# The Attorney General of Texas May 30, 1981

Honorable BobBullock Comptroller ofPublic Accounts L.B.J. Building Austin, Texas 78174 Opinion No. ~~-350 Re: Constitutionality of SB-800, Senate Redistricting Bill

Dear Mr.Bullock: Youask usseveral questions inconnection with Senate Bill 800,‘which redistricts state senatorial positions. Your questions are directed at what the Texas Legislature may do in drawing up a reapportionment plan. They donot require usto determine the effect ofthe reapportionment ,plan which the Senate has enacted, or whether the Senate could have developed an alternate plan with particular characteristics. In any case, such inquiries would involve the investigation and resolution of fact questions, which cannot be done inthe opinion process. A brief discussion of the main principles governing reapportionment will provide a useful context for our answers to your questions. InReynolds v. Sims, 377 U.S. 533, 568 (1964),the Supreme Court held that the equal protection clause requires that seats in a state legislature must be apportioned on a population basis. U.S. Con&. amend. 14, S2. An apportionment plan which substantially dilutes the weight of some votes when compared with votes of persons living in other parts of the state is unconstitutional. B supfl! at 568. Districts must therefore be asnearly ofequal population aspracticable. !$ at 577. The Supreme Court has said that an apportionment scheme, on particular facts, might operate to minimize or cancel out the strength of racial or political elements of the population. Fortson v. Dorsey, 379 U.S. 433, 438-39 0965). Such an apportionment scheme would invidiously discriminate against rights protected by the fourteenth amendment of the United States Constitution. Burns v. Richardson, 384U.S. 73, 88~ (l966). L Thefederal Voting Rights Act of 1965adds another standard against which a reapportionment plan must be measured. It prohibits any state from denying or abridging the right of any United States citizen to vote on account of race, color, or membership in a language minority. 42 U.S.C. SSl973 to 1973d. 1973k to 19731(1976)

. Under the Act. chamres in **the**

p. 1156Honorable BobBullock - Page Two - (m-350)

election laws, including reapportionment laws, must be submitted to the United States Attorney General for hls approval. 42 U.S.C. Sl973c; Conner **V.** Wailer, 421U.S. 656 fl975); see also 46Fed. Reg. 874(l981)(to becodified in28C.F.R. S51.12~~c)).

Weturn to your first question: 1. TEX. CONST. art. 3, sec. 28, directs the Legislature to apportion the State into Senatorial districts agreeable to the provisions of Section 25 of Article 3. Federal **bIW** requires reapportionment to be based on equal population among districts, within certain allowable deviations. Within these allowable deviations, must the Legislature take into account the number ofqualified electors residing within each district as dictated byTEX. CONST. art. 3,sec. 25? Article IIl, section 25 of the Texas Constitution provides inpart that “the State shall be divided into Senatorial Districts

...according to the number of qualified electors, as nearly as may be

....” The section 25 requirement that the state be divided into senatorial districts on the basii ofqualified electors isunconstitutional on its face as inconsistent with the federal constitutional standard. In Kilgarlin v. Marti mfi C.A. No. 63-H-390 (W.D.Tex., January l&1965) (summary judgment), see also gar 252 F. Supp. 404,4ll (S.D. Tex. 1966), the court held that provision violated the equal protection clause of the fourteenth amendment of the United States Constitution. It didnot require apportionment ofsenatorial districts on apopulation basii resulting in districts as nearly of equal population as is practicable. SeeReynolds v.Sims, supra at 577. - Your second question isasfollows:

2. May an apportionment plan split counties into two or more Senatorial districts when an alternative plan can or could be drawn which maintains county integrity? No provision ln Texas or federal law invalidates an apportionment plan which Splits counties into two or more senatorial districts or requires a plan to maintain county integrity. Article III,section 25of the Texas Constitution merely requires that senatorial districts shall be ofcontiguous territory. Compare Tex. Const. art III, 926 (representative’s districts shall follow County lines). e Smith v.Craddlck, 471S.W.2d 375(Tex. 1971).

Your third question isas follows: 3. When a county has sufficient population to justify one or more Senatorial districts entirely within that county% boundaries, must an apportionment plan provide that county with the maximum number of full Senatorial districts which can be contained within the county?

P. 1157. Honorable BobBullock - Page Three (Mu-350)

Wehave neither found, nor have we been directed to any provision of state or federal law which requires acounty to begiven the maximum number offull senatorial districts which can becontained within it.

Your fourth question isasfollows: 4. May an apportionment plan combine primarily rural counties with urban areas in a single Senatorial district, when alternative plans can or could be adopted which preserve rural communities ofinterest? Nostate or federal law prohibits the combination of rural and urban areas in a sinele senatorial district. The Suoreme Court has stated that “economic and other g&p interests” are insufficient to justify deviation from strict population equality. Reynolds v. Sims, supra at 579-80. See Kirkpatrick v. Preisler, 394 U.S. 526 U969). Thus, federal law does not require in reapportionment. sta=to recognize the common interests ofgroups It does, however, permit them to do so. See Kelly v. Bumpers, 340P. Supp.568, 57803.D.Ark. 1972). - In Gumfory v. Hansford County Commissioners Court, 561S.W.Bd28 (Tex. Civ. App.-Amarillo 1977, writ ref’d n.r.e.1. the court dealt with a challenee to countv commissioners precincts &awn so that in each precinct city dwelle;s formed a majority over persons residing in the rural area of the county. The court stated that the residents of the county outside the cities “are not a group subject to suspect classification fcr invidious discrimination under the 14th Amendment..

