, Chairman W.E. Allen, Co-Chairman Gerald Ivey Bob Lemens Linward Shivers Harriet Burke SAMUEL

D. MCDANIEL Staff Legal Assistant ALFREDWALKER Executive Assistant NOLAWHITE First Assistant (M-1182)

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