..” Cf. Lockport v. Citizens for Community Action, 430U.S.259(1977)(state might recogn= distinctive voter interests ofurban and rural voters in%fngleshot’ referendum).

Younext ask: 5. Because the United States Bureau of the Census has stated that the population figures for minority groups are “provisional”, pending the outcome of federal court litigation challenging the validity of these figures, may the Legislature reapportion into districts onthe basis ofthese figures? Census figures have been challenged in federal court as representing an undercount of blacks and hispanics. In Young v. Klutxnick, 497 F. Supp. 1318(ED. Mich. 19801,the district court enjoined the Bureau of the Census from certifying population totals for **any** states. Justice Stewart. however. staved this **order.** Klutxnick v. Young, Docket No. A-533 (Dec. 24, 1980);

.see Klut&ick~v~Care& 66L. Ed 2d 614, n. at 615 (l980). Thus, the census tottixve been certified to the President andprovided to the states asrequired bylaw. 13U.S.C. .6l4l(b),141(c). Inthe past, courts have acknowledged that not all inhabitants are counted inthe decennial census. Gaffnev v. Cummings, 412U.S. 735, 745-51 (l973). They are seen,

p. 1158Honorable BobBullock - Page Four (Mw-350)

nevertheless, as the best available source ofpopulation data for rediitricti%z purposes. Kirkpatrick v. Pr’eiler, 394 U.S. 528 Cl969L Article m, section 28 Of the Texas Constitution **reqUireS the**  **legislature to**  redistrict at its first session after the publication Of each ce\sus. e -UT? V. Legislative Redistricting Board, 471 S.W.2d 570 (Tex. 1971). The legtsiature may reapportion onthe basis ofthe recent census figures.

Your next question isas follows: 6. Because the guidelines for submitting a reapportionment plan to the United States Department of Justice under the Voting Rights Act specify that recent **eleCtiOn** return data be included in the submission, may the Legislature reapportion Senatori& districts without considering this data? Recent election return data is among those items generally required to be submitted in connection with redistricting plans. See 46Fed. Reg. 875-76 0981)(to be codified in28C.F.R. SS51.25,51.26). Noprovision7 the Voting Rights Act, however, requires that the legislature consider such data. Whether Senate consideration of this data would enhance its ability to draft a plan acceptable to the Attorney General beyond the scope ofyour question and thii opinion.

Your final question isss follows: 7. At least one Senator has expressed his opinion that the reapportionment plan has been drafted to intentionally discriminate against his political interest. May a reapportionment plan adopted by the ,Legislature have either the purpose and/or effect of diicriminating against any recognizable political interest? Areapportionment plan may not have the purpose or effect ofdiluting the voting strength of linguistic or racial minorities. 42 U.S.C. 1971,1973-1973dd-5 flST6). No group, however, has aconstitutionally protected right to legislative seats in proportion to its voting strength White v.Register, 412U.S.755,765-66 Ug73). A reapportionment plan is not necessarily in violation of the equal protection clause ifit seeks to protect incumbents. White v. Weiser, 412U.S. 783, 797fl973). An fnmmbent, however, has no right to have his district maintained during the ~@Wti~m~t Process. (RD. Penn. 1980). SeeCity 503F.Supp.663, 672

SUMMARY InPreparing aredistricting plan, the legislature need not take into account the number of qualified voters in senatorial

p. 1159Honorable BobBullock - Page Five @w-350)

districts as required by article II$ section 25 of the Texas Constitution, since that requirement was struck down by a federal court. An apportionment plan may split counties into two or more senatorial districts when an alternative plan could be drawn maintaining county integrity. Acounty need not be given the maximum number of full senatorial districts which can be contained within it. An apportionment plan may combine primarily rural counties with urban areas inasingle senatorial district. The legislature may reapportion on the basis of the recent census fiies. Nolaw requires the legislature to consider in drafting its reapportionment plan the recent election return data required to be submitted to the Department ofJustice **under**the Voting Rights Act. Areapportionment plan need not protect the districts of incumbents, nor must it guarantee any group legislative seats in proportion to its voting strength.

g-g

Attorney General ofTexas JOHN W.FAINTER, JR. First Assistant Attorney General RICHARD B.GRAY, IIl Executive Assistant Attorney General Prepared bySusan L.Garrison Assistant Attorney General APPROVEDI OPINION COMMITTEE Susan L.Garrison, Chairman Jon Bible Rick Gilpin Jim Moelinger

p. 1160